United States v. Devin Thompson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2021
• Docket: 20-10079
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10079

Plaintiff-Appellee, D.C. No. 2:16-cr-00230-GMN-DJA-1 v.

DEVIN THOMPSON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Submitted March 10, 2021** Las Vegas, Nevada

Before: CLIFTON, NGUYEN, and BENNETT, Circuit Judges.

Devin Thompson pleaded guilty to conspiracy to distribute a controlled

substance, possession of a firearm in furtherance of a drug trafficking crime, and

possession of a firearm by a prohibited person, reserving the right to appeal the

district court’s orders denying his suppression motions. On appeal, Thompson

* 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). argues that the district court erred in denying the suppression of evidence found in

his vehicle and obtained under a wiretap order. We have jurisdiction under 28

U.S.C. § 1291 and affirm.

“[U]nder the automobile exception, probable cause alone suffices to justify a

warrantless search of a vehicle lawfully parked in a public place, as long as the

scope of the search is reasonable.” United States v. Bagley, 772 F.2d 482, 491 (9th

Cir. 1985) (citing California v. Carney, 471 U.S. 386, 390–94 (1985)). It is

undisputed that the police had probable cause to search Thompson’s vehicle. And

his vehicle was parked in a public place for Fourth Amendment purposes, as

Thompson does not claim that he had any reasonable expectation of privacy in the

parking lot where his vehicle was located.1 See United States v. Santana, 427 U.S.

38, 42 (1976). Thus, the warrantless seizure and search of Thompson’s vehicle fell

within the automobile exception. See Bagley, 772 F.2d at 491.

Thompson argues that a separate showing of additional exigent

circumstances, beyond the exigency of the inherent mobility of automobiles on

which the automobile exception is partly based, is required when a vehicle is

located on private property. But Thompson identifies no case that holds there is a

separate exigency requirement when a vehicle is located on private property. And

a car is no less mobile in a parking lot twenty feet from a public road than it is

1 Thompson does not argue that the scope of the search was unreasonable.

2 when parked on a public road. Further, Thompson’s position is undermined by the

fact that “we have explicitly held that the vehicle exception applies to a search of a

vehicle parked on a private driveway,” United States v. Hatley, 15 F.3d 856, 859

(9th Cir. 1994), and by our prior application of the automobile exception to

searches conducted on private property without a separate showing of exigent

circumstances, see id. at 858–59 (car parked on defendant’s property); see also

United States v. Hamilton, 792 F.2d 837, 842–43 (9th Cir. 1986) (motor home

parked in a residential driveway), disapproved of on other grounds by United

States v. Kim, 105 F.3d 1579 (9th Cir. 1997).

We are also unpersuaded by Thompson’s argument that the district court

erred in determining that the 43-page affidavit showed that the wiretap was

necessary. Contrary to Thompson’s argument, the district court applied the correct

necessity standard. See United States v. Staves, 383 F.3d 977, 980 (9th Cir. 2004)

(“The issuing judge must determine . . . if the wiretap is necessary because normal

investigative procedures, employed in good faith, have failed, would likely be

ineffective, or are too dangerous.”). And we agree with the district court’s

conclusion that, despite the presence of some conclusory language, the affidavit, as

a whole, contains case-specific facts demonstrating necessity. See United States v.

Torres, 908 F.2d 1417, 1423 (9th Cir. 1990).

Finally, Thompson argues that the district court erred by refusing to hold a

3 hearing under Franks v. Delaware, 438 U.S. 154 (1978), to test some of the

statements in the affidavit supporting the wiretap order. To establish he is entitled

to a Franks hearing, a defendant must “make[] a substantial preliminary showing

that a false statement was deliberately or recklessly included in an affidavit

submitted in support of a wiretap order, and the false statement was material to the

district court’s finding of necessity.” Staves, 383 F.3d at 982. Thompson

identifies a few statements in the affidavit that he claims are false, but he fails to

explain how they are false or how they were material to the district court’s

necessity determination. Thus, he has failed to show that he is entitled to a Franks

hearing. See id.

AFFIRMED.