                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 18-50430
                 Plaintiff-Appellee,
                                            D.C. No.
                 v.                      2:17-cr-00729-
                                             CAS-1
JOHN CHRISTOPHER MAGDIRILA,
AKA John Christopher Gambol
Magdrila, AKA Jose Francis                 OPINION
Hernandez-Castillo, AKA JC, AKA
Sike,
              Defendant-Appellant.

     Appeal from the United States District Court
         for the Central District of California
     Christina A. Snyder, District Judge, Presiding

       Argued and Submitted February 13, 2020
                Pasadena, California

                  Filed June 23, 2020

      Before: Marsha S. Berzon, Ryan D. Nelson,
         and Kenneth K. Lee, Circuit Judges.

             Opinion by Judge R. Nelson;
             Concurrence by Judge Berzon
2                UNITED STATES V. MAGDIRILA

                          SUMMARY *


                          Criminal Law

    The panel affirmed the district court’s denial of a
criminal defendant’s motion to suppress contraband found
during an inventory search of a vehicle he was driving,
vacated challenged conditions of supervised release, and
remanded.

   The panel held that the defendant preserved both of his
central arguments on appeal challenging the denial of the
motion to suppress.

    The panel held that the officers’ failure to precisely
comply with Inglewood Police Department towing policy
when they failed to completely fill out an inventory form did
not render the search invalid. The panel explained that this
case is considerably clearer than United States v. Garay,
938 F.3d 1108 (9th Cir. 2019), which held that the failure to
complete the form under the circumstances was not a
material deviation from policy and did not make the search
invalid. The panel wrote that by creating a list of recovered
items and incorporating it into a CHP 180 form, an officer
complied substantially with the policy’s direction to
inventory the property in an impounded vehicle. The panel
also held that, given the early stage at which an officer
decided to impound the vehicle, it is a reasonable view of the
evidence that the officer’s intent at the time the vehicle was
impounded was administrative rather than investigatory.

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
              UNITED STATES V. MAGDIRILA                   3


    The panel vacated three conditions of supervised release
as to which the government conceded error or made no
argument, and remanded for revision. The panel vacated a
disputed notification-of-risk condition, and remanded for the
district court to craft a condition that accords with the
defendant’s criminal history.

    Concurring, Judge Berzon wrote separately to note that
she believes Garay was wrongly decided.


                        COUNSEL

Joshua D. Weiss (argued) and Sonam Henderson, Deputy
Federal Public Defenders; Amy M. Karlin, Interim Federal
Public Defender; Office of the Federal Public Defender, Los
Angeles, California; for Defendant-Appellant.

Roger A. Hsiech (argued), Assistant United States Attorney;
L. Ashley Aull, Chief, Criminal Appeals Section; Nicola T.
Hanna, United States Attorney; United States Attorney’s
Office, Los Angeles, California; for Plaintiff-Appellee.


                        OPINION

R. NELSON, Circuit Judge:

    During a search of a vehicle John Magdirila was driving,
officers found methamphetamine, a firearm, and counterfeit
currency. The district court denied Magdirila’s motion to
suppress this contraband, holding it was discovered during a
valid inventory search. Magdirila then entered a conditional
plea agreement and was sentenced to 41 months in prison.
4              UNITED STATES V. MAGDIRILA

The district court also imposed General, Specific, and
Standard Conditions of Supervised Release. We affirm the
denial of Magdirila’s motion to suppress. We vacate,
however, the challenged Conditions and remand for the
district court to revise them.

                               I

     Officers Mark Robinson and Tyler Villicana were on
patrol in Inglewood, California, as part of a tactical response
to a surge in gang activity in the area. At nearly 11:00 pm,
Robinson observed a black Infiniti stopped in an alley with
its engine running and “lights . . . illuminated as if the driver
had the foot on the brake.” The vehicle was parked in
violation of Inglewood Municipal Code 3-50 and lacked
permanent—as opposed to dealer-issued—license plates, in
violation of California Vehicle Code § 5200(a).

    Villicana activated the cruiser’s lights and siren, causing
the vehicle’s passenger, D.R., to “spontaneously” exit the
vehicle. Upon questioning by Villicana, D.R. admitted he
was on parole and was detained pending further
investigation. After detaining D.R., Villicana ran a warrants
inquiry for D.R. The inquiry confirmed that D.R. was on
parole and subject to a search condition.

    As Villicana questioned D.R., Robinson approached the
Infiniti and observed Magdirila sitting in the driver’s seat
with the engine on and his foot on the break. Magdirila
admitted he did not have a driver’s license and stated the
vehicle belonged to a friend. Robinson, pursuant to the
Inglewood Police Department Vehicle Towing and Release
Policy (the “Policy”), decided “from the moment that . . .
[Magdirila] admitted he did not have a driver’s license” to
impound the vehicle.
               UNITED STATES V. MAGDIRILA                    5

   Robinson then searched the glove compartment of the
vehicle and found a bag of what he believed was crystal
methamphetamine.       When asked who the crystal
methamphetamine belonged to, Magdirila claimed
ownership. Robinson arrested Magdirila for possession of
methamphetamine in violation of California Health and
Safety Code § 11377(a), and searched the rest of the vehicle.

    During the inventory search, Robinson found a lockbox
in the back seat of the vehicle resting on top of a backpack.
Magdirila claimed ownership of the lockbox and backpack.
Inside the lockbox, Robinson found a loaded semi-automatic
pistol, an air pistol, a USB drive, and Magdirila’s EBT card.

    Robinson’s decision to impound the vehicle triggered a
duty under the Policy to take an “accurate” inventory of the
vehicle’s contents on a CHP 180 form. The Policy requires
officers to list “[a]ll property in a stored or impounded
vehicle” and to “be as thorough and accurate as practical in
preparing an itemized inventory.” In the “REMARKS”
section of the CHP 180 form, Villicana cross-referenced the
police report and noted that the vehicle contained an
“IPHONE/APPLE WATCH.”                In the police report,
Robinson listed items contained in the car including, but not
limited to, a black backpack, air pistol, ink cartridges, USB
flash drive, and an American Express credit card.

    Magdirila moved to suppress “all evidence and
statements obtained as a result of his unlawful arrest, search,
and questioning.” The Government opposed suppression,
relying primarily on declarations from Robinson and
Villicana, along with the CHP 180 form and police report.
During a hearing on the motion to suppress, the district court
heard testimony from Robinson, Villicana, and Magdirila.
6             UNITED STATES V. MAGDIRILA

    After the hearing, the district court denied Magdirila’s
motion to suppress the contraband and made the following
factual findings:

       1. “the Infiniti was illegally parked in an
          alleyway and . . . was without proper
          license plates”;

       2. “the officers impounded the Infiniti
          because the owner of the car was not
          present, the [defendant] was unlicensed
          and did not have any evidence that he was
          authorized to drive the car, and the car
          was parked in and blocking an alley”;

       3. “Robinson impounded the Infiniti
          pursuant to the [Inglewood Police
          Department’s] Vehicle Towing and
          Release Policy . . . [at] the moment that
          defendant admitted that he did not have a
          driver’s license”; and

       4. “[t]he record demonstrates that Robinson
          conducted an inventory search of the
          Infiniti pursuant to the Vehicle Inventory
          requirements set forth in section 510.4 of
          Towing Policy, and that Villicana
          completed CHP Form 180 pursuant to the
          Vehicle Storage Report requirements set
          forth in section 510.2.1.”

United States v. Magdirila, No. 2:17-CR-00729-CAS-1,
2018 WL 1472498, at *4, *6, *7 (C.D. Cal. Mar. 22, 2018)
                  UNITED STATES V. MAGDIRILA                             7

(internal quotation marks omitted). 1 In light of those
findings, the district court held that the contraband was the
fruit of a properly conducted inventory search. Magdirila
subsequently entered a conditional guilty plea, and the
district court sentenced him to 41 months in prison.

    The district court also imposed Standard and Specific
Conditions of Supervised Release. Additionally, the district
court incorporated and imposed conditions of supervised
release from United States District Court for the Central
District of California General Order 05-02—which we refer
to as General Order Conditions. The five General Order,
Specific, and Standard Conditions relevant to this appeal are:

         1. General Order Condition 5: “The
            defendant shall support his or her
            dependents and meet other family
            responsibilities,” General Order 05-02,
            United States District Court for the
            Central District of California (Jan. 18,
            2005), https://www.cacd.uscourts.gov/sit
            es/default/files/general-orders/GO-05-
            02.pdf (last visited June 3, 2020);

         2. General Order Condition 6: “The
            defendant shall work regularly at a lawful
            occupation unless excused by the
            probation officer for schooling, training,
            or other acceptable reasons,” id.;


    1
      The district court did not resolve the parties’ dispute as to whether
Magdirila had Fourth Amendment standing to challenge the search of his
friend’s vehicle. The Government does not raise this argument on
appeal. We do not decide, therefore, whether Magdirila has standing and
instead assume that he does.
8             UNITED STATES V. MAGDIRILA

       3. General Order Condition 14: “As
          directed by the probation officer, the
          defendant shall notify third parties of
          risks that may be occasioned by the
          defendant’s criminal record or personal
          history or characteristics, and shall permit
          the probation officer to make such
          notifications and to confirm the
          defendant’s compliance with such
          notification requirement,” id.;

       4. Specific Condition 2: “As directed by the
          probation officer, the defendant shall
          notify specific persons and organizations
          of specific risks and shall permit the
          probation officer to confirm the
          defendant’s compliance with such
          requirement and to make such
          notifications”;

       5. Standard Condition 14: “As directed by
          the probation officer, the defendant must
          notify specific persons and organizations
          of specific risks posed by the defendant to
          those persons and organizations and must
          permit the probation officer to confirm
          the defendant’s compliance with such
          requirement and to make such
          notifications.”

    Magdirila timely appealed the denial of his motion to
suppress and the imposition of these five conditions. We
have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
               UNITED STATES V. MAGDIRILA                     9

                              II

    The denial of Magdirila’s motion to suppress is reviewed
de novo. See United States v. Tan Duc Nguyen, 673 F.3d
1259, 1263 (9th Cir. 2012). The district court’s underlying
factual findings are reviewed for clear error. See United
States v. Barnes, 895 F.3d 1194, 1199 (9th Cir. 2018).
Where the district court does not make a finding on a precise
factual issue relevant to the Fourth Amendment analysis, we
“uphold a trial court’s denial of a motion to suppress if there
was a reasonable view to support it.” United States v.
Gooch, 506 F.3d 1156, 1158 (9th Cir. 2007).

                              III

    We address whether Magdirila has waived certain
arguments challenging the district court’s denial of his
motion to suppress and then turn to whether the district court
erred in its denial.

                               A

     We begin with the Government’s waiver claims. Except
for good cause, a motion to suppress must “be raised by
pretrial motion.” Federal Rule of Criminal Procedure
12(b)(3)(C); see also United States v. Guerrero, 921 F.3d
895, 897–98 (9th Cir. 2019). Defendants ordinarily may not
raise new grounds for suppression on appeal. See United
States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004). That
is, a defendant may not (1) assert facts contradicting the facts
he or she asserted before the district court, id.; (2) rely on
facts that were not raised before or relied upon by the district
court, Guerrero, 921 F.3d at 898; or (3) make a new legal
argument in support of suppression, unless the issue does not
affect or rely on the factual record developed by the parties,
see United States v. Hawkins, 249 F.3d 867, 872 (9th Cir.
10            UNITED STATES V. MAGDIRILA

2001), overruled on other grounds by United States v. Perez,
116 F.3d 840 (9th Cir. 1997) (en banc). An argument is not
waived if “the district court nevertheless addressed the
merits of the issue not explicitly raised by the party.”
Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n.8
(9th Cir. 2010) (internal quotation marks and citation
omitted).

    Here, Magdirila preserved both of his central arguments
on appeal—that the officers “had an improper subjective
motivation that rendered the search pretextual” and that “the
inventory search was invalid because officers conducted
their search in a manner inconsistent with the Policy.”

    With respect to his broad pretext argument, Magdirila
claimed the inventory search was a “post-hoc justification”
for an illegal search at inception. During the suppression
hearing, Magdirila questioned Robinson about his state of
mind during the time of the search, apparently to
demonstrate pretext. Magdirila relies on no new facts or
legal theories. Rather, he continues to assert that the
inventory search was pretext for an illegal investigatory
search. We conclude this argument was preserved.

     Magdirila also preserved his narrower argument that the
officers conducted their search inconsistent with the Policy,
as a component of his pretext argument. Although Magdirila
did not specifically challenge the officers’ compliance with
the Policy, the Government submitted a copy of the Policy
and the CHP 180 form, as part of the suppression hearing.
The district court, in turn, found that the officers properly
filled out the CHP 180 form. That finding, in turn,
undergirded the district court’s holding that the officers
performed a valid inventory search. Any argument
regarding the officers’ failure to comply with the Policy was
therefore preserved.
               UNITED STATES V. MAGDIRILA                  11

                              B

    We next address whether failure to completely fill out
the CHP 180 form rendered the search invalid and, relatedly,
whether any failure combined with other indicia of pretext
rendered the search invalid. Inventory searches that
materially deviate from department policy can be invalid.
United States v. Garay, 938 F.3d 1108, 1111 (9th Cir. 2019).
However, minor noncompliance with department policies
does not invalidate an otherwise lawful inventory search. Id.
at 1112.

     Additionally, a search conducted pursuant to a regulatory
scheme is invalid if the officer’s sole purpose in performing
it is investigatory. United States v. Orozco, 858 F.3d 1204,
1210 (9th Cir. 2017). If, however, the officer’s purpose is
administrative, the inventory search is valid. United States
v. Johnson, 889 F.3d 1120, 1126 (9th Cir. 2018).
Importantly, “the mere presence of a criminal investigatory
motive or a dual motive—one valid, and one
impermissible—does not render an administrative stop or
search invalid; instead, . . . [the Court] ask[s] whether the
challenged search or seizure would . . . have occurred in the
absence of an impermissible reason.” Id. (internal quotation
marks and citation omitted).

    The officers’ failure to precisely follow Section 510.4 of
the Policy, in and of itself, does not make the inventory
search invalid. In Garay, sheriffs performed an inventory
search of a vehicle after engaging in a high-speed chase but
failed to fill out the inventory search form required by the
sheriff’s department policy.         938 F.3d at 1110–11.
Nevertheless, we held that the failure to complete the form
under the circumstances was not a “material deviation from
policy” and did not make the search invalid. Id. at 1112.
12               UNITED STATES V. MAGDIRILA

    This case is considerably clearer than Garay. Although
the officers here did not include “all property” on the CHP
180 form as required by Section 510.2.1, they did fill out an
inventory form that included some of the property, including
an iPhone and an Apple watch. Moreover, the items
contained in the vehicle, but unlisted on the CHP 180 form—
including a backpack, Magdirila’s welfare benefits card, the
Sentry lockbox, an air gun, a flash drive, and ink jet toner
cartridges,—were listed on the police report, which
Villicana cross-referenced on the CHP 180 form. By
creating a list of recovered items and incorporating it into the
CHP 180 form, Villicana complied substantially with the
Policy’s direction to inventory the property in an impounded
vehicle. His failure to precisely comply with the Policy did
not render the search invalid.

    Nor do we agree with Magdirila that there is not a
“reasonable view to support” the trial court’s implied
conclusion that Robinson’s purpose in conducting the search
was administrative rather than investigatory. Gooch,
506 F.3d at 1158. Department Policy required the officers
to impound the vehicle upon determining that Magdirila was
unlicensed. Robinson established that fact during his initial
questioning of Magdirila and decided to impound the vehicle
before discovering methamphetamine in the glove
compartment. Given the early stage at which Robinson
decided to impound the vehicle, it is a “reasonable view” of
the evidence that Robinson’s intent at the time the vehicle
was impounded was administrative rather than investigatory.
Id. at 1158. 2



     2
      Because we hold the inventory search was proper, we do not
address the Government’s alternative arguments that (1) the police were
                 UNITED STATES V. MAGDIRILA                         13

                                  IV

    Finally, we turn to the conditions of supervised release
imposed by the district court. The Government concedes
that General Order Condition 5, General Order Condition 6,
and Specific Condition 2 must be struck or, in the case of
General Order Condition 6, revised to avoid being struck for
vagueness. The Government also makes no argument about
General Order Condition 14, which we struck down in
United States v. Evans, 883 F.3d 1154, 1164–65 (9th Cir.
2018). Accordingly, we vacate these conditions and remand
for the district court to revise them.

   The sole disputed condition is Standard Condition 14,
which provides:

        As directed by the probation officer, the
        defendant must notify specific persons and
        organizations of specific risks posed by the
        defendant to those persons and organizations
        and must permit the probation officer to
        confirm the defendant’s compliance with
        such requirement and to make such
        notifications.

Standard Condition 14 is nearly identical to General Order
Condition 14, which we struck down in Evans. In Evans, we
held General Order Condition 14 unconstitutional, in part
because it failed to answer the question of what conduct the
defendant needed to warn the public about. 883 F.3d
at 1163. The revised language in Standard Condition 14


entitled to search the glove compartment because of D.R.’s parole search
condition, or (2) the evidence would have been inevitably discovered.
14             UNITED STATES V. MAGDIRILA

does not cure this deficiency. We therefore vacate and
remand Standard Condition 14.

    We leave it for the district court on remand to craft a
supervised release condition that accords with Magdirila’s
criminal history. See United States v. Ped, 943 F.3d 427,
434 (9th Cir. 2019) (“The district court ‘is better suited to
the job of crafting adequate but not overly restrictive
conditions.’” (quoting United States v. Sales, 476 F.3d 732,
738 (9th Cir. 2007))).

    On remand, the district court may wish to consider the
language in United States Sentencing Guideline Manual
§ 5D1.3(c)(12), which suggests that a defendant’s
notification obligations should be limited to specific persons
regarding specific risks posed by the defendant’s criminal
record. Magdirila argued on appeal that if such language
was incorporated into Standard Condition 14, the revised
condition would not be unconstitutionally vague.

  AFFIRMED IN PART and REVERSED AND
REMANDED IN PART.



BERZON, Circuit Judge, concurring:

    I concur in the opinion in full. I write separately to note
that I believe United States v. Garay, 938 F.3d 1108 (9th Cir.
2019), was wrongly decided.

   In Garay, sheriffs performed an inventory search of a
vehicle but did not create any list of the items found inside
the car, i.e., an inventory, in violation of both their
department’s inventory policy and the pivotal requirement
of the inventory search exception to the usual Fourth
               UNITED STATES V. MAGDIRILA                   15

Amendment probable cause requirement. 938 F.3d at 1111.
Garay held that the lack of any inventory is an insufficient
reason to invalidate the inventory search. Id. at 1112. That
conclusion is, in my view, just wrong.

     The inventory search exception “serve[s] to protect an
owner’s property while it is in the custody of the police, to
insure against claims of lost, stolen, or vandalized property,
and to guard the police from danger.” Florida v. Wells,
495 U.S. 1, 4 (1990) (quoting Colorado v. Bertine, 479 U.S.
367, 372 (1987)). Failure to produce any written inventory
following a supposed inventory search is not, as held by
Garay, 938 F.3d at 1112, a trivial administrative error in
adhering to policy. Where no inventory at all is produced,
the property protection, insurance, and danger reasons for
the exception all go up in smoke. If there is no written record
of the objects found in the vehicle, then there is no way to
tell whether objects are taken once in police custody, no
protection against false claims that property has disappeared,
and no way to segregate dangerous objects while recording
their existence should they need to be returned.

    Moreover, that an officer purports to conduct an
inventory search but fails to produce an inventory strongly
suggests the investigatory nature of the search. Law
enforcement may not use an inventory search as a “ruse for
a general rummaging.” Wells, 495 U.S. at 4. Treating items
seized from a vehicle “specifically as evidence of a crime
[and] not as property held for safekeeping” invalidates an
inventory search. United States v. Johnson, 889 F.3d 1120,
1127–28 (9th Cir. 2018). An inventory search that does not
result in a written inventory goes a long way toward
indicating that the officers did not treat recovered items as
“property held for safekeeping,” but rather as evidence of
criminal activity.
16            UNITED STATES V. MAGDIRILA

    Wells held that “[t]he policy or practice governing
inventory searches should be designed to produce an
inventory.” 495 U.S. at 4. Given the Supreme Court’s
emphasis that an inventory search should aid property
owners and law enforcement in tracking the category and
condition of items seized from vehicles, and should not be
used to disguise investigative law enforcement activity, the
exception cannot apply where there is no written inventory
at all.

    That was not the case here, however. The error here
really was a technical one—only some of the items
recovered were recorded on the inventory form, but the rest
appeared on the cross-referenced police report. I therefore
concur in the opinion, but recommend reconsidering Garay
en banc should the opportunity arise.
