                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 24 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-50413

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00952-GHK-7

  v.
                                                 MEMORANDUM*
NATHAN NWOBI,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                      Argued and Submitted October 9, 2013
                              Pasadena, California

Before: PAEZ and HURWITZ, Circuit Judges, and ERICKSON, Chief District
Judge.**

       Defendant Nathan Nwobi appeals his conviction for one count of conspiracy

to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, two

counts of possession with intent to distribute marijuana in violation of 21 U.S.C. §

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for the District of North Dakota, sitting by designation.
841(a)(1), and two counts of maintaining premises for the purpose of

manufacturing, distributing, and using marijuana in violation of 21 U.S.C. §

856(a)(1). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      1. The district court did not err in denying Nwobi’s motion to suppress

evidence obtained through a warrantless search of a commercial waste container.

Officers searched a waste bin located in a shared parking lot of a business park.

The waste receptacle was visible from the street, the gate surrounding the business

park was open, and the commercial waste bin was not locked. Because Nwobi had

sufficiently exposed the contents of the waste container to the public, he lacked an

objectively reasonable expectation of privacy in his trash. California v.

Greenwood, 486 U.S. 35, 40 (1988).

      2. The district court did not err in denying Nwobi’s motion to suppress

evidence obtained pursuant to a search warrant. The warrant authorized officers to

search four separate locations. The affidavit in support of the warrant application

was well-supported by information obtained through an authorized wiretap of a co-

defendant’s cell phone, surveillance spanning several weeks, and a search of a

trash bag Nwobi was observed throwing away, which contained marijuana

clippings and stalks. On the basis of this evidence, the magistrate judge reasonably

determined that probable cause existed to search all four locations. See United


                                    Page 2 of 5
States v. Crews, 502 F.3d 1130, 1136-37 (9th Cir. 2007); United States v. Pitts, 6

F.3d 1366, 1369 (9th Cir. 1993).

      The district court also did not err in denying the alternative request for an

evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). A

defendant is not entitled to a Franks hearing if, once the false statements are

excised and the omitted information is inserted, probable cause still exists. Id. at

171-72; United States v. Perdomo, 800 F.2d 916, 921 (9th Cir. 2000). Here, we

find no error in the district court’s determination that the false statements and

omissions Nwobi identified were not essential to a probable cause finding.

      3. Before trial, Nwobi timely filed a motion to suppress the cell phones and

computers seized from his residence and any evidence obtained from a search of

the cell phones and computers. The district court denied the motion as moot with

regard to the cell phones based on a colloquy with the prosecutor at a hearing on

the motion, in which the prosecutor suggested that no useful evidence was

recovered from the cell phones. At trial, the government offered as evidence a cell

phone identification number, which had been obtained by removing the battery of

the cell phone. After this evidence was introduced, Nwobi never renewed his

motion to suppress, and the government argues that he waived any argument that

the introduction of cell phone evidence violated his Fourth Amendment rights.


                                     Page 3 of 5
      Even assuming that Nwobi did not waive this argument, we conclude that

the warrant properly authorized the seizure of the cell phones. The warrant

specifically contemplated the search and seizure of information likely to be found

on cell phones. The affidavit offered in support of the warrant application

described telephone conversations, intercepted through an authorized wiretap, that

provided probable cause to seize the cell phones. Because the government had

lawful possession of the cell phones, it was permitted to conduct an inventory

search. Colorado v. Bertine, 479 U.S. 367, 371 (1987); United States v. Mancero-

Londono, 912 F.2d 373, 376 (9th Cir. 1990). Record evidence supports the

conclusion that the cell phone identification number was obtained as part of a

lawful inventory search performed by the Drug Enforcement Agency before

returning the cell phone to Nwobi.

      4. Finally, we turn to Nwobi’s prosecutorial misconduct claim. Because

Nwobi never raised his allegation of prosecutorial misconduct at trial, we review

for plain error. “To be plain, the error must be clear or obvious, and an error

cannot be plain where there is no controlling authority on point . . . .” United

States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012). Nwobi cannot meet this

burden. Although the prosecutor’s representation may have been imprecise, it did

not constitute misconduct.


                                     Page 4 of 5
AFFIRMED.




            Page 5 of 5
