United States v. Artak Moskovyan , 618 F. App'x 331 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50247
Plaintiff - Appellee, D.C. No. 2:13-cr-00641-JFW-1
v.
MEMORANDUM*
ARTAK MOSKOVYAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted September 3, 2015
Pasadena, California
Before: O’SCANNLAIN, FISHER, and BYBEE, Circuit Judges.
Artak Moskovyan, having pled guilty to conspiracy to commit access device
fraud (18 U.S.C. § 1029(b)(2)) and aggravated identity theft (18 U.S.C. § 1028A),
challenges on appeal the district court’s denial of his motions to suppress evidence.
Moskovyan contends that the warrantless inventory search of his car and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
subsequent search of his residence by police were unlawful. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
I
Police acting in a community caretaking capacity may impound an arrestee’s
vehicle when the vehicle, if left unattended, risks being vandalized or stolen.
Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005) (citing United
States v. Jensen, 425 F.3d 698, 706 (9th Cir.2005)). Here, Moskovyan’s luxury
sedan, parked in an unfenced lot near a busy intersection, risked theft and
vandalism, see Ramirez v. City of Buena Park, 560 F.3d 1012, 1025 (9th Cir.
2009); Hallstrom v. City of Garden City, 991 F.2d 1473, 1477 n.4 (9th Cir. 1993),
and faced the additional risk of being towed because it was parked illegally, see
United States v. Cervantes, 703 F.3d 1135, 1141–42 (9th Cir. 2012) (invalidating
impoundment, in part, because vehicle was parked legally). Because the owner was
not present, the officers were not required to consider less intrusive alternatives to
impoundment. See Miranda, 429 F.3d at 865 & n.6. Accordingly, the
impoundment was justified.
The subsequent inventory search was also valid as the arresting officer
followed standardized local procedure, see Cervantes, 703 F.3d at 1141 (citing
South Dakota v. Opperman, 428 U.S. 364, 375–76 (1976)), and Moskovyan failed
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to demonstrate that the officer’s “sole purpose” was investigatory or that he acted
in bad faith, see Colorado v. Bertine, 479 U.S. 367, 372 (1987); see also United
States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993) (holding inventory search was
valid despite officer’s admission that he had an additional investigatory motive).
II
In evaluating the affidavit supporting the search warrant for Moskovyan’s
home, the district court did not err in limiting its hearing under Franks v.
Delaware, 438 U.S. 154 (1978), to one issue. As to the other issues, Moskovyan
failed to “make a substantial preliminary showing that . . . the affidavit contain[ed]
intentionally or recklessly false statements.” United States v. Valencia, 24 F.3d
1106, 1109 (9th Cir. 1994) (citing United States v. DeLeon, 979 F.2d 761, 763 (9th
Cir. 1992)).
III
The district court did not err in finding that police had probable cause to
search Moskovyan’s residence. The typographical error in the affidavit erroneously
identifying the date of arrest as January 6, 2010, instead of January 6, 2011, did not
render the information “too stale” to establish probable cause. Any reasonable
judge reading the affidavit would have understood that the arrest and discovery of
contraband, the basis for the requested search that evening, occurred only hours
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earlier—not a full year prior. Furthermore, the substance of the affidavit
demonstrated a “reasonable nexus,” United States v. Chavez-Miranda, 306 F.3d
973, 978 (9th Cir. 2002) (internal quotation marks omitted), between the evidence
discovered during Moskovyan’s arrest and the search of his residence. The
hundreds of fraudulent access cards found in Moskovyan’s car created a “‘fair
probability,’” sufficient to justify a warrant, that further evidence related to access
device fraud would be found in his home. See United States v. Hill, 459 F.3d 966,
970 (9th Cir. 2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). There
was “good cause” for a nighttime search under California Penal Code § 1533
because the officers arrested Moskovyan at night, and others could have destroyed
evidence in Moskovyan’s home that evening.
IV
Finally, even if the warrant had been flawed, the evidence was admissible
under the good-faith exception to the exclusionary rule as it was not “so lacking in
indicia of probable cause that no reasonable officer could rely upon it in good
faith.” United States v. Crews, 502 F.3d 1130, 1136 (9th Cir. 2007) (citing United
States v. Leon, 468 U.S. 897, 923–26 (1984)).
AFFIRMED.
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