Opinion
2:19-cr-00179-KJM
01-26-2022
United States, Plaintiff, v. Alan Alfredo Garcia, Defendant.
ORDER
Defendant Alan Garcia moves to suppress evidence obtained in a phone and vehicle search following a traffic stop for expired registration tags. As explained in this order, the searches were reasonable and supported by probable cause. The motion is denied.
I. BACKGROUND
According to the affidavit filed with the criminal complaint in this case, two sheriff's deputies pulled Garcia over when they saw he was driving a car with an expired registration. Garrett Aff. ¶ 5, ECF No. 1; see also Kannalikham Rep., Opp'n Ex. 1, ECF No. 54-1. One deputy saw a box of ammunition in the back seat as he walked past the car. Garrett Aff. ¶ 5. The deputy told Garcia to put his hands on the steering wheel, then looked again in the back seat through the car's window. Id. ¶ 6. He noticed part of a gold and black handgun partially covered by a shirt. Id.
The deputies restrained Garcia in their patrol car. Id. They moved the shirt covering the handgun and found a large drum magazine that could hold 50 rounds. Id. ¶ 7. The gun was loaded with 30 rounds. Id. The deputy also saw drugs and an iPhone on the front seat and center console. Id. ¶ 8; Search Warrant & Aff. at 7, Opp'n Ex. 2, ECF No. 54-2. The phone's screen turned on when a deputy picked it up, showing a picture of Garcia and another person. Search Warrant & Aff. at 7.
The deputies then arrested Garcia, Kannalikham Rep. at 6, and the Sheriff's Department searched the iPhone that night after obtaining a warrant, Garrett Aff. ¶ 9. Police also obtained a warrant to search Garcia's home, which they did the next day, and found firearms, silencers, ammunition, magazines and tools for assembling rifles. Id. ¶ 11. The government then filed charges in this court. See Indictment, ECF No. 16. The indictment charges Garcia with two counts of violating 26 U.S.C. § 5861(d) for possessing silencers not registered to him. See generally id.
Garcia moves to suppress the evidence found in his car and home. See Mot., ECF No. 51. He argues the deputies did not have probable cause. See generally Id. The government disagrees. See generally Opp'n, ECF No. 54. In reply, Garcia offered new theories about why one of the warrants was issued without probable case, and he submitted new evidence, see Reply at 3-4 & Ex. A, ECF Nos. 55 & 55-1, so the court permitted a surreply, see generally Surreply, ECF No. 60. The motion was submitted without a hearing. Since then, the parties have stipulated to continuing the trial date, see Min. Order, ECF No. 70, and the Magistrate Judge has ordered Garcia's admission to a drug treatment facility; he was previously released pending trial. See Mins., ECF No. 73; Pre Violation Pet., ECF No. 71; Not. of Pretrial Release, ECF No. 10.
The court grants nunc pro tunc the government's request for leave to file a longer surreply.
II. DISCUSSION
When a defendant moves to suppress evidence under the Fourth Amendment's exclusionary rule, the first step is deciding whether a Fourth Amendment violation occurred. Davis v. United States, 564 U.S. 229, 236-37 (2011). Garcia contends three searches occurred: a warrantless search of his car, see Mot. at 1, a warrantless search of his iPhone, see Id. at 2, and a later search of the iPhone with a warrant, see Reply at 3-4. He argues all three searches were unconstitutional. The court begins with the warrantless search of the car.
Warrantless searches and seizures violate the Fourth Amendment unless they fall within one of a “few specifically established and well-delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (quoting Thompson v. Louisiana, 469 U.S. 17, 20 (1984) (per curiam)). One of these exceptions is the so-called “automobile exception, ” United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010), first recognized almost 100 years ago, see Carroll v. United States, 267 U.S. 132, 153 (1925). Under this exception, police may search a car if they have probable cause to believe it contains contraband or evidence of a crime. See California v. Acevedo, 500 U.S. 565, 569-71 (1991). Police have probable cause when “there is a fair probability that contraband or evidence of a crime will be found” under the circumstances. Illinois v. Gates, 462 U.S. 213, 238 (1983).
The search of Garcia's car was permissible under this exception. The deputy who searched Garcia's car first saw a box of ammunition, then a partially covered gold and black handgun through the car's windows. Garrett Aff. ¶ 5. Carrying a concealed handgun in a car is illegal in California. See Cal. Penal Code § 25400(a). California appellate courts have also held many times over the years that a firearm is “concealed” for purposes of the state's gun laws even if it is only partly or ineptly concealed. See People v. Bernardo, No. D071728, 2017 WL 4981386, at *1 (Cal.Ct.App. Nov. 2, 2017) (unpublished); People v. Aguilar, 245 Cal.App.4th 1010, 1017 (2016); People v. Tarkington, 273 Cal.App. 2d 466, 469 (1969). The same is true of partially concealed firearms in cars. See, e.g., People v. Hale, 43 Cal.App.3d 353, 355-56 (1974); People v. Koehn, 25 Cal.App.3d 799, 802 (1972); People v. Linden, 185 Cal.App. 2d 752, 757 (1960). In one of these cases, for example, officers saw the butt of a pistol “protruding from beneath two pillows, ” and the court agreed the officers had probable cause to suspect an illegally concealed firearm. Linden, 185 Cal.App. 2d at 757; see also, e.g., Hale, 43 Cal.App.3d at 355-56 (gun was concealed even though officers could see “the housing and barrel”). Officers who see a partially or incompletely covered firearm also have reason to suspect that other firearms or firearm parts are illegally concealed nearby, such as the large drum magazine in Garcia's car. See Hale, 43 Cal.App.3d at 355-56. Because the deputies saw a partially concealed handgun through the window of Garcia's car, there was a fair probability that a search would yield evidence of a concealed firearm and a violation of section 25400(a). The box of ammunition, which the officers also saw, reinforces this conclusion. The search of the car therefore was based on probable cause, and it did not violate Garcia's Fourth Amendment rights.
Although the California Rules of Court would prohibit the citation of this unpublished decision in a state court, those rules do not apply in federal courts, which may review and consider unpublished appellate decisions for their persuasive (but not precedential) value. See Nunez by Nunez v. City of San Diego, 114 F.3d 935, 943 n.4 (9th Cir. 1997); Inland Concrete Enterprises, Inc. v. Kraft, 318 F.R.D. 383, 405-06 (C.D. Cal. 2016).
The court has not considered the photograph submitted with Garcia's reply. See Reply at 1 & Ex. A, ECF No. 55-1. He cites no evidence to show the picture shows the same view the deputy avers he saw as he came alongside the car. Garrett Aff. ¶ 5.
Garcia contends the officers had no probable cause because the Second Amendment permitted him to carry a partially concealed firearm. See Reply at 2-3. He also points out that the Ninth Circuit has not decided whether California's definition of “concealed” is constitutional under the Second Amendment. See Id. But the Ninth Circuit has upheld California's concealed firearms statutes against a Second Amendment challenge. See generally Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc). Deciding whether an officer has probable cause is not an exercise in hypothesizing constitutional challenges and resolving them; it is a question of what facts the officer knew and the state's applicable criminal law. Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per curiam).
The second search Garcia cites does not obviously qualify as a “search” in Fourth Amendment terms. A deputy picked up Garcia's iPhone and its screen lit up, showing a picture of Garcia and another person. See Reply at 1-2; Search Warrant & Aff. at 7. If this was truly a Fourth Amendment “search, ” then there are two possibilities. First, if the deputy's discovery was inadvertent, it did not violate the Fourth Amendment. See, e.g., United States v. Giberson, 527 F.3d 882, 890 (9th Cir. 2008) (affirming order denying suppression of evidence discovered inadvertently during permissible search for different object); Roe v. Sherry, 91 F.3d 1270, 1272 (9th Cir. 1996) (holding officers could seize inadvertently discovered evidence in plain view). Second, if the officer acted intentionally, the search was permissible. Officers may seize, turn off, and secure cell phones to prevent the loss of evidence in a situation like this one, see Riley v. California, 573 U.S. 373, 388 (2014), and it is impossible to turn off and secure a phone without checking whether it is on.
Even if Garcia could prove there was a search of the iPhone and the search was unconstitutional, exclusion would serve no useful purpose. See Nix v. Williams, 467 U.S. 431, 444 (1984); see also United States v. Reed, 15 F.3d 928, 933 (9th Cir. 1994) (“The mere inclusion of tainted evidence in an affidavit does not, by itself, taint the warrant or the evidence seized pursuant to the warrant.” (citation omitted)). The only evidence the officer obtained was a picture of Garcia and another man. Given that the phone was in the car with Garcia, the ammunition and the handgun, excising references to the photo from the search warrant application would not have prevented the government from establishing probable cause. At most, the picture confirmed an already likely conclusion: the phone belonged to Garcia. It was in the car Garcia was driving, and he was alone. See Search Warrant & Aff at 7. Having obtained a warrant, officers would have searched the phone and found the picture.
Third and finally, Garcia argues officers obtained the search warrant for his phone without probable cause. See Reply at 3-4. The affidavit submitted with the warrant application described the evidence the deputies hoped to obtain and why they believed they would find it:
. It described the traffic stop and the deputies' discovery of a handgun, 50-round magazine, ammunition, drugs and the iPhone. See Search Warrant & Aff. at 7.
. It summarized an inventory search of the car after deputies arrested Garcia and towed his car. Id. This inventory search confirmed marijuana and cocaine were in the car. Id.
. A sheriff s deputy explained that in his experience, many people who illegally possess drugs and firearms take and post incriminating pictures and send incriminating text messages with smartphones. Id. at 5.
. The deputy also explained that he expected the iPhone would include information confirming it belonged to Garcia, such as contacts, messages to friends or location history. See Id. The application thus requested a warrant to search the phone for communications, location data, pictures, video, audio, internet search history and ownership data. See Id. at 3.
Here, the state court magistrate was within the bounds of the Fourth Amendment in finding the necessary “fair probability” that pictures, social media posts, text messages, and location data likely located in the phone could be evidence of gun and drug-related crimes by Garcia. Gates, 462 U.S. at 238. This court is in no position to “flyspeck the affidavit through de novo review, ” but must rather pay “‘great deference'” to the magistrate's conclusions. United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006) (en banc) (quoting Gates, 462 U.S. at 236).
Garcia also argues briefly in reply that the warrant was overbroad, citing the Supreme Court's decision in Riley v. California See Reply at 4 (citing 573 U.S. at 403). In Riley, the Court weighed the reasonableness of a warrantless search of a cell phone incident to an arrest. See Id. at 385, 395 n.1. Here, by contrast, Garcia is challenging a search conducted long after his arrest with a warrant. In Riley, the Supreme Court did not determine how a district court should decide a warrant is overbroad. The Ninth Circuit has addressed this question. See, e.g., United States v. Alvarez, No. 20-00086, 2020 WL 4701179, at *6 (N.D. Cal. Aug. 13, 2020) (citing United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986)). In answering the question, this court must consider several factors. See Id. Garcia does not analyze them. The court declines to undertake that exercise on its own. Nor will it consider undeveloped arguments asserted in passing. See Lexington Ins. Co. v. Silva Trucking Inc., No. 14-0015, 2014 WL 1839076, at *3 (E.D. Cal. May 7, 2014).
III. CONCLUSION
The motion to suppress is denied. This order resolves ECF No. 51
IT IS SO ORDERED. 7