United States v. Noster ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50391
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00621-SVW
JOHN LEON NOSTER,

Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued October 23, 2008,
Submitted July 15, 2009
Pasadena, California
Filed July 15, 2009
Before: Consuelo M. Callahan and Sandra S. Ikuta,
Circuit Judges, and Milton I. Shadur,* District Judge.
Opinion by Judge Callahan;
Dissent by Judge Shadur
*The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
8857
UNITED STATES v. NOSTER 8861
COUNSEL
Sean K. Kennedy, Federal Public Defender, and Davina T.
Chen, Assistant Federal Public Defender, for the defendant-
appellant.
Thomas P. O’Brien, United States Attorney for the Central
District of California, and Craig H. Missakian, Assistant
United States Attorney, for the plaintiff-appellee.
OPINION
CALLAHAN, Circuit Judge:
John Leon Noster (“Noster”) pled guilty to two counts of
possessing unregistered firearms in violation of 26 U.S.C.
8862 UNITED STATES v. NOSTER
§ 5861(d) and was sentenced to sixty-one months’ imprison-
ment. He appeals the district court’s denial of his motion to
suppress evidence obtained from a truck and its attached
camper, both of which Noster obtained through fraudulent
loan applications and failed to make payments on for over a
year. He also appeals the district court’s imposition of a four-
level enhancement pursuant to United States Sentencing
Guidelines (“Guidelines”) § 2K2.1(b)(5) (2003) (subsequently
renumbered and referred to herein as § 2K2.1(b)(6)). We
affirm both the district court’s denial of Noster’s motion to
suppress and his sentence.
I.
A. The Investigation
In October 2002, Pasadena Police Department Detective
Dennis Beene (“Beene”) was assigned to investigate Noster’s
theft of several off-road vehicles from various dealerships.
Beene and his partner, Detective Gabriel Marquez
(“Marquez”), were on the Taskforce for Regional Autotheft
Prevention (“TRAP”), and learned that the Glendale police
were also investigating Noster in connection with the theft of
two all-terrain vehicles (“ATVs”)1 from Honda of Glendale.
Beene also learned that there was an outstanding warrant for
Noster’s arrest, which issued after two dealerships reported
Noster’s theft of ATVs in October and November of 2001. In
each instance, Noster had purchased ATVs by writing checks
and subsequently withdrawing the money from his bank
account, causing the checks to bounce.
Around the same time that Noster stole the ATVs, he
stopped making payments on a GMC Sierra truck and a Lance
camper,2 both of which he acquired in December 2000. Noster
1
The record refers to the off-road vehicles variously as motorcycles
and/or ATVs. We refer to them herein as “ATVs.”
2
The camper attached directly to the bed of the truck.
UNITED STATES v. NOSTER 8863
obtained the truck from Thorson GMC in Pasadena after mak-
ing an initial down payment and financing the rest through
GMAC. On the credit application, Noster falsely indicated
that he was employed.3 Noster similarly misrepresented his
employment status on his application to finance his purchase
of the camper through Bank of the West. When Noster
stopped making payments on both in October 2001, he owed
around $31,935 on the truck and $22,071 on the camper.
By the time Beene was assigned to investigate Noster’s
case in October 2002, neither GMAC nor Bank of the West
had been able to locate Noster in their respective efforts to
repossess the truck and camper. Beene learned of GMAC’s
repossession efforts by speaking with Dave Mundy from
GMAC on October 9, 2002. Beene also spoke with the owner
of Thorson GMC Pasadena, Tom George (“George”), who
told Beene that he would not have sold Noster the truck if he
had known that Noster was unemployed. Following this con-
versation, George signed a “CHP 180/Stolen Vehicle Report,”
which Beene entered into a statewide stolen vehicle database.4
The same day that Beene spoke with George, Beene inter-
viewed a Bank of the West representative, who advised him
of the bank’s unsuccessful attempts to locate Noster and
repossess the camper. Beene also interviewed two of the three
3
Noster listed his “current” employer as Easton, Inc., even though he
had not been employed by that company for over a month — a fact which
Beene confirmed in his investigation.
4
The CHP 180/stolen vehicle report states as follows (capitalization
altered): “Vehicle purchased by suspect Noster from dealership by fraudu-
lent means—false info. on credit application. $31,935 outstanding balance
due to suspect failing to make required monthly payments. Veh. entered
into sys. by Sec. Martinez.” In district court, Noster filed a declaration by
George stating that he “did not fill out a stolen vehicle report related to
John Noster or his truck.” However, Noster indicated during the suppres-
sion hearing that he would not contest the validity or authenticity of
George’s signature on the stolen vehicle report, and has challenged neither
on appeal.
8864 UNITED STATES v. NOSTER
dealers from whom Noster stole ATVs in 2001. One of those
dealers, Bill McLean (“McLean”), told Beene that Noster had
written a check for a down payment on two ATVs, and then
wrote a check for the balance, which bounced. Beene shared
with McLean information about Noster’s other thefts, includ-
ing details regarding how Noster had absconded with the
truck and camper.5
B. The Searches
On November 11, 2002, while Beene was on vacation,
McLean drove by Noster’s father’s home and spotted a truck
and camper parked nearby matching the descriptions given to
him by Beene. McLean notified the police, and Officers Mur-
phy and Capa of the Los Angeles Police Department
responded to the call. When the officers arrived on the scene,
McLean told them that he believed the truck and camper were
stolen, that Noster was the suspect, and that a warrant had
been issued for Noster’s arrest. McLean produced paperwork
describing the truck and its license plate number. The officers
ran the number through the stolen vehicle database, which
indicated that the truck had been reported stolen. Because the
truck was missing its license plate, the officers also ran the
truck’s VIN number, which confirmed the report. The officers
called their watch commander, who ordered them to impound
the truck.
In preparing to impound the truck, Officer Murphy discov-
ered a backpack on the rear driver side floor containing what
appeared to be an explosive device. They ceased their search,
evacuated the area and contacted the Los Angeles Police
Department bomb squad. Marquez and other TRAP officers
also arrived on the scene, and Marquez entered the locked
camper, purportedly to clear it of persons or possible explo-
5
Beene apparently also shared with McLean a description of the truck
and its license plate number, as well as the address of Noster’s father’s
home, which was the address Noster had given on his credit applications.
UNITED STATES v. NOSTER 8865
sive devices. After the incendiary device was rendered safe,
the truck was impounded, and later taken to a private tow yard
(Ken’s Tow).
At some point prior to the impoundment, the officers
learned from McLean that Noster’s father’s house was
nearby. As they approached the house, Noster emerged and
identified himself. The officers detained Noster for possession
of an explosive device, and took him into custody after dis-
covering the warrant for his arrest.
Following Noster’s arrest and the impoundment of the
truck, Marquez prepared a search warrant for Noster’s
father’s home, which was executed on November 12, 2002.
He recovered, among other things, a set of keys to the
impounded truck, and proceeded to Ken’s Tow where he
tested the keys and found several documents and a Toshiba
laptop inside the truck. Marquez left the items in place, which
was secured in an enclosed building at the tow yard, and
waited for Beene’s return to complete the search.
Beene returned to work on November 18, 2002, and on
November 19, he and Marquez searched the truck and camper.6
Documents recovered from the camper included receipts from
a storage facility in Noster’s name. The officers contacted the
facility’s manager, who confirmed that Noster rented a unit
there. They obtained a search warrant for the storage unit,
which was executed on November 21, 2002.
In executing the warrant, the officers found a number of
items including, but not limited to: (1) three pipe bombs, (2)
6
During the search, Beene pried open a padlocked storage container on
top of the camper, which revealed a plastic bag containing the same type
of incendiary device discovered in the truck’s cab during the initial search.
Beene and Marquez evacuated the area and contacted the bomb squad.
Noster was not ultimately charged with possession of this incendiary
device, and did not challenge its discovery in his suppression motion.
8866 UNITED STATES v. NOSTER
six 55-gallon drums, which the manager believed were filled
with gasoline, (3) seven assault rifle magazines (one of which
was loaded with 20 bullets), (4) what appeared to be a rifle
silencer or barrel extender, (5) a rifle drum, (6) another smal-
ler rifle magazine, and (7) a yellow paper tablet containing
what appeared to be plans for using a gyrocopter7 or ATV to
bomb large structures.8
C. Procedural Background
Noster was convicted and sentenced in state court in con-
nection with his theft of the ATVs. In May 2004, near the end
of Noster’s term in state prison, a federal grand jury indicted
him on two counts of possessing unregistered firearms in vio-
lation of 26 U.S.C. § 5861(d). The first count charged him
with possession of the incendiary device found in the truck on
November 11, 2002 (just prior to the impoundment), and the
second count charged him with possession of the pipe bombs
discovered at the storage facility on November 21, 2002.
On October 18, 2004, Noster filed a motion to suppress
both the incendiary device and the pipe bombs. In denying
Noster’s motion, the district court held that Noster could not
challenge the searches because he did not have a legitimate
expectation of privacy in the truck or camper due, in part, to
his failure to make payments on either for over a year. Fur-
ther, the district court held that even if Noster could challenge
7
A “gyrocopter” is “a small, light single-seater autogiro,” similar to a
helicopter. The New Oxford American Dictionary 761 (2001).
8
Noster’s handwritten notes read as follows:
Gyro choppers, quad runner, develop incendiaries that ignite with
a delay of at least five seconds. If you want to destroy structure
there are two options (1) to drop a gyro. This would limit the size
of the instrument. Not over twenty pounds. But would cause the
most action for its weight. (2) [sic] to place the instrument close
to the object in question. This would require a much larger instru-
ment because it disperses over a much larger area. You would
have to get close to the object without detection.
UNITED STATES v. NOSTER 8867
the searches, the evidence was obtained lawfully. Specifically,
it held that the incendiary device was obtained during a lawful
inventory search, and that discovery of this device provided
probable cause to search the entire truck and camper.
On February 1, 2005, Noster pled guilty to both counts and
was sentenced to sixty-one months in prison. The sentence
reflected a four-level enhancement under § 2K2.1(b)(6) of the
Guidelines for Noster’s intent to use of the incendiary device
in connection with a specifically contemplated felony, i.e.,
“economic terrorism.”9
II.
Noster appeals the district court’s denial of his motion to
suppress and its application of § 2K2.1(b)(6) of the Guide-
lines. We affirm on both issues.
A. Exclusion Is Not Warranted
1. Exclusionary Rule
[1] “The exclusionary rule operates as a judicially created
remedy designed to safeguard against future violations of
Fourth Amendment rights through the rule’s general deterrent
effect.” Ariz. v. Evans, 514 U.S. 1, 10 (1995) (citing United
States v. Leon, 468 U.S. 897, 906 (1984)). “The question
whether the exclusionary rule’s remedy is appropriate in a
particular context has long been regarded as an issue separate
from the question whether the Fourth Amendment rights of
the party seeking to invoke the rule were violated by police
conduct.” Evans, 514 U.S. at 10 (quoting Illinois v. Gates,
462 U.S. 213, 223 (1983)).
9
As explained below, the government produced evidence that Noster
intended to recover a monetary profit in connection with the contemplated
effects of bombing various companies or commodities.
8868 UNITED STATES v. NOSTER
“The exclusion of evidence ‘has always been our last
resort, not our first impulse,’ ” Lopez-Rodriguez v. Holder,
560 F.3d 1098, 1103 (9th Cir. 2009) (quoting Herring v.
United States, 129 S. Ct. 695, 700 (2009)), and even an actual
violation of one’s Fourth Amendment rights “does not neces-
sarily mean that the exclusionary rule applies.” Herring, 129
S. Ct. at 700.
In Herring, the Supreme Court expounded on the purpose
and application of the exclusionary rule when it affirmed the
denial of a motion to suppress based on facts similar to those
presented here. Herring was stopped by police officers who
were informed by a dispatcher that a database revealed an out-
standing warrant for Herring’s arrest. Just minutes after the
arrest, however, the warrant clerk notified the officers that the
warrant had actually been recalled and remained in the data-
base due to a system error. By the time the officers were noti-
fied, they had uncovered methamphetamine and a firearm.
[2] The Court affirmed the denial of the motion to suppress
this evidence, holding that “when police mistakes are the
result of negligence such as that described here, rather than
systemic error or reckless disregard of constitutional require-
ments, the marginal deterrence [of applying the exclusionary
rule] does not ‘pay its way’ [i.e., outweigh the social costs of
letting the guilty go].” Herring, 129 S. Ct. at 704. The Court
explained that the critical inquiry for determining whether the
exclusionary rule should apply is whether the
police conduct [is] sufficiently deliberate that exclu-
sion can meaningfully deter it, and sufficiently cul-
pable that such deterrence is worth the price paid by
the justice system. As laid out in our cases, the
exclusionary rule serves to deter deliberate, reckless
or grossly negligent conduct . . . .
Id. at 702-03.
 UNITED STATES v. NOSTER 8869
[3] Here, Noster’s entire motion to suppress is based on
Beene’s allegedly improper entry of the stolen vehicle report
into the database. We assume without deciding that Noster
had a legitimate expectation of privacy in the truck and
camper, and therefore standing to challenge the search. But
we conclude that even if Beene made an error of state law by
reporting Noster’s GMC Sierra truck as a stolen vehicle and
entering a stolen vehicle report (which was signed by George)
into the stolen vehicle database, such an error did not violate
Noster’s Fourth Amendment rights because Beene had proba-
ble cause to believe that the truck was evidence of a crime. In
any event, the state-law error “was not so objectively culpable
as to require exclusion” under Herring. Id. at 703.
2. November 11, 2002 Search
First, we address Noster’s motion to suppress the incendi-
ary bomb discovered in the truck on November 11, 2002.
Noster contends that the seizure of and subsequent search of
the truck by Officers Capa and Murphy was unconstitutional
because it was based on Beene’s “false” report that the truck
was stolen.
This scenario is akin to the facts of United States v. Hens-
ley, 469 U.S. 221, 233 (1985). In Hensley, a police officer in
another jurisdiction issued a “wanted flyer” to other police
departments indicating that the defendant was wanted in con-
nection with a robbery investigation. Id. at 223. Police offi-
cers from another jurisdiction stopped the defendant’s vehicle
and uncovered evidence leading to his prosecution on other
charges. See id. at 223-25. Without reaching the issue of
whether the evidence should be excluded, the Court deter-
mined that there was no Fourth Amendment violation,
because the officers who made the stop acted in reasonable
reliance on a flyer issued by officers who had reasonable sus-
picion to justify the stop. Id. at 232-33; Evans, 514 U.S. at 12
(noting that the conclusion in Hensley that the evidence was
admissible rested on the determination that there was no
8870 UNITED STATES v. NOSTER
Fourth Amendment violation, and that this did not contradict
the Court’s earlier pronouncements that the question whether
the exclusionary rule applies is an issue separate from the
question whether the Fourth Amendment rights were vio-
lated).
[4] Like the arresting officers in Hensley, there is no dis-
pute that Officers Capa and Murphy acted in reasonable reli-
ance on the stolen vehicle database to conclude that the car
was stolen and thus “seizable” pursuant to California law. See
Cal. Veh. Code § 22651(c) (providing that an officer may
remove a vehicle from a public street where “a report has pre-
viously been made that the vehicle has been stolen”). More-
over, because we impute Officer Beene’s probable cause to
believe that the vehicle was evidence of criminal fraud to the
two officers, see Hensley, 469 U.S. at 233, their seizure and
search of the truck was also reasonable under the Fourth
Amendment. See Maryland v. Buie, 494 U.S. 325, 330 (1990)
(noting that a police officer could lawfully seize evidence
“which was in plain view and which the officer had probable
cause to believe was evidence of a crime”); United States v.
Bagley, 772 F.2d 482, 491 (9th Cir. 1985) (“[I]f the existence
of probable cause alone justifies the warrantless search of a
vehicle parked in a public place, certainly a warrantless sei-
zure of such a vehicle, based only on probable cause, also
falls within the automobile exception.”); United States v.
Cooper, 949 F.2d 737, 747 (5th Cir. 1991) (holding that “the
police may seize a car from a public place without a warrant
when they have probable cause to believe that the car itself is
an instrument or evidence of crime”); cf. Florida v. White,
526 U.S. 559, 565 (1999) (holding the warrantless seizure of
a vehicle reasonable under the Fourth Amendment when
police officers “had probable cause to believe that the vehicle
itself was contraband under Florida law” (emphasis omitted)).
The officers also reasonably relied on the report to conduct a
warrantless search of the truck prior to impounding it. See
Colorado v. Bertine, 479 U.S. 367, 369 (1987) (affirming
inventory search of a vehicle prior to impoundment); South
UNITED STATES v. NOSTER 8871
Dakota v. Opperman, 428 U.S. 364, 369 (1976) (holding that
officers may conduct an inventory search of a lawfully
impounded vehicle without a warrant).
[5] The circumstances surrounding the entry of the report
into the system do not undermine Beene or the officers’ prob-
able cause or the officers’ otherwise lawful search and sei-
zure. Contrary to the dissent’s suggestion, there is no
evidence that Beene fabricated the report in order to effect
Noster’s arrest or seizure of the truck — conduct which might
well justify exclusion. Rather, the record shows that the report
was the product of an investigation that led Beene to con-
clude, reasonably, that Noster had obtained the truck through
fraud akin to the fraud used to procure the ATVs.
[6] Indeed, the record shows that Beene did not sua sponte
enter the report into the database. Rather, he had the report
registered into the system after interviewing George, Mundy,
and Noster’s former employer, and after George — not Beene
— signed it. Although California law does not explicitly
authorize a dealer like George to report a vehicle stolen under
these circumstances, it appears that GMAC may have done so
as the “legal owner” of the truck.10 The fact that George,
10
The California Vehicle Code authorizes both the legal owner of a
vehicle and police officers to report a vehicle stolen. See Cal. Veh. Code
§ 10502 (providing that the legal owner of a vehicle may report a vehicle
as being stolen); Cal. Veh. Code § 10500(a) (providing that a peace officer
who receives a report based on reliable information that a vehicle has been
stolen in violation of California Vehicle Code § 10851 must report such
information to the Department of Justice Stolen Vehicle System). Califor-
nia law recognizes GMAC as the “legal owner” of the truck. See Cal. Veh.
Code § 370 (defining “legal owner” as a person holding a security interest
in a vehicle which is subject to the provisions of the Uniform Commercial
Code); but see Cal. Veh. Code § 17156 (providing that where a motor
vehicle is sold “under a contract of conditional sale, whereby the title to
such motor vehicle remains in the vendor,” the vendee shall be deemed the
owner until the vendor or his assignee retake possession of the motor vehi-
cle). It is unclear how sections 370 and 17156 coalesce in circumstances
8872 UNITED STATES v. NOSTER
rather than GMAC, signed the report does not demonstrate
bad faith on Beene’s part.11 Rather, the record shows that
Beene’s investigation uncovered reliable information regard-
ing Noster’s fraud and wrongful retention of the truck.
Although Noster’s actions do not neatly fit the elements of
vehicle theft under California Vehicle Code § 10851,12 the law
defines theft generally to include theft by false pretenses. See
Cal. Penal Code § 484 (defining theft to include embezzle-
ment, theft by trick and device, and theft by false pretenses).
Theft by false pretenses requires (1) criminal intent to defraud
the owner of his property, (2) a false representation that mate-
rially influenced the owner to part with his property, and (3)
that the owner was in fact defrauded. People v. Ashley, 267
P.2d 271, 279 (Cal. 1954).
Here, after talking to representatives of both GMAC and
the dealership, Beene believed that Noster had acquired the
truck through such criminal fraud. While the first element —
Noster’s intent to defraud — is not conclusively established
like those presented here, but at least one California case suggests that the
financing company is the legal owner. See Jerman v. Super. Ct., 54 Cal.
Rptr. 374, 376 (Ct. App. 1966) (holding that the financing company was
the legal owner of a vehicle where the buyer had defaulted under the con-
ditional sales contract).
11
Noster points out that the database entry identified Beene as the “vic-
tim” to be contacted, and argues that this is evidence of Beene’s bad faith.
However, the actual stolen vehicle report does not list Beene as the victim,
and there is no evidence indicating that Beene’s listing himself as a point
of contact in the system was improper.
12
A person violates § 10851 by “driving or taking of a vehicle belonging
to another person, without the owner’s consent, and with specific intent to
permanently or temporarily deprive the owner of title or possession.” Peo-
ple v. Green, 40 Cal. Rptr. 2d 239, 247 (Ct. App. 1995). The record dem-
onstrates Noster’s intent to deprive GMAC of its ownership interest in the
truck, but Noster’s conduct does not neatly fit the elements of this crime,
since his initial acquisition of the vehicle was “with the owner’s consent”
via a standard credit arrangement (albeit one tainted by his false represen-
tations).
UNITED STATES v. NOSTER 8873
given his initial payments on the truck, it might reasonably be
inferred from his false statements on the credit application.
Noster’s false representation as to his employment status also
supports the second element. Further, the purchase contract
provided that the seller relied on Noster’s statements, and
George later confirmed to Beene that he would not have sold
Noster the truck had he known that Noster was unemployed.
However, determining whether Noster “stole” the truck
through fraud is complicated by the fact that GMAC, not
George, was the “legal owner” of the truck at the time of
Beene’s investigation, and by a lack of evidence as to whether
GMAC would have extended credit to Noster had he dis-
closed his true employment status.
[7] Although Noster may not have ultimately been proven
guilty of “theft by false pretenses,” that is not the standard for
determining whether Beene had probable cause to believe that
the truck was stolen or purchased by fraudulent means (or
whether he acted in such disregard to Noster’s constitutional
rights in so reporting it that exclusion is warranted). We do
not require that the facts known to Beene establish Noster’s
guilt beyond a reasonable doubt. United States v. Corral-
Villavicencio, 753 F.2d 785, 788 (9th Cir. 1985). Moreover,
even if Officer Beene erred in determining that the purchase
of a truck by fraudulent means was equivalent to the truck
being “stolen” as a matter of California law, such a state-law
error would not be dispositive. In Virginia v. Moore, the
Supreme Court explained that a police officer does not violate
“the Fourth Amendment by making an arrest based on proba-
ble cause but prohibited by state law.” 128 S. Ct. 1598, 1601,
1607 (2008). The Court explained that “an arrest based on
probable cause” is reasonable under the Fourth Amendment
even when the arrest was illegal as a matter of state law. Id.
at 1605; see also United States v. Brobst, 558 F.3d 982, 990
(9th Cir. 2009) (applying the Court’s holding in Moore to sei-
zures of property). In other words, officers who have suffi-
cient probable cause or reasonable suspicion for a search,
seizure or arrest for purposes of the Fourth Amendment do
8874 UNITED STATES v. NOSTER
not violate a defendant’s constitutional rights even if the offi-
cers’ actions violate state laws. Applying Moore and Brobst
to this case, the question here is whether the report, upon
which Officers Capa and Murphy later reasonably relied, was
itself based on probable cause to believe that the truck was
seizable evidence of a crime, see Cooper, 949 F.2d at 747, not
whether filing a stolen vehicle report was erroneous as a mat-
ter of California law.
“Probable cause exists ‘when police officers have facts and
circumstances within their knowledge sufficient to warrant a
reasonable belief that the suspect had committed or was com-
mitting a crime.’ ” United States v. Wallace, 213 F.3d 1216,
1220 (9th Cir. 2000) (quoting United States v. Fouche, 776
F.2d 1398, 1403 (9th Cir. 1985)).
[8] Here, Beene’s belief that Noster had used fraudulent
means to procure the truck was reasonable based on his inves-
tigation. Beene explained that Noster’s theft of the ATVs
from various dealerships through fraudulent means (i.e.,
Noster’s withdrawal of money from his bank account shortly
after writing checks to pay for the ATVs), together with the
fraudulent statements on the credit applications for the truck
and camper, led him to believe that Noster had committed a
fraud in obtaining the truck. Beene’s perspective was further
supported by his interview of Mundy from GMAC, who con-
firmed that Noster had not made a payment on the truck for
over a year and had evaded GMAC’s repossession efforts, and
George, who said that he would not have sold Noster the truck
if he had known that Noster was unemployed.
[9] Although these facts may not ultimately prove Noster’s
theft of the truck by false pretenses, they are more than suffi-
cient to support Beene’s reasonable belief that Noster’s acqui-
sition and continued possession of the truck was unlawful. See
Wallace, 213 F.3d at 1220 (noting that officer “was not taking
the bar exam” when he stopped a vehicle based on his mis-
taken belief regarding which section of the vehicle code
UNITED STATES v. NOSTER 8875
defendant’s tinted windows violated). Such a reasonable
belief fails to establish either a violation of Noster’s constitu-
tional rights or the necessary culpability to justify exclusion.
Accordingly, we conclude that Beene had probable cause to
believe that the truck was seizable as evidence of a crime and
affirm the district court’s denial of Noster’s suppression
motion with respect to the incendiary device discovered dur-
ing the search on November 11, 2002.
3. November 19, 2002 Search
Noster also appeals the district court’s denial of his motion
to suppress the pipe bombs discovered in his rented storage
unit on November 21, 2002. The search warrant for that facil-
ity was based on evidence uncovered during a search of the
truck and camper on November 19. Noster challenges the
November 19 search of the camper based on (1) the alleged
unlawfulness of Beene’s initial stolen vehicle report, (2) the
officers’ failure to comply with Los Angeles Police Depart-
ment inventory procedures, and (3) the officers’ delay in com-
pleting the search and their failure to obtain a warrant.
We have already rejected Noster’s challenge to the stolen
vehicle report, and his other arguments are not persuasive.
The record shows that Beene and Marquez were “processing”
the truck/camper for evidence, and not simply taking an
inventory of the contents.13 Although the officers likely could
have obtained a warrant for this search, the Supreme Court
13
Even if the search was purely for inventory purposes and thus required
to comply with official inventory procedures, see United States v. John-
son, 936 F.2d 1082, 1084 (9th Cir. 1991) (citations omitted), the record
is unclear regarding which official policies would govern. Noster cites the
Los Angeles Police Department’s procedures, and the officers’ alleged
failure to comply with them by failing to list in the “remarks” section all
of the items seized from the truck and camper. However, it is unclear
whether the Los Angeles Police Department procedures would apply,
since Beene worked for the Pasadena Police Department in connection
with the TRAP.
8876 UNITED STATES v. NOSTER
has explained that “[t]he relevant test is not the reasonable-
ness of the opportunity to procure a warrant, but the reason-
ableness of the [search] under all the circumstances.”
Opperman, 428 U.S. at 373 (citations and internal quotation
marks omitted) (emphasis in original); see also Cooper v.
California, 386 U.S. 58, 62 (1967).
[10] We conclude that the search on November 19, 2002,
was supported by probable cause and was reasonable under
the circumstances. The police had properly seized the truck in
connection with the report that it was stolen, and Noster does
not argue that their continued retention of it was in any way
improper. Furthermore, the initial inventory search on
November 11 uncovered evidence of additional criminal
activity, namely, the incendiary device. See Cal. Pen. Code
§ 453 (prohibiting possession or manufacture of an incendiary
device with intent to willfully use it to set fire to or burn any
structure, forest land, or property). The discovery of this
device provided probable cause to search the truck and
camper for additional evidence of criminal activity. See Coo-
per, 386 U.S. at 61-62 (upholding a warantless search of an
impounded vehicle where search related to events surround-
ing the arrest).
[11] Nor did the officers’ delay in completing the search of
the truck and camper diminish the probable cause or render
the search otherwise unreasonable. Indeed, the “justification
to conduct a warrantless search does not vanish once the car
has been immobilized,” and “[t]here is no requirement that the
warrantless search of a vehicle occur contemporaneously with
its lawful seizure.” United States v. Johns, 469 U.S. 478, 484
(1985) (upholding the search of packages seized from a truck
three days after the initial seizure) (citations and internal quo-
tation marks omitted); United States v. Albers, 136 F.3d 670,
674 (9th Cir. 1998) (holding that where there is probable
cause to support the search, the search need not occur imme-
diately upon seizure but the delay must be reasonable). Here,
the truck was being retained, in part, in connection with
UNITED STATES v. NOSTER 8877
TRAP’s investigation of Noster’s vehicle thefts. Accordingly,
it was reasonable to await Beene’s return to complete the
search, as he was the lead detective on the case.
B. No Abuse of Discretion in Sentencing
Noster challenges the district court’s application of
§ 2K2.1(b)(6) of the Guidelines to enhance his sentence, con-
tending that there was insufficient evidence to show that he
had a “firm intent” to use the incendiary devices in connection
with another felony. We review the district court’s application
of the Guidelines to the facts for abuse of discretion. United
States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
[12] A defendant is subject to a four-level sentencing
enhancement under § 2K2.1(b)(6) if he “used or possessed
any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammuni-
tion with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony
offense.”14 United States Sentencing Guidelines Manual
§ 2K2.1(b)(6) (2006). “A ‘felony offense’ is ‘any offense
(federal, state, or local) punishable by imprisonment for a
term exceeding one year, whether or not a criminal charge
was brought, or conviction obtained.’ ” United States v. Jimi-
son, 493 F.3d 1148, 1149 (9th Cir. 2007) (quoting former
United States Sentencing Guidelines Manual § 2K2.1 cmt.
n.4). The government bears the burden of producing sufficient
evidence that the defendant intended to use or possessed the
firearm in connection with a specifically contemplated felony.
As we explained in Jimison,
[t]he plan to commit the felony need not be fully
14
Under the Guidelines, “firearm” is defined to include “any weapon . . .
which . . . is designed to or may readily be converted to expel a projectile
by the action of an explosive,” or “any destructive device.” United States
Sentencing Guidelines Manual § 1B1.1(G) (2006).
8878 UNITED STATES v. NOSTER
developed. Thus if a defendant acquires a gun
intending to use it in a bank robbery, he need not
have cased the location or even identified a specific
bank that he plans to rob. But he must have formed
a firm intent to use the gun for a felonious purpose.
493 F.3d at 1149.
[13] Here, the government asserted that Noster planned to
use the incendiary devices to bomb companies or commodi-
ties in a scheme to make money. Specifically, it cited evi-
dence suggesting that Noster believed that bombing specific
companies would drive down the price of stock and allow him
to make a profit by short selling the stock, and that bombing
certain commodities would increase their price, thereby
allowing him to cash in on previously purchased futures.15
The relevant evidence included a list of various commodities
and companies, commodities trading websites, shopping
malls, and “stocks” of specific companies with notes to
research the companies’ weaknesses.16 Another document
detailed Noster’s “plan” to destroy a structure by either drop-
ping incendiaries from a gyrocopter or by using an ATV to
approach the structure undetected with larger incendiaries.
The investigation uncovered the stolen ATVs, around
$180,000 in cash, and numerous books and publications con-
taining instructions for making homemade explosives. Noster
had the ingredients to make an incendiary device described in
one of these books, as well as two such completed devices.
15
Such a plan, whether attempted or completed, would constitute a “fel-
ony” for purposes of § 2K2.1(b)(6). See e.g., 18 U.S.C. § 844(i) (providing
a five-year minimum sentence for the destruction or attempted destruction
of any building used in interstate commerce by means of an explosive
device ); Cal. Pen. Code §§ 451 and 455 (providing that arson and
attempted arson are felonies).
16
The record also shows that Noster was fairly sophisticated financially.
He had a degree in accounting and experience with buying and selling
stocks and commodities, and admitted to discussing the impacts of terror-
ism on investments with an instructor from a class he took in 1994.
UNITED STATES v. NOSTER 8879
He also had extensive information about purchasing a gyro-
copter, including price lists, classified advertisements, nota-
tions about various models, and information regarding
gyrocopter flight school. In assessing all this evidence, the
district court noted that while Noster’s fraud crimes appeared
to be unrelated to the contemplated felony, they nonetheless
demonstrated “the mind-set of someone who is bold enough
to act out [such] a plan.” Although Noster’s scheme may not
have been well-developed, we conclude that the record con-
tains sufficient evidence to support the district court’s finding
that Noster had the “firm intent” and ability to use the incen-
diary devices in this way. Accordingly, we conclude that the
district court’s imposition of the four-level enhancement pur-
suant to § 2K2.1(b)(6) was not an abuse of discretion.
III.
In sum, we affirm the district court’s denial of Noster’s
motion to suppress, as the circumstances surrounding the
search of the truck do not warrant exclusion. We also con-
clude that the district court did not abuse its discretion in
enhancing Noster’s sentence pursuant to § 2K2.1(b)(6).
AFFIRMED.
SHADUR, Senior District Judge, dissenting:
When this case was submitted to our panel, we were well
aware that just over two weeks earlier—on the second day of
the Supreme Court’s October 2008 Term—the Court had
heard oral argument in Herring v. United States. Because it
seemed likely that the Fourth Amendment issue as posed in
Herring might cast light on the issue in this case, we elected
to hold off our opinion here until we learned of the Supreme
Court’s resolution in Herring.
8880 UNITED STATES v. NOSTER
That decision came down in mid-January, and although
Herring produced a five-to-four split in the Court, that divi-
sion has proved remarkable in terms of our case. Both the
five-Justice majority and the four-Justice minority, I believe,
have stated principles that call for reversal here. Let me
explain why.
Vigilantism—whether manifested by group action such as
that of a lynch mob or by individual rogue activity—is the
enemy of orderly law enforcement. It is infinitely worse when
practiced by a law enforcement officer such as Detective
Beene, for such officers are cloaked with authority that can
too readily turn the wheels of justice into wheels of constitu-
tional injustice.
Yet Beene, no doubt prompted by defendant Noster’s unsa-
vory past, seized on his delinquency in payments on the 2001
GMC Sierra truck to distort that delinquency into a nonexis-
tent “theft” of the truck. Never mind that Noster had not only
made the initial down payment but had regularly made the
first seven monthly payments on the vehicle before he went
delinquent. Never mind that GMAC Financial Services,
which had financed the transaction and was thus the creditor
directly interested in getting repaid for the credit that it had
extended (and having ample resources at its command), had
taken no steps to label Noster a thief. Instead its efforts had
been devoted exclusively to seeking an orderly repossession
of the truck, just as it would with any other buyer in default
on his payments. Noster was a delinquent purchaser, yes—but
a thief? Decidedly not.
To be sure, the majority is correct in observing that Beene
—like the officer in the Wallace case—“was not taking the
bar exam” when he then performed his sleight of hand, some-
how converting Noster’s assertedly “unlawful” (the majority’s
word) retention of the vehicle when he went delinquent after
having made the first seven payments into a purported “theft”
of that vehicle. But having said that, the majority has itself
UNITED STATES v. NOSTER 8881
had to strain in an effort to place Noster’s post-delinquency
retention of the vehicle under a “theft by false pretenses”
rubric (what “false pretenses” were made by Noster, pray tell,
when he bought the vehicle and thereafter proceeded to make
a substantial series of the required installment payments?).
Essentially the majority seeks to transmute base metal into
gold by transforming Detective Beene’s unequivocal state-
ment that the vehicle was stolen into some notion of “criminal
fraud” or the like. With all due respect, I believe that such
revisionist history regrettably whitewashes Beene’s own
unlawful conduct, effectively creating a kind of asserted
“probable cause” when in fact Beene was totally lacking in
probable cause to label the vehicle as “stolen.”
In any case, Beene did indeed go about creating a scenario
to convert Noster’s payment delinquency—a civil matter—
into a purported theft. To that end Beene first went to Thorson
GMAC Pasadena owner-president Tom George (“George”),
and he said in his later report that George signed a CHP
180/Stolen Vehicle Report. That version of events is certainly
questionable, for George later filed this declaration with the
district court:
I would not fill out nor sign a stolen vehicle report
in any case where a buyer failed to make payments
(to the finance company) on a car that was purchased
through Thorson GMC. Nor would I call the police
regarding a situation where the buyer failed to make
such payments. I would not have the authority to
report a vehicle stolen in that circumstance because
the dealership would not be considered the owner of
the vehicle. I did not call the police to report that Mr.
Noster stole his truck and I did not fill out a stolen
vehicle report relating to Mr. Noster or his truck.
However, I do know Detective Beene because he has
been at my dealership related to vehicles that have
been stolen off the lot.
8882 UNITED STATES v. NOSTER
But whoever signed the report in fact, there is no question that
Beene at least instigated the “stolen” characterization. In any
event, Beene then spoke with Bill McLean (“McLean”), who
had sold two motorcycles to Noster the year before only to
find that the check for final payment of the purchase price
(which McLean had verified through Noster’s bank as sup-
ported by sufficient funds) turned out later to be returned for
insufficient funds.
It was then McLean who later spotted the GMC Sierra
truck with a Lance Camper and reported it to the police. With
Beene away on vacation, other officers responded to
McLean’s call and were told that the information he had
obtained from Beene was that the truck and camper were
stolen. That was confirmed by the officers by tracking down
the stolen-truck report, and they then obtained orders to
impound the truck and undertook the search at issue in this
case.
That is the backdrop against which the decision in Herring
may appropriately be viewed. Speaking for the five-Justice
majority there, Chief Justice Roberts rejected a bright-line
rule in which one law enforcement officer’s good faith reli-
ance on another officer’s unconstitutional misdeed would
automatically be constitutionally tainted as well. Instead the
majority opinion summarized its holding in these terms (127
S. Ct. 695, 702 (2009)):
To trigger the exclusionary rule, police conduct must
be sufficiently deliberate that exclusion can mean-
ingfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice sys-
tem. As laid out in our cases, the exclusionary rule
serves to deter deliberate, reckless, or grossly negli-
gent conduct, or in some circumstances recurring or
systemic negligence.
Just a bit later the majority opinion went on to say (id. at 703):
UNITED STATES v. NOSTER 8883
If the police have been shown . . . to have knowingly
made false entries to lay the groundwork for future
false arrests, exclusion would certainly be justified
under our cases should such misconduct cause a
Fourth Amendment violation.
Those holdings aptly describe Detective Beene’s miscon-
duct. Surely his actions were both deliberate and culpable and
caused a knowingly false entry, so that I submit adherence to
the Herring majority rule plainly calls for reversal here. And
as for Herring’s four-Justice minority, it urged the retention
of a bright-line standard under which reliance by non-culpable
law enforcement personnel on errors (even negligent errors)
made by other law enforcement people would trigger the
operation of the exclusionary rule. That stance of course also
calls for reversal here, this time on an a fortiori basis.
In sum, I believe that the Herring opinions, fairly read, call
unanimously for reversal. By contrast, the majority in this
case—fully aware (as I am too) that Noster is a very bad man
indeed—has opted to ignore Beene’s obvious belief that when
it comes to dealing with someone he views as among the
dregs of society, the ends somehow justify illegal means. We
are entitled to expect—and to get—better than that from the
personnel to whom we entrust the powers of law enforcement,
not of law breaking. Accordingly I respectfully dissent.