United States v. Nahach Garay ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50054
Plaintiff-Appellee,
D.C. No.
v. 2:17-cr-00188-
RGK-1
NAHACH MANUEL GARAY, AKA
Nahach Guerrero, AKA Polar Bear,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted August 13, 2019
Pasadena, California
Filed September 17, 2019
Before: Mary M. Schroeder and Susan P. Graber, Circuit
Judges, and Michael H. Watson,* District Judge.
Opinion by Judge Schroeder
*
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
2 UNITED STATES V. GARAY
SUMMARY**
Criminal Law
The panel affirmed a conviction for being a felon in
possession of a firearm in a case in which the district court
denied the defendant’s motion to suppress evidence found as
a result of the search of his cell phone, seized from his rental
car after a high-speed chase.
Under Byrd v. United States , 138 S. Ct. 1518 (2018),
which clarified that Fourth Amendment standing is not
jurisdictional, the panel did not need to reach the
government’s threshold contention that the defendant lacked
standing to challenge the search of the phone before
analyzing the merits of the defendant’s Fourth Amendment
claims.
The panel held that the district court did not err in
concluding that the defendant’s cell phone was lawfully
seized as part of a valid inventory search, where there was no
reason to conclude that the search was used to rummage for
evidence. The panel noted that administrative errors should
not, on their own, invalidate inventory searches.
The panel held that the district court correctly determined
that probable cause supported the two warrants issued to
search the defendant’s cell phone. The panel explained that
affiants seeking a warrant may state conclusions based on
training and experience without having to detail that
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GARAY 3
experience. The panel concluded that there was a sufficient
factual basis for the issuing magistrate judges to conclude,
independently of the affiants’ beliefs, that evidence might be
found on the defendant’s cell phone.
COUNSEL
Michael Tanaka (argued), Los Angeles, California, for
Defendant-Appellant.
Julia L. Reese (argued), Assistant United States Attorney; L.
Ashley Aull, Chief, Criminal Division; Nicola T. Hanna,
United States Attorney; United States Attorney’s Office, Los
Angeles, California; for Plaintiff-Appellee.
OPINION
SCHROEDER, Circuit Judge:
Nahach Garay appeals his conviction under 18 U.S.C.
§ 922(g)(1) as a felon in possession of a firearm. He
challenges the denial of his motion to suppress evidence
found as a result of the search of his cell phone, seized from
his rental car after a high-speed chase. The phone contained
photographs that tied him to the firearm that was recovered
from the car. The district court ruled that the phone was
lawfully seized in an inventory search of the car and that the
warrants authorizing the search of the phone’s contents were
supported by probable cause.
The government’s threshold contention on appeal is that
Garay lacked standing to challenge the search of the phone
4 UNITED STATES V. GARAY
because he had abandoned any reasonable expectation of
privacy in its contents when he ran from the car. We need not
address this question. Under the Supreme Court’s recent
decision in Byrd v. United States, 138 S. Ct. 1518, 1530
(2018), such an inquiry is not jurisdictional, and, so, we need
not consider it before we analyze the merits of Garay’s Fourth
Amendment claim. Because we conclude that the searches of
both the car and the phone were lawful, we affirm.
BACKGROUND
When San Bernardino County deputy sheriffs attempted,
in March of 2017, to stop Garay for a traffic violation, Garay,
with a passenger in the car, led them on a high-speed chase.
The chase culminated in Garay’s crashing the car into a ditch
and attempting to flee on foot. A search of his person
revealed thousands of dollars in cash and quantities of four
different illegal drugs. He was placed under arrest.
With the car totaled in the ditch, the officers had to
arrange to have the car towed. In preparation, they searched
the contents of the car, finding two loaded rifles, ammunition,
and two cell phones, one of which was claimed by the
passenger. The officers filled out a Vehicle Report on which
they listed some property (firearms), but they did not list
other property in the “remarks” section. They booked the
rifles, ammunition, and cell phones as evidence.
To search the contents of the cell phones, state law-
enforcement officers obtained a warrant on the strength of an
officer’s affidavit describing the circumstances leading up to
the discovery of the phones. These circumstances included
the drugs and cash found on Garay’s person and the affiant’s
knowledge, based on training and experience, that individuals
UNITED STATES V. GARAY 5
who possess firearms take pictures of them and communicate
via text messages to further their criminal activity. When the
case was referred for federal prosecution, a second, federal
warrant was issued on the basis of similar information as well
as on the “collective experiences” of law enforcement agents
that felons prohibited from possessing guns use mobile
phones to coordinate buying and selling guns.
Garay contends that the warrantless seizure of the phone
itself was unreasonable and that the affidavits supporting the
search of the contents of Garay’s phone were inadequate.
DISCUSSION
I. The Issue of Standing
The government argues that Garay abandoned any
reasonable expectation of privacy he may have had in the
contents of his phone when he left it in a totaled car and tried
to flee from the arresting officers. This, the government
argues, is a threshold issue that prevents Garay from having
standing to challenge the search or seizure of the phone.
The Supreme Court recently clarified in Byrd that Fourth
Amendment standing, unlike Article III standing in the civil
context, is “not a jurisdictional question and hence need not
be addressed before addressing other aspects of the merits of
a Fourth Amendment claim.” 138 S. Ct. at 1530. We
conclude that the search and seizure of Garay’s cell phone
were both reasonable under the Fourth Amendment.
Accordingly, we need not decide whether Garay abandoned
all reasonable expectation of privacy in the cell phone.
6 UNITED STATES V. GARAY
II. The Inventory Search and the Reasonableness of the
Seizure of the Phone
Before towing or impounding a vehicle, officers may
seize and inventory the contents of that vehicle in order to
avoid liability for missing items. See South Dakota v.
Opperman, 428 U.S. 364, 369 (1976). If done according to
standardized criteria and not in “bad faith or for the sole
purpose of investigation,” police inventory procedures satisfy
the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367,
372 (1987).
The government correctly contends that the seizure of
Garay’s cell phone was justified as part of an inventory
search in preparation for the car’s towing. Garay does not
dispute that the decision to tow the car was a reasonable and
good-faith exercise of the officers’ care-taking function;
Garay had just been arrested and the car was totaled and lying
in a ditch. See also Cal. Veh. Code § 22651(h)(1)
(authorizing officers to tow car after driver is arrested). It is
well established that, once a vehicle has been impounded or
towed, police are permitted to inventory the car’s contents.
Opperman, 428 U.S. at 369. Garay contends, however, that
the officers used their authority to inventory the car’s
contents here to unlawfully rummage for evidence. Inventory
searches are consistent with the Fourth Amendment only if
they are not used as an excuse to rummage for evidence. See
Florida v. Wells, 495 U.S. 1, 4 (1990) (“an inventory search
must not be a ruse for a general rummaging in order to
discover incriminating evidence”).
To support his argument that this search was pretextual,
Garay cites the absence of any inventory sheet listing the
property found inside the car, a list required under the
UNITED STATES V. GARAY 7
sheriff’s department’s inventory policy. As noted above, the
officers listed only some property in the Vehicle Report,
though they booked additional property as evidence. The
district court dismissed this argument, pointing out that a
department’s policies do not define constitutional rights.
Such policies do, however, assist courts to determine whether
an inventory search is legitimate, as opposed to pretextual.
See United States v. Wanless, 882 F.2d 1459, 1463–64 (9th
Cir. 1989) (invalidating an inventory search that deviated
from required procedures).
In this case, we see no reason to hold that the officers
were rummaging for evidence. The contents of the wrecked
car had to be removed and safeguarded before the car was
towed from the site. That is the essence of an inventory
search. Because the site was in effect a crime scene, the
items in the car were sensibly treated as evidence. The
searching officer complied with the department’s inventory-
search policy in material respects. For instance, he obtained
the tow truck driver’s signature and noted the date and time
of the driver’s arrival; he obtained a file number for the
inventory; he checked a box on the relevant inventory form
indicating that items of potential value were in the car before
identifying and booking the items recovered from the car as
“evidence/property.”
That the officer did not complete the inventory list that
ordinarily would be completed as part of a department
inventory search is not, on its own, a material deviation from
policy. Other circuits have expressly recognized that the
failure to complete an inventory form does not invalidate an
inventory search. See United States v. Loaiza-Marin,
832 F.2d 867, 869 (5th Cir. 1987) (per curiam) (“failure to
compile the written inventory does not render the inventory
8 UNITED STATES V. GARAY
search invalid”); United States v. Trullo, 790 F.2d 205, 206
(1st Cir. 1986) (“We will not hold that the officer’s failure,
technically, to follow the inventory form procedures for
valuables meant it was not an inventory search.”); United
States v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985)
(“We also reject O’Bryant’s contention that the inventory
search exception to the general prohibition against
warrantless searches was violated because [the officer] did
not prepare a complete list of the briefcase's contents.”);
United States v. Richardson, 2000 WL 1273425, at *2 (4th
Cir. Sept. 5, 2000) (per curiam) (unpublished) (“[T]he failure
to complete an inventory list does not render suspect either
the motive for conducting the search or the reasonableness
thereof.”).
Further, we as well as several other circuits have upheld
inventory searches despite other comparable administrative
errors. See, e.g., United States v. Penn, 233 F.3d 1111,
1115–17 (9th Cir. 2000) (inventory search lawful even
though officer may have allowed passenger to remove
personal property from the car before the search, which was
“contrary” to “police and city policy”); see also United States
v. Williams, 777 F.3d 1013, 1016 (8th Cir. 2015) (loose items
of minimal value omitted from inventory list); United States
v. Garreau, 658 F.3d 854, 857 (8th Cir. 2011) (stolen firearm
omitted from inventory list); United States v. Cartwright,
630 F.3d 610, 616 (7th Cir. 2010) (incomplete inventory list);
United States v. Lopez, 547 F.3d 364, 371 (2d Cir. 2008)
(officer failed to “itemize each object”).
The underlying principle was perhaps best stated in
United States v. Rowland, where the Eighth Circuit explained
that administrative errors should not, on their own, invalidate
inventory searches: “There must be something else;
UNITED STATES V. GARAY 9
something to suggest the police raised ‘the inventory-search
banner in an after-the-fact attempt to justify’ a simple
investigatory search for incriminating evidence.” 341 F.3d
774, 780 (8th Cir. 2003) (quoting United States v. Marshall,
986 F.2d 1171, 1175 (8th Cir. 1993)). The point is also
illustrated by our recent decision in United States v. Johnson,
in which we held that the search was not an inventory search
“because the officers themselves explicitly admitted that they
seized items from the car in an effort to search for evidence
of criminal activity.” 889 F.3d 1120, 1127–28 (9th Cir. 2018)
(per curiam).
Here, by contrast, we find no reason to conclude that the
inventory search was used to rummage for evidence. Given
the circumstances leading up to the search, the officers no
doubt expected to find evidence of criminal activity inside the
vehicle. But that expectation would not invalidate an
otherwise reasonable inventory search. See United States v.
Bowhay, 992 F.2d 229, 231 (9th Cir. 1993) (explaining that
“dual motives” in inventory-search context are permissible).
The district court did not err in concluding that Garay’s cell
phone was lawfully seized as part of a valid inventory search.
III. Adequacy of Warrant to Search Cell Phone’s
Contents
Two magistrate judges, one state and one federal, issued
warrants to search the cell phone’s contents. Garay argues
that the affidavits contained in the warrant applications were
not supported by probable cause. The question before us,
therefore, is whether the magistrate judges had a substantial
basis to conclude that the warrant applications established
probable cause. See United States v. Celestine, 324 F.3d
1095, 1100 (9th Cir. 2003). An affidavit in support of a
10 UNITED STATES V. GARAY
search warrant shows probable cause if, under the totality of
the circumstances, it reveals “a fair probability that
contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
The district court found the support for each warrant to be
more than adequate. The affidavit in support of the state
warrant described all the relevant circumstances. These
included the high-speed chase leading up to the crash and
Garay’s attempt to flee, followed by Garay’s arrest and the
discovery of drugs and cash on his person, as well as the
discovery of loaded guns, ammunition, and cell phones inside
the car. The affidavit also recited the affiant’s training and
experience, reflecting that people who possess firearms “like
to take pictures of [those items]” with their cell phones, and
“will also communicate via text” regarding criminal activity.
When the case was later referred for federal prosecution,
the affidavit for the federal warrant covered the same ground
as the state affidavit, but was even more specific in stating
that the affiant, based on her training and experience, as well
as the “collective experiences” of other law enforcement
agents, knew that felons prohibited from owning guns “often
use digital devices, including mobile phones, to coordinate
buying or selling those guns . . . to promote their possession
of guns to others” and to contact suppliers for future
purchases or referrals.
Garay nevertheless contends that both warrants lacked
probable cause. He asserts that the affiants’ belief on the
basis of their “training and experience,” unadorned by
sufficient supporting details, cannot properly be considered
in establishing probable cause. He argues that, before the
affiants’ beliefs may be taken into consideration, the affiants
UNITED STATES V. GARAY 11
must detail the nature of their expertise or experience and
how that experience bears on the facts prompting the search.
Our standards, however, are not so stringent. We have
long held that affiants seeking a warrant may state
conclusions based on training and experience without having
to detail that experience. See, e.g., United States v.
Hendershot, 614 F.2d 648, 654 (9th Cir. 1980) (finding that
affiant’s conclusion “based on [his] experience from prior
bank robbery investigations” was proper; emphasizing that
“[i]t is not necessary to detail that experience to determine
that the conclusion is not capricious” (internal quotation
marks omitted)). We have also held that magistrate judges
may “rely on the conclusions of experienced law enforcement
officers regarding where evidence of a crime is likely to be
found.” United States v. Fannin, 817 F.2d 1379, 1382 (9th
Cir. 1987) (citing United States v. Crozier, 777 F.2d 1376,
1380 (9th Cir. 1985)).
Further, there was a sufficient factual basis for both
magistrate judges to conclude, independently of the affiants’
beliefs, that evidence might be found on Garay’s cell phone.
Garay relies on authorities in which the warrant applications
had contained no factual basis from which to connect the
place to be searched with the evidence sought. See, e.g.,
United States v. Underwood, 725 F.3d 1076, 1086 (9th Cir.
2013) (“[T]he affidavit provides no factual basis for the
conclusion that drug trafficking evidence would be found at
Underwood’s home.”). But here, the affidavits explained all
of the circumstances leading up to the search of the car that
had been wrecked, and explained that Garay was then
arrested for having drugs and cash on his person. These facts,
coupled with the affiants’ experience and beliefs, provide a
reasonable basis to infer that evidence tying Garay to the
12 UNITED STATES V. GARAY
criminal activity of which he was suspected might be found
on the cell phone. Magistrate judges may, as they likely did
here, draw their own reasonable inferences about where
evidence might be kept based on the nature of the suspected
offense and the nature of the evidence sought. Fannin, 817
F.2d at 1382; see also United States v. Lucarz, 430 F.2d 1051,
1055 (9th Cir. 1970).
We owe “great deference” to magistrate judges’ probable-
cause findings. United States v. Krupa, 658 F.3d 1174, 1177
(9th Cir. 2011) (quoting United States v. Hill, 459 F.3d 966,
970 (9th Cir. 2006)). The district court correctly determined
that the affidavits supporting both warrants in this case gave
rise to at least a fair probability that evidence of a crime
would be found on Garay’s cell phone.
AFFIRMED.