NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ANTONIO MOGROS,

Defendant

- Appellant. No. 17

- 10287
D.C. No. 3:16

- cr - 00051

- MMD

- WGC

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding Submitted December 20, 2018 ** San Francisco, California Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.
Antonio Mogros pleaded guilty to possession with intent to distribute methamphetamine and possession of a firearm in furtherance of a drug crime . He received a 15

- year sentence. His conditi onal plea preserved the right to appeal the district court’s ruling on Mogr os’s motion to suppress and request for a hearing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

DEC 26 2018 MOLLY C. DWYER, CLER K U.S. COURT OF A PPEALS2

under Franks v. Delaware , 438 U.S. 154 (1978)

. On appeal, Mogros argues that the searches and seizures giving rise to his
arrest violate d the Fourth Amendment , and the evidence obtained as a result should be suppressed. The district court denied Mogros’ s motion to suppress and Mogros’s request for a Franks hearing. W e have jurisdiction under 28 U.S.C. §
1291 , and we affirm.
1. The Court reviews the denial of a motion to suppress and the denial of

a Franks hearing de novo. United States v. Crawford , 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc) ; United States v. Kleinman , 880 F.3d 1020, 1038 (9th Cir. 2017) . The district court’s underlying findings of fact are reviewed for clear error.
United States v. Gorman , 859 F.3d 706, 714 (9th Cir. 2017).
2. At the time officers stopped the vehicle Mogros was travelling in, probable cause existed for his arrest. See United States v. Gonzales , 749 F.2d 1329, 1337 (9th Cir. 1984). Whether officers had probable caus e for a warrantless arrest
is reviewed de novo. United States v. Brobst , 558 F.3d 982, 997 (9th Cir. 2009). Here, Wilkins had identified Mogros to detectives; detectives had listened in as Mogros agreed to sell methamphetamine and heroin to Wilkins; detect ives
observed conduct at the motel consistent with drug transactions; and Mogros left
his m otel room and traveled in the general direction of the arranged drug sale. Under the “totality of the facts and circumstances” present here, officers3

reasonably beli eved there was a “fair probability” Mogros had committed a crime

. United States v. Struckman , 603 F.3d 731, 739 (9th Cir. 2010)

. Therefore, probable

cause existed for Mogros’ s warrantless arrest.
3. Because officers had probable cause to arrest Mogros, o fficers were also entitled to search Mogros incident to that arrest. Id

. The officers’ search of Mogros was consistent with a typical search incident to arrest. See Terry v. Ohio , 392 U.S. 1, 16, 17 n. 13 (1968). When that search revealed what officers reas onably
believed to be illegal drugs hidden within Mogros ’s underwear , officers did not violate the Fourth Amendment by removing the drugs in a reasonable manner. See
United States v. Mattarolo , 209 F.3d 1153, 1158 (9th Cir. 2000).
4. The district court also correctly determined that the warrant authorizing the search of Mogros’ s motel room was supported by probable cause

. See Illinois v. Gates , 462 U.S. 213, 238

- 39 (1983). The district court’s determination that probable cause existed for a search warrant is reviewed de novo.
United States v. Reeves , 210 F.3d 1041, 1044 (9th Cir. 2000). Even if evidence
from the canine search and the officers’ entry in to the motel room is excised from
the warrant affidavit , the affidavit still provided the Justice of the P eace with an adequate factual foundation to conclude that probable cause existed to search the motel room. Detectives knew Mogros was staying in the mote l room; detectives had observed Mogros engaging in activity consistent with drug s ales; detectives4

heard Mogros tell Wilkins that Mogros had “re

- upped” his supply of drugs; and Mogros was in possession of drugs when officers arrested him . These facts, taken together, establish a “reasonable probability” that evidence of a crime would be found in Mogros’ s motel room. See United States v. Nance , 962 F.2d 860, 864 (9th Cir. 1992).
5. Finally, the district court correctly concluded Mogros was not entitled

to a Franks hearing. To obtain a Franks hearing, the defendant must show that the

warr ant affidavit contained (1) intentionally or recklessly false statements or misleading omissions, and (2) the affidavit cannot support a finding of probable cause without the false information ( i.e. , the statements were material). Kleinman , 880 F.3d at 103 8. Even assuming Mogros established the inclusion of false statements or omissions, he cannot establish their materiality. As the district court correctly determined, n one of the alleged inconsistencies are material to the underlying facts used to establish probable cause.
AFFIRMED

.