UNITED STATES of America, Plaintiff-Appellee, v. John Leon NOSTER, Defendant-Appellant.
No. 07-50391.
United States Court of Appeals, Ninth Circuit.
Argued Oct. 23, 2008. Submitted and Filed July 15, 2009. Amended Dec. 28, 2009.
591 F.3d 624
The judgment of the district court is affirmed.
Thomas P. O‘Brien, United States Attorney for the Central District of California, and Craig H. Missakian, Assistant United States Attorney, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. CR-04-00621-SVW.
Before: CONSUELO M. CALLAHAN and SANDRA S. IKUTA, Circuit Judges, and MILTON I. SHADUR,* District Judge.
Opinion by Judge CALLAHAN; Dissent by Judge SHADUR.
* The Honorable Milton I. Shadur, Senior United States District Judge for the Northern District of Illinois, sitting by designation.
ORDER AND AMENDED OPINION
ORDER
The opinion filed July 15, 2009, and published at 573 F.3d 664, is hereby amended. The amended opinion is filed concurrently with this order. The panel will entertain any petitions for rehearing or rehearing en banc that are filed in accordance with the applicable rules.
OPINION
CALLAHAN, Circuit Judge:
John Leon Noster (“Noster“) pled guilty to two counts of possessing unregistered firearms in violation of
I.
A. The Investigation
In October 2002, Pasadena Police Department Detective Dennis Beene (“Beene“) was assigned to investigate Noster‘s theft of several off-road vehicles from various dealerships. Beene and his partner, Detective Gabriel Marquez (“Marquez“), were on the Taskforce for Regional Autotheft Prevention (“TRAP“), and learned that the Glendale police were also
Around the same time that Noster stole the ATVs, he stopped making payments on a GMC Sierra truck and a Lance camper,2 both of which he acquired in December 2000. Noster obtained the truck from Thorson GMC in Pasadena after an initial down payment and financing the rest through GMAC. On the credit application, Noster falsely indicated that he was employed.3 Noster similarly misrepresented his employment status on his application to finance his purchase of the camper through Bank of the West. When Noster stopped making payments on both in October 2001, he owed around $31,935 on the truck and $22,071 on the camper. By the time Beene was assigned to investigate Noster‘s case in October 2002, neither GMAC nor Bank of the West had been able to locate Noster in their respective efforts to repossess the truck and camper. Beene learned of GMAC‘s repossession efforts by speaking with Dave Mundy from GMAC on October 9, 2002. Beene also spoke with the owner of Thorson GMC Pasadena, Tom George (“George“), who told Beene that he would not have sold Noster the truck if he had known that Noster was unemployed. Following this conversation, George signed a “CHP 180/Stolen Vehicle Report,” which Beene entered into a statewide stolen vehicle database.4
The same day that Beene spoke with George, Beene interviewed a Bank of the West representative, who advised him of the bank‘s unsuccessful attempts to locate Noster and repossess the camper. Beene also interviewed two of the three dealers from whom Noster stole ATVs in 2001. One of those dealers, Bill McLean (“McLean“), told Beene that Noster had written a check for a down payment on two ATVs, and then wrote a check for the balance, which bounced. Beene shared with McLean information about Noster‘s other thefts, including details regarding how Noster had absconded with the truck and camper.5
On November 11, 2002, while Beene was on vacation, McLean drove by Noster‘s father‘s home and spotted a truck and camper parked nearby matching the descriptions given to him by Beene. McLean notified the police, and Officers Murphy and Capa of the Los Angeles Police Department responded to the call. When the officers arrived on the scene, McLean told them that he believed the truck and camper were stolen, that Noster was the suspect, and that a warrant had been issued for Noster‘s arrest. McLean produced paperwork describing the truck and its license plate number. The officers ran the number through the stolen vehicle database, which indicated that the truck had been reported stolen. Because the truck was missing its license plate, the officers also ran the truck‘s VIN number, which confirmed the report. The officers called their watch commander, who ordered them to impound the truck.
In preparing to impound the truck, Officer Murphy discovered a backpack on the rear driver side floor containing what appeared to be an explosive device. They ceased their search, evacuated the area and contacted the Los Angeles Police Department bomb squad. Marquez and other TRAP officers also arrived on the scene, and Marquez entered the locked camper, purportedly to clear it of persons or possible explosive devices. After the incendiary device was rendered safe, the truck was impounded, and later taken to a private tow yard (Ken‘s Tow).
At some point prior to the impoundment, the officers learned from McLean that Noster‘s father‘s house was nearby. As they approached the house, Noster emerged and identified himself. The officers detained Noster for possession of an explosive device, and took him into custody after discovering the warrant for his arrest.
Following Noster‘s arrest and the impoundment of the truck, Marquez prepared a search warrant for Noster‘s father‘s home, which was executed on November 12, 2002. He recovered, among other things, a set of keys to the impounded truck, and proceeded to Ken‘s Tow where he tested the keys and found several documents and a Toshiba laptop inside the truck. Marquez left the items in place, which was secured in an enclosed building at the tow yard, and waited for Beene‘s return to complete the search.
Beene returned to work on November 18, 2002, and on November 19, he and Marquez searched the truck and camper.6 Documents recovered from the camper included receipts from a storage facility in Noster‘s name. The officers contacted the facility‘s manager, who confirmed that Noster rented a unit there. They obtained a search warrant for the storage unit, which was executed on November 21, 2002.
In executing the warrant, the officers found a number of items including, but not limited to: (1) three pipe bombs, (2) six 55-gallon drums, which the manager believed were filled with gasoline, (3) seven assault rifle magazines (one of which was loaded with 20 bullets), (4) what appeared to be a rifle silencer or barrel extender, (5) a rifle drum, (6) another smaller rifle magazine, and (7) a yellow paper tablet containing what appeared to be plans for us-
C. Procedural Background
Noster was convicted and sentenced in state court in connection with his theft of the ATVs. In May 2004, near the end of Noster‘s term in state prison, a federal grand jury indicted him on two counts of possessing unregistered firearms in violation of
On October 18, 2004, Noster filed a motion to suppress both the incendiary device and the pipe bombs. In denying Noster‘s motion, the district court held that Noster could not challenge the searches because he did not have a legitimate expectation of privacy in the truck or camper due, in part, to his failure to make payments on either for over a year. Further, the district court held that even if Noster could challenge the searches, the evidence was obtained lawfully. Specifically, it held that the incendiary device was obtained during a lawful inventory search, and that discovery of this device provided probable cause to search the entire truck and camper.
On February 1, 2005, Noster pled guilty to both counts and was sentenced to sixty-one months in prison. The sentence reflected a four-level enhancement under
II.
Noster appeals the district court‘s denial of his motion to suppress and its application of
A. Motion to Suppress
Noster‘s entire motion to suppress is based on Beene‘s allegedly improper entry of the stolen vehicle report into the database. We assume without deciding that Noster had a legitimate expectation of privacy in the truck and camper, and therefore had standing to challenge the search. But we conclude that even if Beene made a mistake in having George rather than a GMAC representative sign the report, such an error did not violate Noster‘s Fourth Amendment rights because Beene had probable cause to believe that the truck was stolen. Probable cause does not require proof beyond a reasonable doubt of every element of a crime. United States v. Corral-Villavicencio, 753 F.2d 785, 788 (9th Cir. 1985). Rather, probable cause exists where under the to-
1. November 11, 2002 Search
First, we address Noster‘s motion to suppress the incendiary bomb discovered in the truck on November 11, 2002. Noster contends that the seizure of and subsequent search of the truck by Officers Capa and Murphy was unconstitutional because it was based on Beene‘s “false” report that the truck was stolen.
This scenario is akin to the facts of United States v. Hensley, 469 U.S. 221, 233, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). In Hensley, a police officer in another jurisdiction issued a “wanted flyer” to other police departments indicating that the defendant was wanted in connection with a robbery investigation. Id. at 223, 105 S.Ct. 675. Police officers from another jurisdiction stopped the defendant‘s vehicle and uncovered evidence leading to his prosecution on other charges. See id. at 223-25, 105 S.Ct. 675. Without reaching the issue of whether the evidence should be excluded, the Court determined that there was no Fourth Amendment violation, because the officers who made the stop acted in reasonable reliance on a flyer issued by officers who had reasonable suspicion to justify the stop. Id. at 232-33, 105 S.Ct. 675; Arizona v. Evans, 514 U.S. 1, 12, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (noting that the conclusion in Hensley that the evidence was admissible rested on the determination that there was no Fourth Amendment violation, and that this did not contradict the Court‘s earlier pronouncements that the question whether the exclusionary rule applies is an issue separate from the question whether the Fourth Amendment rights were violated).
Like the arresting officers in Hensley, there is no dispute that Officers Capa and Murphy acted in reasonable reliance on the stolen vehicle database to conclude that the car was stolen and thus “seizable” pursuant to California law. See
The circumstances surrounding the entry of the report into the system do not undermine Beene or the officers’ probable cause or the officers’ otherwise lawful search and seizure. Contrary to the dissent‘s suggestion, there is no evidence that Beene fabricated the report in order to effect Noster‘s arrest or seizure of the truck—conduct which might well justify exclusion. Rather, the record shows that the report was the product of an investigation that led Beene to conclude, reasonably, that Noster had obtained the truck through fraud akin to the fraud used to procure the ATVs.
Indeed, the record shows that Beene did not sua sponte enter the report into the database. Rather, he had the report registered into the system after interviewing George, Mundy, and Noster‘s former employer, and after George—not Beene—signed it. Although California law does not explicitly authorize a dealer like George to report a vehicle stolen under these circumstances, it appears that GMAC may have done so as the “legal owner” of the truck.10 The fact that George, rather than GMAC, signed the report does not demonstrate bad faith on Beene‘s part.11 Rather, the record shows that Beene‘s investigation uncovered reliable information regarding Noster‘s fraud
Here, after talking to representatives of both GMAC and the dealership, Beene believed that Noster had acquired the truck through such criminal fraud. See n.4, supra. While the first element—Noster‘s intent to defraud—is not conclusively established given his initial payments on the truck, it might reasonably be inferred from his false statements on the credit application. Noster‘s false representation as to his employment status also supports the second element. Further, the purchase contract provided that the seller relied on Noster‘s statements, and George later confirmed to Beene that he would not have sold Noster the truck had he known that Noster was unemployed. However, proving Noster “stole” the truck through fraud is complicated by the fact that GMAC, not George, was the “legal owner” of the truck at the time of Beene‘s investigation, and by a lack of evidence as to whether GMAC would have extended credit to Noster had he disclosed his true employment status.
But whether or not Noster may have ultimately been proven guilty of “theft by false pretenses” is not the standard for determining whether Beene had probable cause to believe that the truck was stolen or obtained by fraud. We do not require that the facts known to Beene establish Noster‘s guilt beyond a reasonable doubt. Corral-Villavicencio, 753 F.2d at 788. Moreover, whether Officer Beene erred by having George rather than a GMAC representative sign the report does not undermine his reasonable belief that the truck was stolen when he had the report entered into the database. In Virginia v. Moore, the Supreme Court explained that a police officer does not violate “the Fourth Amendment by making an arrest based on probable cause but prohibited by state law.” 553 U.S. 164, 128 S.Ct. 1598, 1601, 1607, 170 L.Ed.2d 559 (2008). The Court explained that “an arrest based on probable cause” is reasonable under the Fourth Amendment even when the arrest was illegal as a matter of state law. Id. at 1605; see also United States v. Brobst, 558 F.3d 982, 990 (9th Cir. 2009) (applying the Court‘s holding in Moore to seizures of property). In other words, officers who have sufficient probable cause or reasonable suspicion for a search, seizure or arrest for purposes of the Fourth Amendment do not violate a defendant‘s constitutional rights even if the officers’ actions violate state laws. Applying Moore and Brobst to this case, the question here is whether the report, upon which Officers Capa and Murphy later rea-
“Probable cause exists ‘when police officers have facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime.‘” Wallace, 213 F.3d at 1220 (quoting United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985)). Here, Beene‘s belief that Noster had used fraudulent means to procure the truck was reasonable based on his investigation. Beene explained that Noster‘s theft of the ATVs from various dealerships through fraudulent means (i.e., Noster‘s withdrawal of money from his bank account shortly after writing checks to pay for the ATVs), together with the fraudulent statements on the credit applications for the truck and camper, led him to believe that Noster had committed a fraud in obtaining the truck. Beene‘s perspective was further supported by his interview of Mundy from GMAC, who confirmed that Noster had not made a payment on the truck for over a year and had evaded GMAC‘s repossession efforts, and George, who said that he would not have sold Noster the truck if he had known that Noster was unemployed.
Although these facts may not ultimately prove Noster‘s theft of the truck by false pretenses, they are more than sufficient to support Beene‘s reasonable belief that Noster‘s acquisition and continued possession of the truck was unlawful See Wallace, 213 F.3d at 1220 (noting that officer “was not taking the bar exam” when he stopped a vehicle based on his mistaken belief regarding which section of the vehicle code defendant‘s tinted windows violated). Such a reasonable belief fails to establish a violation of Noster‘s constitutional rights. Accordingly, we conclude that Beene had probable cause to believe that the truck was seizable and affirm the district court‘s denial of Noster‘s suppression motion with respect to the incendiary device discovered during the search on November 11, 2002.13
2. November 19, 2002 Search
Noster also appeals the district court‘s denial of his motion to suppress the pipe bombs discovered in his rented storage unit on November 21, 2002. The search warrant for that facility was based on evidence uncovered during a search of the truck and camper on November 19. Noster challenges the November 19 search of the camper based on (1) the alleged unlawfulness of Beene‘s initial stolen vehicle report, (2) the officers’ failure to comply with Los Angeles Police Department inventory procedures, and (3) the officers’ delay in completing the search and their failure to obtain a warrant.
We have already rejected Noster‘s challenge to the stolen vehicle report, and his other arguments are not persuasive. The record shows that Beene and Marquez were “processing” the truck/camper for evidence, and not simply taking an inventory of the contents.14 Although the officers
We conclude that the search on November 19, 2002, was supported by probable cause and was reasonable under the circumstances. The police had properly seized the truck in connection with the report that it was stolen, and Noster does not argue that their continued retention of it was in any way improper. Furthermore, the initial inventory search on November 11 uncovered evidence of additional criminal activity, namely, the incendiary device. See
Nor did the officers’ delay in completing the search of the truck and camper diminish the probable cause or render the search otherwise unreasonable. Indeed, the “justification to conduct a warrantless search does not vanish once the car has been immobilized,” and “[t]here is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure.” United States v. Johns, 469 U.S. 478, 484, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985) (upholding the search of packages seized from a truck three days after the initial seizure) (citations and internal quotation marks omitted); United States v. Albers, 136 F.3d 670, 674 (9th Cir. 1998) (holding that where there is probable cause to support the search, the search need not occur immediately upon seizure but the delay must be reasonable). Here, the truck was being retained, in part, in connection with TRAP‘s investigation of Noster‘s vehicle thefts. Accordingly, it was reasonable to await Beene‘s return to complete the search, as he was the lead detective on the case.
B. No Abuse of Discretion in Sentencing
Noster challenges the district court‘s application of
A defendant is subject to a four-level sentencing enhancement under
unclear regarding which official policies would govern. Noster cites the Los Angeles Police Department‘s procedures, and the officers’ alleged failure to comply with them by failing to list in the “remarks” section all of the items seized from the truck and camper. However, it is unclear whether the Los Angeles Police Department procedures would apply, since Beene worked for the Pasadena Police Department in connection with the TRAP.
[t]he plan to commit the felony need not be fully developed. Thus if a defendant acquires a gun intending to use it in a bank robbery, he need not have cased the location or even identified a specific bank that he plans to rob. But he must have formed a firm intent to use the gun for a felonious purpose.
Here, the government asserted that Noster planned to use the incendiary devices to bomb companies or commodities in a scheme to make money. Specifically, it cited evidence suggesting that Noster believed that bombing specific companies would drive down the price of stock and allow him to make a profit by short selling the stock, and that bombing certain commodities would increase their price, thereby allowing him to cash in on previously purchased futures.16 The relevant evidence included a list of various commodities and companies, commodities trading websites, shopping malls, and “stocks” of specific companies with notes to research the companies’ weaknesses.17 Another document detailed Noster‘s “plan” to destroy a structure by either dropping incendiaries from a gyrocopter or by using an ATV to approach the structure undetected with larger incendiaries. The investigation uncovered the stolen ATVs, around $180,000 in cash, and numerous books and publications containing instructions for making homemade explosives. Noster had the ingredients to make an incendiary device described in one of these books, as well as two such completed devices. He also had extensive information about purchasing a gyrocopter, including price lists, classified advertisements, notations about various models, and information regarding gyrocopter flight school. In assessing all this evidence, the district court noted that while Noster‘s fraud crimes appeared to be unrelated to the contemplated felony, they nonetheless demonstrated “the mindset of someone who is bold enough to act out [such] a plan.” Although Noster‘s scheme may not have been well-developed, we conclude that the record contains sufficient evidence to support the district court‘s
III.
In sum, we affirm the district court‘s denial of Noster‘s motion to suppress, as the circumstances surrounding the search of the truck do not warrant exclusion. We also conclude that the district court did not abuse its discretion in enhancing Noster‘s sentence pursuant to
AFFIRMED.
SHADUR, Senior District Judge, dissenting:
When this case was submitted to our panel, we were well aware that just over two weeks earlier—on the second day of the Supreme Court‘s October 2008 Term—the Court had heard oral argument in Herring v. United States. Because it seemed likely that the Fourth Amendment issue as posed in Herring might cast light on the issue in this case, we elected to hold off our opinion here until we learned of the Supreme Court‘s resolution in Herring.
That decision came down in mid-January, and although Herring produced a five-to-four split in the Court, that division has proved remarkable in terms of our case. Both the five-Justice majority and the four-Justice minority, I believe, have stated principles that call for reversal here. Let me explain why.
Vigilantism—whether manifested by group action such as that of a lynch mob or by individual rogue activity—is the enemy of orderly law enforcement. It is infinitely worse when practiced by a law enforcement officer such as Detective Beene, for such officers are cloaked with authority that can too readily turn the wheels of justice into wheels of constitutional injustice.
Yet Beene, no doubt prompted by defendant Noster‘s unsavory past, seized on his delinquency in payments on the 2001 GMC Sierra truck to distort that delinquency into a nonexistent “theft” of the truck. Never mind that Noster had not only made the initial down payment but had regularly made the first seven monthly payments on the vehicle before he went delinquent. Never mind that GMAC Financial Services, which had financed the transaction and was thus the creditor directly interested in getting repaid for the credit that it had extended (and having ample resources at its command), had taken no steps to label Noster a thief. Instead its efforts had been devoted exclusively to seeking an orderly repossession of the truck, just as it would with any other buyer in default on his payments. Noster was a delinquent purchaser, yes—but a thief? Decidedly not.
To be sure, the majority is correct in observing that Beene—like the officer in the Wallace case—“was not taking the bar exam” when he then performed his sleight of hand, somehow converting Noster‘s assertedly “unlawful” (the majority‘s word) retention of the vehicle when he went delinquent after having made the first seven payments into a purported “theft” of that vehicle. But having said that, the majority has itself had to strain in an effort to place Noster‘s post-delinquency retention of the vehicle under a “theft by false pretenses” rubric (what “false pretenses” were made by Noster, pray tell, when he bought the vehicle and thereafter proceeded to make a substantial series of the required installment payments?).
Essentially the majority seeks to transmute base metal into gold by transforming Detective Beene‘s unequivocal statement that the vehicle was stolen into some notion of “criminal fraud” or the like. With
In any case, Beene did indeed go about creating a scenario to convert Noster‘s payment delinquency—a civil matter—into a purported theft. To that end Beene first went to Thorson GMAC Pasadena owner-president Tom George (“George“), and he said in his later report that George signed a CHP 180/Stolen Vehicle Report. That version of events is certainly questionable, for George later filed this declaration with the district court:
I would not fill out nor sign a stolen vehicle report in any case where a buyer failed to make payments (to the finance company) on a car that was purchased through Thorson GMC. Nor would I call the police regarding a situation where the buyer failed to make such payments. I would not have the authority to report a vehicle stolen in that circumstance because the dealership would not be considered the owner of the vehicle. I did not call the police to report that Mr. Noster stole his truck and I did not fill out a stolen vehicle report relating to Mr. Noster or his truck. However, I do know Detective Beene because he has been at my dealership related to vehicles that have been stolen off the lot.
But whoever signed the report in fact, there is no question that Beene at least instigated the “stolen” characterization. In any event, Beene then spoke with Bill McLean (“McLean“), who had sold two motorcycles to Noster the year before only to find that the check for final payment of the purchase price (which McLean had verified through Noster‘s bank as supported by sufficient funds) turned out later to be returned for insufficient funds.
It was then McLean who later spotted the GMC Sierra truck with a Lance Camper and reported it to the police. With Beene away on vacation, other officers responded to McLean‘s call and were told that the information he had obtained from Beene was that the truck and camper were stolen. That was confirmed by the officers by tracking down the stolen-truck report, and they then obtained orders to impound the truck and undertook the search at issue in this case.
That is the backdrop against which the decision in Herring may appropriately be viewed. Speaking for the five-Justice majority there, Chief Justice Roberts rejected a bright-line rule in which one law enforcement officer‘s good faith reliance on another officer‘s unconstitutional misdeed would automatically be constitutionally tainted as well. Instead the majority opinion summarized its holding in these terms (555 U.S. 135, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009)):
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.
Just a bit later the majority opinion went on to say (id. at 703):
If the police have been shown ... to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation.
Those holdings aptly describe Detective Beene‘s misconduct. Surely his actions were both deliberate and culpable and caused a knowingly false entry, so that I
In sum, I believe that the Herring opinions, fairly read, call unanimously for reversal. By contrast, the majority in this case—fully aware (as I am too) that Noster is a very bad man indeed—has opted to ignore Beene‘s obvious belief that when it comes to dealing with someone he views as among the dregs of society, the ends somehow justify illegal means. We are entitled to expect—and to get—better than that from the personnel to whom we entrust the powers of law enforcement, not of law breaking. Accordingly I respectfully dissent.