                                                                              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                           NOT FOR PUBLICATION                                 JUL 27 2011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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