FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NAHACH MANUEL GARAY, AKA

Nahach Guerrero, AKA Polar Bear,

Defendant-Appellant.

No. 18-50054

D.C. No.

2:17-cr-00188-

RGK-1

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 lawenforcement 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 ofsimilar 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 inventorysearch 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’ probablecause 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.