F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

N A H A C H M A

N U E L G A R

A Y , AKA Nahach Guerrero, AKA Polar B ear,

Defendant-Appellant. N o. 18-50054

D.C. No. 2:17-cr-00188- RGK-1

OPI NI ON

A ppeal from the United States District Court for the Central District of California R. Gary Klausner, District J udg e, Presiding

Arg ued and Submitted Aug ust 13, 2019 Pasadena, California

F iled September 17, 2019

B efore: Mary

M. Schroeder and Susan P. Graber, Circuit J udg es, and Michael H. W atson, * District J udg e.

Opinion by

J udg e Schroeder

* T h e Ho n o rab le Mich ael H. W atso n , Un i ted States District J u d g e f or th e So u t h ern District o f

Oh i o , sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. G A R A Y 2

SUMMARY * *

Crim inal 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 a s

a result of the search o f his cell p hone, seiz ed from his rental car after a hig

h-speed chase.

Under Byrd v. United States
, 1 38 S. Ct. 1518 (2018), which cl arified that F ourth Amendment standing is not jurisdictional, t he panel did not need to reach the
g overnment’s threshold contention that the defendant lacked standing to challeng e the search of t h e phone before analy z ing the merits of the defendant’s Fo urth A mendment claims.

The panel held th a t t h e district court did not err in

conc l u d ing that the defendant’s cell phone was lawfully seiz ed as part o f a valid inventory search, where there was no

reason to conclude that the search was use d t o ru mmag e 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 cau s e s u p ported the two warrants issued to

sear c h the defendant’s cell phone. The panel ex plained that

a ffiants seeking a warrant may state conclusions based o n training an d ex perience without having to detail that

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. G A R A Y 3

ex p erience. The p a nel concluded that there was a sufficient factual b asi s f

o r the issuing mag istrate judg es to conclude, independently of the affiants’ beliefs, that evidence mig ht be found on the defendant’s cell phone.

COUNSEL

Michael Tanaka (arg

u ed), L os Ang eles, California, for Defendant-Appellant.

J ulia L

. Reese (arg

ued), Assistant United States Attorney ; L

. Ashley Aull, Chief, C riminal Division; Nicola T. Hanna, United States Attorney ; United States Attorney ’s O ffice, L os Ang eles, California; for Plaintiff-Appellee.

OP INION

SCHROEDER, Circuit J udg e:

Nahach Garay appeals h is c o n v i c tion under 18 U .S.C. § 9 22(g )(1) as a felon in possession o f a f i rearm. He challeng es th e denial of his motion to suppress evidence found as a result of the search of his cell phone, seiz ed from his rental car after a hig h-speed chase. The phone contained photog raphs that tied him to the firearm that was recovered from the car. The d istrict court ruled that t h e p h one was lawfully seiz ed in an inventory

search of the car and that the
warrants authoriz ing the search of the phone’s contents were supported by probable cause.

The g o vernment’s threshold contention on appeal is that Garay lacked standing to challeng e the s e a rc h of the phoneU N I T E D S T A T E S V

. G A R A Y 4

because he h a d abandoned any r e a sonable ex pectation o f privacy in its contents when he ran from the car. W e need not address this question. Under the Supreme Court ’ s recent decision in Byrd v

. United States
, 138 S. Ct. 1518
, 1 530 (2018), such a

n inquiry is not jurisdictional, and, so, we need
not consider it before we a naly z e the merits of Garay ’s F ourth Amendment claim. B ecause we c onclude that the searches o f both the car and the phone were lawful, we affirm.

BACK G ROUND

W h en San B ernardino County deputy sheriffs attempted, in March of 2017, to stop Garay f or a traffic violation, Garay
, with a passe n ge r in the car, led them on a hig h-speed chase. The c hase culminated in Garay ’s c rashing the car into a ditch and attempting to f

lee on fo o t

. A search of his person revealed thousands of dollars in cash and quantities of f our different illeg a l drug s. He was placed under arrest.

W ith the car totaled in the ditch, the officers had to arrang e to have the car towed. I n preparation, they searched the c ontents o f the c ar, finding two loaded rifles, ammunition, and t wo c ell phones, one of which was claimed by the
passeng er. 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. The y booked the rifles, ammunition, and cell phones as evidence.

To search the contents of the cell pho n e s , s t ate lawenforcement officers obtained a warrant on the streng th of an officer’s affidavit describing the circumstances leading up to the discovery of the p hone s. These circumstances included the drug s and cash found on Garay ’s person and the a ffiant’s knowledg e, based on training and ex perience, that individualsU N I T E D S T A T E S V

. G A R A Y 5

who possess firearms take pictures of them and communicate via tex t messag es to further their criminal activity

. W hen the

case wa s r e fe rred for federal p rosecution, a second, federal
warrant was issued on the basis o f similar information as w ell

as on the “collective ex periences” o f law enforcement ag ents that felon s p rohibited from p ossessing g uns use mobile phones to coordinate buy ing and selling g uns.

Garay c ontends that the warrantless seiz ure of the phone itself w as unreasonable and that the affidavits supporting the search of the contents of Garay ’ s phone were inadequate.

D ISCUSSION

I. The Issue of

Standing

The g o v ernment arg u es that Garay abandoned any reasonable ex pectation of privacy h e m a y have had in the
contents of his phone when h e left it in a totaled car and tried
to flee from the arresting officers. T h is, the g overnment arg ues, is a threshold issue that pre v e n t s Garay from h aving standing to challeng e the search or seiz ure of the phone.

The Supreme Court recently clarified in Byrd that F ourth Amendment standing
, unlike Article I I I standing in the civil
conte x t , is “not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits o f

a F ourth Amendment claim.” 138 S. Ct. at 1530. W e conclude that the search and s e i z u re of Garay ’s c ell phone

were both reasonable under the F ourth A m e ndment. According ly
, we need not decide whether Garay a b a n d o n ed all reasonable ex

pectation of privacy

in the cell phone.U N I T E D S T A T E S V

. G A R A Y 6

II. The Inventory Sea r c h a nd the Reasonableness of the Seizure of

the P hone

B e fore towing or impounding a ve h i c l e , officers may

s eiz e and inventory the contents of that vehicle in order t o avoid liability for missing item s

. S ee South Dakota v

. Opperman
, 428 U.S. 364, 36 9 ( 1 9 76). I f done according to standardiz ed criteria and not in “bad f aith or for the sole
purpose o f investig ation,” p olice inventory procedures satisfy the F ourth Amendment. Colorado v. Bertine
, 479 U.S. 367, 372 (1987).

T he g overnment correctly contends that the seiz ure of Garay ’s cell phone was j u s t i f i e d a s part of a

n inventory search in preparation for the c ar’s towing

. Garay does not dispute that the decision to tow the c ar w as a reasonable a nd
g ood-faith ex ercise of the officers’ care

- taking function; Garay had just been arrested a nd the car was totaled and ly ing in a ditch. See also Cal. V eh. Code § 2 2651(h)(1) (authoriz ing officers to tow car after driver is arrested). I t is well established that, once a vehicl e has been impounded o r towed, police are p ermitted to i n v e n tory the car’s contents. Opperman
, 428 U.S. at 369. Garay contends
, however, that
t h e officers used their authority to inventory the c ar ’s
contents here to unlawfully rummag e for evidence. I nventory searches a

re consistent with the F ourth Amend m e n t only if they are not used as an ex cuse to rummag e for evidence. See Florida v. W

ells
, 495 U.S. 1, 4 (1990) (“an inventory search
must not b e a ruse for a g eneral r ummag ing in order to discover incriminating evidence”).

To support his arg umen t that this search w as pretex tual, Garay cites the absence o f a n y i nventory sheet listing the property found inside the car, a list required under theU N I T E D S T A T E S V

. G A R A Y 7

sheriff’s department’s inventory policy

. As noted above, the officers listed only s o m e p roperty in the Vehicle Report, thoug h they b ooked additional property as evide n ce

. The district court d ismissed thi s a rg ument, pointing out that a department’s p olicies do not define constitutional rig hts. Such p olicies d o, however, assist courts to determine whether

an inventory search is leg itimate, as o pposed t o p r e tex tual. See United States v. W

anles s , 8 8 2 F .2d 1459, 1463–64 (9th Cir. 1989) (invalidating an inventory search that deviated from required procedures).

I n this case, we s e e n o r eason to hold that the officers
were rummag ing for evidence. T h e contents of the wrecked

car h ad to b e removed an d s a f e guarded before the car was towed from the site. That is the e s sence of an inventory search. B ecause the site was in effect a c rime scene, the items in the car were sensibly tr e at e d as evidence. The searching officer complied with the department’s inventory

search policy in material respects. F or instance, he obtained the tow truck driver’s sig nature and noted the date and time of the d river’s arrival; he obtained a f i l e n umber for the inventory ; he checked a box on the r e l e v a n t inventory form indicating that items of potential value were in the c ar before identify ing and booking the items recovered from the car a s “evidence/property .”

That the o fficer did not complete the inventor y l ist that ordinarily would be completed a s part of a department inventory search is not, on its own, a material deviation from policy

. Other circuits h ave e x p r e ssly recog n iz e d that the failure to complete an inventory form does not invalidate an inventory se arch. See United States v. Loaiza-Marin
, 8 3 2 F .2d 867, 869 (5th Cir. 1987) ( per curiam) (“failure to compile the written inventory does not render the invent o ryU N I T E D S T A T E S V

. G A R A Y 8

search invalid”); United States v. Trullo
, 790 F .2d 205, 206 (1st Cir. 1986) (“W e will n ot h old that the officer’s failure, technically
, to follow the inventory form proce d u res for valuables meant it was n o t a n inventory search.”); United S t ates v. O’Bryant
, 775 F

. 2 d 1528, 1 534 (11th Cir. 19 8 5 ) (“W e also reject O’B r

y a nt ’ s contention that the inventory search ex ception to t h e g e neral prohibition ag ainst warrantless sear c h es was violated because [ the officer] did
not prepare a c o m p lete list of the briefcase' s contents.”); United State s v. Richardson
, 2000 W L 1273425, at *2 (4th Cir. Sept. 5, 2 000) (per curiam) (unpublished) (“[ T] h e failure
to complete an invento r y list d oes n ot render suspect either the motive for conducting the search or the r e a s o n ableness thereof.”).

F urther, we as well as several othe r circuits have upheld inventory searches despite other comparab l e administrative

errors. S e e, e.g. , U

nited States v. P en n , 233 F .3d 1111, 1 115–17 ( 9th Cir. 2 000) (inventory search lawful even thoug h officer may have allowed pass e n g er to remove personal property from the car b e f or e the search, which was “contrary ” to “police a

n d city policy ”); see also United States

v. W illiams
, 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. 2 011) (stolen firearm omitted from inventory list); Un i t e d States v. Cartwright
, 630 F

. 3d 6 10, 616 (7th Cir. 2010) (incomplete inventory list); United Sta t es v. Lopez
, 547 F .3d 364, 371 ( 2d Cir. 2 008) (officer failed to “itemiz e each object”).

The underlying p rinciple w a s perhaps best stated in United States v. R owland
, where the E ig h th Circuit ex p lained that administrative errors should not, on their own, invalidate inventory se ar c h es: “There must be something else;U N I T E D S T A T E S V

. G A R A Y 9

something to sug g est the police raised ‘ the inventory -search banner in an after-the-fact attempt to justi f y ’ a simple investig atory search for incrim i n a ting evidence.” 341 F .3d 774, 780 ( 8th Cir. 2003) (quoting United States v. Marshall
, 986 F .2d 1171, 1175 (8th Cir. 1 9 93)). The point is also illustrated by our recent decision in U nited States v. Johnson
, in w hich we held that the search was not an inventory search “because the officers themselves explicitly a dmitted that they

se i z e d items from the car in an e ffort to search for evidence of criminal activity .” 889 F .3d 1120, 1127–28 (9th Cir. 2 018) (per curiam).

Here, by contrast, we find no reason to conclude that the inventory search was used to rumm ag e f or evidence. Given the circumstances leading up to the search, the officers no doubt ex p ected to find e vidence of criminal activity inside the vehicle. B u t that ex pectation w o u ld not invalidate an otherwise r e asonable inventory search. See United S tates v

. Bowhay
, 992 F .2d 2 29, 231 (9th Cir. 199 3 ) ( ex plaining that “dual motives” in inventory

- search contex t are permissible). The district court did not err in c oncluding t h a t G a r ay ’s c ell phone w as lawfully seiz ed as part o f a v alid inventory search.

III. Adequacy of Warrant t o Search Cell P hone’s Contents

Two mag istrate judg es, one state and one federal, issued
warrants to sea r c h t h e cell phone’s contents. Garay arg ues that the affidavits contained in the warrant applications were not supported by p robable cause. The question before us, therefore, is whether the mag is t r a t e judg es had a substantial basis to conclude that the warrant applications e stablished probable cause. S

e e United States v

. Celestine
, 3 24 F .3d 1 0 9 5
, 1100 (9th Cir. 2003). An affidavit in support o f aU N I T E D S T A T E S V

. G A R A Y 10

search warrant shows probable cause if, under the totality of the circumstances, it reveals “a fai r p r o bability that contraband or evidence of a crime will be f o und in a particular p lace.” Illinois v. Gates
, 462 U.S. 213, 238 (1983).

The district court found the support f or each warrant to be

more than adequate. T h e affidavit in support of th e s t ate warrant described all the relevant circumstances. These included the hig h-speed chas e l e ading up to the crash a nd Garay ’s at t e m p t to flee, followed by G aray ’s arrest and the discovery of drug s and cash on h i s person, as well as the discovery of loaded g uns, ammunition, and cell phones inside the car. The a f

f i d a v i t a lso recited the affiant’s training a nd

ex p erience, reflecting that people w ho possess firearms “like
to take pictures of [ those items] ” w ith their cell phones, a nd “will a lso communicate via tex t” reg arding criminal a ctivity

.

W h en the case was later referred for federal prosecution, the affidavit for the federal warrant covered the same g r ound

as the state affidavit, but w as even more speci f i c i n s tating that the affiant, based on her training and ex perience, as w ell

as the “collective ex periences” o f other law enf o rcement ag ents, knew that felons prohibited f r om owning g uns “often

use dig ital devices, includ i ng mobile phones, to c oordinate buy ing or selling those g u ns .

. . to promote their possession of g uns to others” and to contact supplier s f o r future purchases or referrals.

Garay nevertheless c ontends that b o th w a rrants lacked probable cause. He asserts that the a f fiants’ belief on the basis of their “trainin g a nd ex p erience,” unadorned b y sufficient supporting details, cannot prop e r ly be considered in establishing probable cause. He a rg ues that, before the affiants’ beliefs may be taken into consideration, the affiantsU N I T E D S T A T E S V

. G A R A Y 11

must detail the nature of their ex p er t ise or ex perience a nd how that ex perience bears on the facts prompting the search.

O u r standards, however, are not so string e nt. W e h a v e long h eld that a f

fiants seeking a w arrant may s t a t e conclusions based on training and ex perience without h aving
to d etail that ex perience. See, e.g. , U n ited States v

. Hendershot
, 6 14 F.2d 6 48, 6 54 ( 9th Cir. 1980) (finding that affiant’s conclusion “based on [ his] ex perience from prior bank robbery investig ations” w a s proper; emphasiz ing that “[ i] t is not necessary to detail that e x perience t o d e termine that the c onclusion is not capricious” (intern al quotation marks omitted)). W e have also held that mag i s t r ate judg e s may “rely on the conclusions of ex perienced law enforcement officer s reg arding where evidence o f a crime is likely to be found.” United States v. Fannin
, 817 F .2d 1 3 7 9
, 1382 (9th Cir. 1987) (citing United S tates v. Crozier
, 777 F .2d 1376, 1380 (9th Cir. 1985)).

F urther, there w as a sufficient factual basis for both
mag istrate judg es to conclude, independently o f the a ffiants’ beliefs, that evidence mig ht be found o n Garay ’s cell phone. Garay r e lies on authorities in which the warrant applications h a d c ontained no f

actual basis from which to connect t h e place to b e searched with the e vi d e nce soug ht. See, e.g. , United States v. Underwood
, 7 25 F .3d 1076, 10 8 6 (9th Cir. 2013) (“[ T] he affidavit provides no factual b a sis for the conclusion that d r ug trafficking evidence would be found at Underwood’s home.”). B u t h ere, the affidavits ex plained all of the circumstances leading up to the s e a r ch o f the c ar that had been wrecked, a

nd ex plained that Garay was then arrested for having drug s and cash on his person. These facts, coupled w ith the affiants’ ex perience a n d beliefs, provide a reasonable basis to infe r that evidence ty ing G a ray to theU N I T E D S T A T E S V

. G A R A Y 12

c r iminal activity of which he was suspected mig ht be foun d

on the cell phone. Mag istrate judg es may , as they likely did here, draw their o wn reasonable inferences about where evidence mig ht be k ept based on the nature of the suspected offense a nd the n ature of t h e e v idence soug ht. Fannin
, 817 F .2d at 1382; see also United States v. Lucarz
, 430 F .2d 1051, 1055 (9th Cir. 1970).

W e o we “g reat deference” to mag istrate judg es’ probablecause finding s. 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 g ave rise to at l e as t a f

air probability that evidence o f a crime would be found on Garay ’s cell phone.

AF F IRMED.