United States v. Wasfi Abbassi ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50338
Plaintiff-Appellee, D.C. No.
5:17-cr-00101-PSG-1
v.
WASFI ADEL ABBASSI, AKA Abbassi MEMORANDUM*
Wasfi Adel,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted December 9, 2019
Pasadena, California
Before: BEA, COLLINS, and BRESS, Circuit Judges.
Wasfi Abbassi appeals from his guilty plea to three counts related to drug
trafficking, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C.
§ 924(c)(1)(A)(i). He appeals the denial of his motion to suppress evidence and
challenges certain conditions of supervised release included in his sentence. For
the following reasons, we affirm the conviction and the denial of the motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
suppress evidence, but we vacate the sentence as it relates to special condition of
supervised release 2 and remand to the district court with instructions to modify
that condition of supervised release.
1. Abbassi was not unreasonably detained by Officer Rollings in
violation of the Fourth Amendment, and the circumstances of the detention did not
amount to an arrest. Officers approaching a vehicle to arrest one or more occupants
inside the car may briefly detain other, unknown occupants and may conduct a
frisk of such persons. United States v. Vaughan, 718 F.2d 332, 335 (9th Cir. 1983).
This sort of brief “detention does not automatically become an arrest when officers
draw their guns [or] use handcuffs.” Gallegos v. City of Los Angeles, 308 F.3d 987,
991 (9th Cir. 2002) (citations omitted). Under the circumstances here, the officers’
choices to draw their weapons while executing the felony arrest warrants for
Justice, who was seated in the passenger seat of Abbassi’s car, and to use
handcuffs on Abbassi while conducting a frisk for weapons immediately after,
were “reasonable response[s] to legitimate safety concerns on the part of the
investigating officers” that did not transform the detention into an arrest.
Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996) (emphasis omitted).
2. Officer Rollings was not required to read Abbassi his Miranda rights
before asking him if he “had anything illegal on his person,” as he began the frisk
for weapons. When officers have the authority necessary to conduct a brief stop,
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they may question the detained individual about matters “beyond the initial
purpose of the stop,” even without particularized suspicion regarding the subject
matter of the questioning, so long as the questioning “does not prolong the stop.”
United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007). The officer’s
question, whether Abbassi had “anything illegal on his person,” and Abbassi’s
response, a “little bit of coke,” happened within the first fifteen seconds that
Officer Rollings had Abbassi out of the car and in handcuffs and before the officer
completed the frisk. This question did not prolong the stop.
Further, when Officer Rollings asked Abbassi whether he had anything
illegal on his person, Abbassi was not “in custody” such that Miranda warnings
were required. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam).
Abbassi had been detained only briefly by Officer Rollings in the course of the
execution of the warrants to arrest Justice, and, despite the officer’s use of
handcuffs, a Miranda warning was not required when, as here, the defendant was
not placed in custody. United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir.
1982) (“Handcuffing a suspect does not necessarily dictate a finding of
custody. . . . Strong but reasonable measures to insure the safety of the officer or
the public can be taken without necessarily compelling a finding that the suspect
was in custody.”) (quotations omitted).
3. The warrant to search Abbassi’s residence was valid and based on
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probable cause. Whether the warrant correctly identified possession of marijuana
for the purpose of sales as a misdemeanor under California law is irrelevant. Under
the Fourth Amendment, a warrant may be issued to search a location where “there
is a fair probability that contraband or evidence of a crime will be found . . . .”
Illinois v. Gates, 462 U.S. 213, 238 (1983) (emphasis added).
The Superior Court judge issuing the warrant had “a substantial basis for
determining the existence of probable cause.” Id. at 239. Abbassi’s only preserved
arguments that the warrant was not supported by probable cause are (1) that the
warrant application falsely described the search at the Crescent Avenue residence
in 2014 as uncovering marijuana and more than $100,000 cash, and (2) that
information about his three prior arrests between 2008-2014 was irrelevant because
the arrests were “stale.” He has not shown good cause for why the additional
arguments he now raises should be considered for the first time on appeal. See Fed.
R. Crim. P. 12(c)(3); United States v. Guerrero, 921 F.3d 895, 898 (9th Cir. 2019)
(per curiam).
There is no evidence that Detective Hernandez “intentionally or recklessly
made false or misleading statements” in the affidavit about the discovery of
marijuana and $100,000 cash at the Crescent Avenue residence in 2014. See
United States v. Martinez-Garcia, 397 F.3d 1205, 1215 (9th Cir. 2005).
Additionally, any inaccuracy was not material. See id. Even excising the statement
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that in 2014 marijuana and $100,000 cash had been found at the residence, the
remaining facts in the affidavit were enough to support a probable cause finding.
Similarly, it was proper for the detective to include Abbassi’s prior arrest
information in her affidavit in support of the warrant, and it was proper for the
judge to rely upon it. See Greenstreet v. Cty. of San Bernardino, 41 F.3d 1306,
1309 (9th Cir. 1994). But even if the information about those prior arrests was
omitted from the warrant application, there still would have been probable cause to
search his home.
4. Special condition of supervised release 2 solves the first problem in
Abbassi’s standard condition 14 that was identified in United States v. Evans, 883
F.3d 1154, 1163–64 (9th Cir. 2018), by removing language related to Abbassi’s
personal history or characteristics. But under Evans, left unresolved is the
ambiguity whether the only “specific risks” about which the probation officer may
require Abbassi to inform “specific persons and organizations” are those that he
personally poses to those persons and organizations. United States v. Brewer, 770
F. App’x 361, 362 (9th Cir. 2019); see Evans, 883 F.3d at 1164. We are bound by
Evans, and our decision in Brewer, although unpublished, applied Evans to a
special condition worded identically to the one here. Under these circumstances,
we direct the district court to remedy the deficiency on remand. See United States
v. Ped, 943 F.3d 427, 434 (9th Cir. 2019). The district court may do so by
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modifying the condition to conform to the standard notification condition in the
Central District of California’s General Order No. 18-10 (standard condition No.
14), or by modifying the condition to conform with the Sentencing Guidelines’
current standard notification condition, U.S.S.G. § 5D1.3(c)(12).
As to standard conditions of supervised release 5, 6, and 14, no additional
modification on remand is necessary. Special condition 1 of the written judgment
and the oral pronouncement of the sentence were explicit that those conditions do
not apply to Abbassi, and the attachment of the full list of standard conditions did
not undo that express limitation on which conditions were being incorporated from
that list. We see no conflict between the oral and written judgments, but in any
event, the “oral pronouncement controls.” United States v. LaCoste, 821 F.3d
1187, 1190 (9th Cir. 2016).
AFFIRMED in part, VACATED in part, and REMANDED.
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