                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 6 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50210

                Plaintiff-Appellee,             D.C. No.
                                                5:17-cr-00104-SVW-1
 v.

JASON RAY JONES, AKA Jason Jones,               MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted July 10, 2019
                              Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and BASTIAN,** District
Judge.

      Just shy of 4:30 a.m. on May 5, 2017, San Bernardino Deputy Sheriff Kayla

Peters responded to a dispatch request and encountered Jason Jones asleep in a

vehicle outside of a Circle K convenience store. Peters ran a routine vehicle check



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
and then performed a fruitless pat-down search. Afterwards, Peters searched

Jones’s vehicle, finding a firearm, ammunition, and a small scale with a crystalline

substance. Minutes later, Sergeant Edward Bachman arrived on the scene and

recognized Jones, which led to his arrest.

      Jones was indicted for being a felon-in-possession of a firearm and

ammunition in violation of 18 U.S.C. § 922(g)(1). The district court denied his

suppression motion, finding that although Peters did not have probable cause to

search Jones’s vehicle, the police would have inevitably discovered the items.

Jones entered a conditional guilty plea and appealed the denial of suppression. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand for

additional fact-finding to determine whether Peters had probable cause to search

Jones’s vehicle.

      We review motions to suppress and whether there was probable cause to

support a warrantless search of a vehicle de novo. United States v. Andrade, 784

F.2d 1431, 1433 (9th Cir. 1986); United States v. Faagai, 869 F.3d 1145, 1149 (9th

Cir. 2017). Pursuant to the automobile exception, a warrantless search of a vehicle

is permissible “if there is probable cause to believe that the vehicle contains

evidence of a crime.” Faagai, 869 F.3d at 1150 (quoting United States v. Brooks,

610 F.3d 1186, 1193 (9th Cir. 2010)).




                                             2
      We agree with the district court’s determination that Peters did not have

probable cause to search Jones’s vehicle for evidence or contraband related to a

drug crime or robbery. The district court questioned Peters’ reliability, and

considering the totality of the circumstances along with the district court’s

findings, we conclude that there was not a “fair probability” that Jones’s vehicle

contained evidence of either of these crimes. Id. (quoting United States v.

Rodriguez, 869 F.2d 479, 484 (9th Cir. 1989)).

      For the first time, at appellate oral argument, the Government contended that

Peters had probable cause to search Jones’s vehicle for evidence of vehicle theft.

While issues not presented to the district court generally may not be raised for the

first time on appeal, “the Supreme Court has made clear [that] it is claims that are

deemed waived or forfeited, not arguments.” United States v. Guzman-Padilla,

573 F.3d 865, 877 n.1 (9th Cir. 2009) (alteration in original) (quoting United States

v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)). Because the Government

raised the claim that Peters had probable cause to search Jones’s car, albeit for

evidence of drug use or robbery, we conclude that the Government’s argument for

vehicle theft is neither waived nor forfeited.

      Although we may affirm on any basis fairly supported by the record, we

have declined to do so when it would “unfairly deprive the defendant of the

opportunity to adduce evidence.” United States v. Parr, 843 F.2d 1228, 1232 (9th


                                           3
Cir. 1988). The Government’s representations to the district court regarding which

crimes it believed supported the search—none of which included vehicle theft—

resulted in an underdeveloped record on this issue. See United States v.

Henderson, 241 F.3d 638, 649 n.1 (9th Cir. 2009) (permitting government to raise

new argument of probable cause to search the defendant’s car because he had

“fully litigated all of the facts pertaining to probable cause for his arrest and

probable cause for the search of his car”). Accordingly, we vacate the district

court’s denial of suppression and remand for additional fact-finding and

consideration of this new theory in the first instance.1

      VACATED and REMANDED.




1
 Because we remand for further fact-finding on probable cause, we need not
decide whether the district court appropriately concluded that the inevitable
discovery doctrine applied.

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