United States v. Osbaldo Sarabia

FILED
NOT FOR PUBLICATION JUL 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10317
Plaintiff - Appellee, D.C. No. 2:06-cr-00464-JAM-1
v.
MEMORANDUM*
OSBALDO OSWALDO SARABIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted July 13, 2011
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and LYNN, District Judge.**
Osbaldo Sarabia appeals the district court’s decision denying his motion to
suppress evidence found in his vehicle and request for evidentiary hearing. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for Northern Texas, Dallas, sitting by designation.
The district court did not err in finding that the agents had probable cause to
search Sarabia’s vehicle. An officer has probable cause to conduct a warrantless
search of a vehicle when, under the totality of the circumstances, there is a fair
probability that contraband or evidence of a crime will be found in the vehicle,
United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010), and the vehicle is
readily mobile, United States v. Davis, 530 F.3d 1069, 1084 (9th Cir. 2008). The
“fair probability” inquiry is a “commonsense, practical question,” which includes
reasonable inferences. United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir.
2006) (en banc) (internal quotation marks omitted); see also Davis, 530 F.3d at
1084. When considering whether an informant’s tip is sufficient to support a
finding of probable cause, the court must employ a totality of the circumstances
approach that takes into consideration the informant’s veracity or reliability and his
basis of knowledge. Illinois v. Gates, 462 U.S. 213, 238 (1983).
Sarabia contends that the agents lacked probable cause to conduct a
warrantless search of his vehicle because they based the probable cause
determination largely on information provided by a confidential informant,
recently arrested in possession of a large quantity of drugs. However, the
confidential informant implicated himself when he described a history of drug
dealing transactions with Sarabia, United States v. Patayan Soriano, 361 F.3d 494,
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505 (9th Cir. 2004) (holding reliability of a criminal informant may be
demonstrated by an admission against his penal interest), and the police
independently corroborated information the confidential informant provided,
United States v. Angulo-Lopez, 791 F.2d 1394, 1397-98 (9th Cir. 1986). Based on
such indicia of reliability and a phone conversation between Sarabia and the
confidential informant monitored by an agent, which the affidavit of the agent
logically interpreted as being related to a drug transaction, it was reasonable for the
agents to infer that contraband would be found in Sarabia’s vehicle.
Sarabia also argues that the district court abused its discretion in denying
Sarabia’s request for an evidentiary hearing on the interpretation of the phone calls
between the confidential informant and Sarabia, and the details of the confidential
informant’s discussions with the agents. However, Sarabia showed no contested
issues of fact and only provided conclusory reasons in support of having an
evidentiary hearing, thus demonstrating only a desire to cross-examine the agents.
Franks v. Delaware, 438 U.S. 154, 171 (1978) (holding “the challenger’s attack
must be more than conclusory and must be supported by more than a mere desire
to cross-examine”). Sarabia did not “allege facts with sufficient definiteness,
clarity, and specificity to enable the trial court to conclude that contested issues of
fact exist.” United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Therefore,
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the district court did not abuse its discretion in denying Sarabia’s request for an
evidentiary hearing.
AFFIRMED.
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