NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10260
Plaintiff-Appellee, D.C. No. 3:20-cr-00086-WHO-1 v.
ALEJANDRO ALVAREZ, AKA Alejandro MEMORANDUM* Alvarez Castro, AKA Alejandro Castro- Lopez, AKA Chewy,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding
Argued and Submitted April 5, 2024 San Francisco, California
Before: M. SMITH, HURWITZ, and JOHNSTONE, Circuit Judges.
Alejandro Alvarez, also known as “Chewy,” was convicted after a jury trial
of possession with intent to distribute more than 500 grams of methamphetamine
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). Alvarez appeals the district
court’s denial of his pretrial motion to suppress evidence obtained from his cell-
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. phone provider, his residence, his person, and two cell phones found in his
possession at the time of his arrest. Alvarez also appeals the district court’s denial
of a hearing under Franks v. Delaware, 438 U.S. 154 (1978). We review de novo
the district court’s ruling on a motion to suppress and its denial of a Franks
hearing. United States v. Norris, 942 F.3d 902, 907 (9th Cir. 2019). Exercising our
jurisdiction under 28 U.S.C. § 1291, we affirm. Because the parties are familiar
with the facts, we do not recount them here, except as necessary to provide context
to our ruling.
1. The district court did not err in concluding that probable cause supported
the first two warrants issued in this case, each of which authorized the collection of
cell-location information from Chewy’s suspected mobile device (the “Ping
Warrants”). See United States v. Elmore, 917 F.3d 1068, 1074 (9th Cir. 2019)
(“Probable cause exists where the totality of the circumstances indicates a ‘fair
probability that . . . evidence of a crime will be found in a particular place.’”
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))). The affidavits supporting
the Ping Warrants contained reports by a confidential informant who provided
Chewy’s known phone number and stated that Chewy could provide
methamphetamine and heroin. Although the affidavits did not contain information
about the confidential informant’s credibility, the affiant officer, Officer Tursi,
explained that the confidential informant’s reports were corroborated through
2 supervised controlled buys. As the district court found, these facts provided a
“substantial basis” for the issuing magistrate to conclude that the evidence sought
would lead to evidence of wrongdoing. See United States v. Bishop, 264 F.3d 919,
925–26 (9th Cir. 2001); see also United States v. Artis, 919 F.3d 1123, 1134–35
(9th Cir. 2019) (upholding probable cause determination where officers
corroborated unidentified informant’s tip).
2. The district court did not err in concluding that probable cause supported
the third warrant issued in this case, which authorized a search of Alvarez’s person
and Alzarez’s suspected residence (the “Personal Warrant”). See Elmore, 917 F.3d
at 1074. Officer Tursi’s supporting affidavit recounted: (1) the prior controlled
buys; (2) the officers’ observation that a man matching Alvarez’s description
answered when they called the cell phone number subject to the Ping Warrants;
(3) the officers’ observations of the same man leave Alvarez’s suspected residence
and lock the door; and (4) the results of the Ping Warrants, which often placed the
subject cell phone at this residence. Officer Tursi also stated his belief, based on
training and experience, that those involved in drug trafficking often keep narcotics
in their homes. Taken together, these facts provided a substantial basis for the
issuing magistrate to infer that evidence of drug trafficking would be found on
Alvarez and in his suspected residence. See United States v. Kvashuk, 29 F.4th
1077, 1085 (9th Cir. 2022); United States v. Angulo-Lopez, 791 F.2d 1394, 1399
3 (9th Cir. 1986).
3. Nor did the district court err in concluding that probable cause supported
the warrantless arrest of Alvarez, incident to which police seized from his person
two cell phones and keys to the residence subject to the Personal Warrant. See
United States v. Brobst, 558 F.3d 982, 997 (9th Cir. 2009). Even assuming the
arrest occurred when Officer Tursi pointed his gun toward Alvarez to stop
Alvarez’s flight, see United States v. Smith, 633 F.3d 889, 892–93 (9th Cir. 2011),
this attempted flight, along with the officers’ prior investigations, established “a
fair probability that [Alvarez] had committed a crime.” United States v. Struckman,
603 F.3d 731, 739 (9th Cir. 2010) (quoting United States v. Gonzales, 749 F.2d
1329, 1337 (9th Cir. 1984)).
4. The district court did err in concluding that the fourth and final warrant
issued in this case, which authorized a search of the contents of the cell phones
found on Alvarez following his arrest (the “Cell Warrant”), was not overbroad.1
See King, 985 F.3d at 707. While Officer Tursi’s supporting affidavit established
probable cause to believe that evidence of communications about drug-sales
activities would be found on the cell phones, the affidavit provides no basis to
conclude that the cell phones’ media files would contain evidence of drug
1 We otherwise agree with the district court that the Cell Warrant’s supporting affidavit met the Fourth Amendment’s particularity requirements. See United States v. King, 985 F.3d 702, 707 (9th Cir. 2021).
4 trafficking. See id. (“The scope of a warrant must be limited by its probable cause.”
(citing United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir.
2009))). Therefore, the Cell Warrant was overbroad with respect to the seizure of
the cell phones’ media files. See SDI Future Health, 568 F.3d at 705 (finding
portions of a warrant overbroad where “probable cause [did not] exist[] to seize all
items of [those] particular type[s]” (alterations in original) (quoting United States
v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10260
Plaintiff-Appellee, D.C. No. 3:20-cr-00086-WHO-1 v.
ALEJANDRO ALVAREZ, AKA Alejandro MEMORANDUM* Alvarez Castro, AKA Alejandro Castro- Lopez, AKA Chewy,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding
Argued and Submitted April 5, 2024 San Francisco, California
Before: M. SMITH, HURWITZ, and JOHNSTONE, Circuit Judges.
Alejandro Alvarez, also known as “Chewy,” was convicted after a jury trial
of possession with intent to distribute more than 500 grams of methamphetamine
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). Alvarez appeals the district
court’s denial of his pretrial motion to suppress evidence obtained from his cell-
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. phone provider, his residence, his person, and two cell phones found in his
possession at the time of his arrest. Alvarez also appeals the district court’s denial
of a hearing under Franks v. Delaware, 438 U.S. 154 (1978). We review de novo
the district court’s ruling on a motion to suppress and its denial of a Franks
hearing. United States v. Norris, 942 F.3d 902, 907 (9th Cir. 2019). Exercising our
jurisdiction under 28 U.S.C. § 1291, we affirm. Because the parties are familiar
with the facts, we do not recount them here, except as necessary to provide context
to our ruling.
1. The district court did not err in concluding that probable cause supported
the first two warrants issued in this case, each of which authorized the collection of
cell-location information from Chewy’s suspected mobile device (the “Ping
Warrants”). See United States v. Elmore, 917 F.3d 1068, 1074 (9th Cir. 2019)
(“Probable cause exists where the totality of the circumstances indicates a ‘fair
probability that . . . evidence of a crime will be found in a particular place.’”
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))). The affidavits supporting
the Ping Warrants contained reports by a confidential informant who provided
Chewy’s known phone number and stated that Chewy could provide
methamphetamine and heroin. Although the affidavits did not contain information
about the confidential informant’s credibility, the affiant officer, Officer Tursi,
explained that the confidential informant’s reports were corroborated through
2 supervised controlled buys. As the district court found, these facts provided a
“substantial basis” for the issuing magistrate to conclude that the evidence sought
would lead to evidence of wrongdoing. See United States v. Bishop, 264 F.3d 919,
925–26 (9th Cir. 2001); see also United States v. Artis, 919 F.3d 1123, 1134–35
(9th Cir. 2019) (upholding probable cause determination where officers
corroborated unidentified informant’s tip).
2. The district court did not err in concluding that probable cause supported
the third warrant issued in this case, which authorized a search of Alvarez’s person
and Alzarez’s suspected residence (the “Personal Warrant”). See Elmore, 917 F.3d
at 1074. Officer Tursi’s supporting affidavit recounted: (1) the prior controlled
buys; (2) the officers’ observation that a man matching Alvarez’s description
answered when they called the cell phone number subject to the Ping Warrants;
(3) the officers’ observations of the same man leave Alvarez’s suspected residence
and lock the door; and (4) the results of the Ping Warrants, which often placed the
subject cell phone at this residence. Officer Tursi also stated his belief, based on
training and experience, that those involved in drug trafficking often keep narcotics
in their homes. Taken together, these facts provided a substantial basis for the
issuing magistrate to infer that evidence of drug trafficking would be found on
Alvarez and in his suspected residence. See United States v. Kvashuk, 29 F.4th
1077, 1085 (9th Cir. 2022); United States v. Angulo-Lopez, 791 F.2d 1394, 1399
3 (9th Cir. 1986).
3. Nor did the district court err in concluding that probable cause supported
the warrantless arrest of Alvarez, incident to which police seized from his person
two cell phones and keys to the residence subject to the Personal Warrant. See
United States v. Brobst, 558 F.3d 982, 997 (9th Cir. 2009). Even assuming the
arrest occurred when Officer Tursi pointed his gun toward Alvarez to stop
Alvarez’s flight, see United States v. Smith, 633 F.3d 889, 892–93 (9th Cir. 2011),
this attempted flight, along with the officers’ prior investigations, established “a
fair probability that [Alvarez] had committed a crime.” United States v. Struckman,
603 F.3d 731, 739 (9th Cir. 2010) (quoting United States v. Gonzales, 749 F.2d
1329, 1337 (9th Cir. 1984)).
4. The district court did err in concluding that the fourth and final warrant
issued in this case, which authorized a search of the contents of the cell phones
found on Alvarez following his arrest (the “Cell Warrant”), was not overbroad.1
See King, 985 F.3d at 707. While Officer Tursi’s supporting affidavit established
probable cause to believe that evidence of communications about drug-sales
activities would be found on the cell phones, the affidavit provides no basis to
conclude that the cell phones’ media files would contain evidence of drug
1 We otherwise agree with the district court that the Cell Warrant’s supporting affidavit met the Fourth Amendment’s particularity requirements. See United States v. King, 985 F.3d 702, 707 (9th Cir. 2021).
4 trafficking. See id. (“The scope of a warrant must be limited by its probable cause.”
(citing United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir.
2009))). Therefore, the Cell Warrant was overbroad with respect to the seizure of
the cell phones’ media files. See SDI Future Health, 568 F.3d at 705 (finding
portions of a warrant overbroad where “probable cause [did not] exist[] to seize all
items of [those] particular type[s]” (alterations in original) (quoting United States
v. Adjani, 452 F.3d 1140, 1148 (9th Cir. 2006))).
However, as Alvarez conceded during oral argument, the district court’s
error was harmless given the other evidence obtained and introduced at trial. See
28 U.S.C. § 2111; Fed. R. Crim. P. 52(a). “A party . . . is bound by concessions
made in its brief or at oral argument.” Hilao v. Est. of Marcos, 393 F.3d 987, 993
(9th Cir. 2004) (citing United States v. Crawford, 372 F.3d 1048, 1055 (9th Cir.
2004) (en banc)).
5. Finally, the district court did not err in denying Alvarez a Franks hearing.
Alvarez failed to present support for his contention that Officer Tursi intentionally
or recklessly misled the issuing judge by omitting critical information about the
confidential informant in the applications for the Ping and Personal Warrants. See
United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002). Further,
Alvarez also failed to show that these omissions materially affected the issuing
magistrates’ probable cause determinations, especially in light of the corroborating
5 investigations that officers performed. See Norris, 942 F.3d at 909–10; cf. United
States v. Bennett, 219 F.3d 1117, 1125 (9th Cir. 2000) (upholding probable cause
determination based in part on officers’ monitoring of drug transactions, even
considering a confidential informant’s diminished credibility).
AFFIRMED.