United States v. Jason Jones ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50210
Plaintiff-Appellee, D.C. No.
5:17-cr-00104-SVW-1
v.
JASON RAY JONES, AKA Jason Jones, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted July 10, 2019
Pasadena, California
Before: M. SMITH and FRIEDLAND, Circuit Judges, and BASTIAN,** District
Judge.
Just shy of 4:30 a.m. on May 5, 2017, San Bernardino Deputy Sheriff Kayla
Peters responded to a dispatch request and encountered Jason Jones asleep in a
vehicle outside of a Circle K convenience store. Peters ran a routine vehicle check
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
and then performed a fruitless pat-down search. Afterwards, Peters searched
Jones’s vehicle, finding a firearm, ammunition, and a small scale with a crystalline
substance. Minutes later, Sergeant Edward Bachman arrived on the scene and
recognized Jones, which led to his arrest.
Jones was indicted for being a felon-in-possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1). The district court denied his
suppression motion, finding that although Peters did not have probable cause to
search Jones’s vehicle, the police would have inevitably discovered the items.
Jones entered a conditional guilty plea and appealed the denial of suppression. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand for
additional fact-finding to determine whether Peters had probable cause to search
Jones’s vehicle.
We review motions to suppress and whether there was probable cause to
support a warrantless search of a vehicle de novo. United States v. Andrade, 784
F.2d 1431, 1433 (9th Cir. 1986); United States v. Faagai, 869 F.3d 1145, 1149 (9th
Cir. 2017). Pursuant to the automobile exception, a warrantless search of a vehicle
is permissible “if there is probable cause to believe that the vehicle contains
evidence of a crime.” Faagai, 869 F.3d at 1150 (quoting United States v. Brooks,
610 F.3d 1186, 1193 (9th Cir. 2010)).
2
We agree with the district court’s determination that Peters did not have
probable cause to search Jones’s vehicle for evidence or contraband related to a
drug crime or robbery. The district court questioned Peters’ reliability, and
considering the totality of the circumstances along with the district court’s
findings, we conclude that there was not a “fair probability” that Jones’s vehicle
contained evidence of either of these crimes. Id. (quoting United States v.
Rodriguez, 869 F.2d 479, 484 (9th Cir. 1989)).
For the first time, at appellate oral argument, the Government contended that
Peters had probable cause to search Jones’s vehicle for evidence of vehicle theft.
While issues not presented to the district court generally may not be raised for the
first time on appeal, “the Supreme Court has made clear [that] it is claims that are
deemed waived or forfeited, not arguments.” United States v. Guzman-Padilla,
573 F.3d 865, 877 n.1 (9th Cir. 2009) (alteration in original) (quoting United States
v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)). Because the Government
raised the claim that Peters had probable cause to search Jones’s car, albeit for
evidence of drug use or robbery, we conclude that the Government’s argument for
vehicle theft is neither waived nor forfeited.
Although we may affirm on any basis fairly supported by the record, we
have declined to do so when it would “unfairly deprive the defendant of the
opportunity to adduce evidence.” United States v. Parr, 843 F.2d 1228, 1232 (9th
3
Cir. 1988). The Government’s representations to the district court regarding which
crimes it believed supported the search—none of which included vehicle theft—
resulted in an underdeveloped record on this issue. See United States v.
Henderson, 241 F.3d 638, 649 n.1 (9th Cir. 2009) (permitting government to raise
new argument of probable cause to search the defendant’s car because he had
“fully litigated all of the facts pertaining to probable cause for his arrest and
probable cause for the search of his car”). Accordingly, we vacate the district
court’s denial of suppression and remand for additional fact-finding and
consideration of this new theory in the first instance.1
VACATED and REMANDED.
1
Because we remand for further fact-finding on probable cause, we need not
decide whether the district court appropriately concluded that the inevitable
discovery doctrine applied.
4