United States v. Nathan Nwobi , 543 F. App'x 706 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-50413
Plaintiff - Appellee, D.C. No. 2:10-cr-00952-GHK-7
v.
MEMORANDUM*
NATHAN NWOBI,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted October 9, 2013
Pasadena, California
Before: PAEZ and HURWITZ, Circuit Judges, and ERICKSON, Chief District
Judge.**
Defendant Nathan Nwobi appeals his conviction for one count of conspiracy
to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, two
counts of possession with intent to distribute marijuana in violation of 21 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for the District of North Dakota, sitting by designation.
841(a)(1), and two counts of maintaining premises for the purpose of
manufacturing, distributing, and using marijuana in violation of 21 U.S.C. §
856(a)(1). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
1. The district court did not err in denying Nwobi’s motion to suppress
evidence obtained through a warrantless search of a commercial waste container.
Officers searched a waste bin located in a shared parking lot of a business park.
The waste receptacle was visible from the street, the gate surrounding the business
park was open, and the commercial waste bin was not locked. Because Nwobi had
sufficiently exposed the contents of the waste container to the public, he lacked an
objectively reasonable expectation of privacy in his trash. California v.
Greenwood, 486 U.S. 35, 40 (1988).
2. The district court did not err in denying Nwobi’s motion to suppress
evidence obtained pursuant to a search warrant. The warrant authorized officers to
search four separate locations. The affidavit in support of the warrant application
was well-supported by information obtained through an authorized wiretap of a co-
defendant’s cell phone, surveillance spanning several weeks, and a search of a
trash bag Nwobi was observed throwing away, which contained marijuana
clippings and stalks. On the basis of this evidence, the magistrate judge reasonably
determined that probable cause existed to search all four locations. See United
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States v. Crews, 502 F.3d 1130, 1136-37 (9th Cir. 2007); United States v. Pitts, 6
F.3d 1366, 1369 (9th Cir. 1993).
The district court also did not err in denying the alternative request for an
evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). A
defendant is not entitled to a Franks hearing if, once the false statements are
excised and the omitted information is inserted, probable cause still exists. Id. at
171-72; United States v. Perdomo, 800 F.2d 916, 921 (9th Cir. 2000). Here, we
find no error in the district court’s determination that the false statements and
omissions Nwobi identified were not essential to a probable cause finding.
3. Before trial, Nwobi timely filed a motion to suppress the cell phones and
computers seized from his residence and any evidence obtained from a search of
the cell phones and computers. The district court denied the motion as moot with
regard to the cell phones based on a colloquy with the prosecutor at a hearing on
the motion, in which the prosecutor suggested that no useful evidence was
recovered from the cell phones. At trial, the government offered as evidence a cell
phone identification number, which had been obtained by removing the battery of
the cell phone. After this evidence was introduced, Nwobi never renewed his
motion to suppress, and the government argues that he waived any argument that
the introduction of cell phone evidence violated his Fourth Amendment rights.
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Even assuming that Nwobi did not waive this argument, we conclude that
the warrant properly authorized the seizure of the cell phones. The warrant
specifically contemplated the search and seizure of information likely to be found
on cell phones. The affidavit offered in support of the warrant application
described telephone conversations, intercepted through an authorized wiretap, that
provided probable cause to seize the cell phones. Because the government had
lawful possession of the cell phones, it was permitted to conduct an inventory
search. Colorado v. Bertine, 479 U.S. 367, 371 (1987); United States v. Mancero-
Londono, 912 F.2d 373, 376 (9th Cir. 1990). Record evidence supports the
conclusion that the cell phone identification number was obtained as part of a
lawful inventory search performed by the Drug Enforcement Agency before
returning the cell phone to Nwobi.
4. Finally, we turn to Nwobi’s prosecutorial misconduct claim. Because
Nwobi never raised his allegation of prosecutorial misconduct at trial, we review
for plain error. “To be plain, the error must be clear or obvious, and an error
cannot be plain where there is no controlling authority on point . . . .” United
States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012). Nwobi cannot meet this
burden. Although the prosecutor’s representation may have been imprecise, it did
not constitute misconduct.
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AFFIRMED.
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