United States v. Garay, 18-50054

• Decision Date: 17 September 2019
• Docket Number: No. 18-50054,18-50054
• Citation: 938 F.3d 1108
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nahach Manuel GARAY, aka Nahach Guerrero, aka Polar Bear, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

938 F.3d 1108

UNITED STATES of America, Plaintiff-Appellee,

v.Nahach Manuel GARAY, aka Nahach Guerrero, aka Polar Bear, Defendant-Appellant.

No. 18-50054

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 13, 2019 Pasadena, California

Filed September 17, 2019

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.

Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson,^* District Judge.

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 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 , ––– U.S. ––––, 138 S. Ct. 1518, 1530, 200 L.Ed.2d 805 (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 law-enforcement 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 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 of similar 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.

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, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (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, 107 S.Ct. 738, 93 L.Ed.2d 739 (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, 96 S.Ct. 3092. 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, 110 S.Ct. 1632, 109 L.Ed.2d 1 (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 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 inventory-search 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 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...