                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               MAY 1 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-10473

              Plaintiff-Appellee,                D.C. No.
                                                 4:16-cr-00516-HSG-1
 v.

ANDRE MARTEL WINN,                               MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                     for the Northern District of California
                 Haywood S. Gilliam, Jr., District Judge, Presiding

                            Submitted April 17, 2020**
                             San Francisco, California

Before: BERZON and IKUTA, Circuit Judges, and LEMELLE,*** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The case has been submitted on the briefs as of April 17, 2020,
pursuant to FRAP 34(a).
      ***
             The Honorable Ivan L.R. Lemelle, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
      Andre Winn appeals the district court’s denial of his motion to suppress and

his conviction for possessing a firearm as a felon under 18 U.S.C. § 922(g). We

have jurisdiction under 28 U.S.C. § 1291.

      The district court did not err in upholding the federal search of Winn’s cell

phone pursuant to a search warrant based on evidence that guns purchased by a

suspected Nevada gun dealer had been found in Winn’s residence. Winn argues

that the federal search warrant was invalid both because it was based on evidence

obtained by means of an invalid search of his apartment and because the federal

officers relied on the prior invalid download of information from Winn’s phone by

the San Leandro Police Department (SLPD). We disagree.

      First, the SLPD’s initial search of Winn’s apartment was conducted pursuant

to a valid search warrant based on probable cause that evidence relating to a

shooting for which James Williams was the primary suspect would be found in

Winn’s apartment. See United States v. Crews, 502 F.3d 1130, 1136–37 (9th Cir.

2007). The affidavit presented to the magistrate judge established probable cause

that Williams was temporarily residing in the apartment; it recited information

from continuous GPS tracking of Williams’s cell phone that put him in the vicinity

of Winn’s apartment several days after the shooting and stated that police officers

conducting surveillance of Williams observed him entering, exiting, and reentering


                                          2
the apartment, securing the door, and exiting the apartment the following morning.

Given these observations, it was reasonable for the officers to infer that Williams

was temporarily residing at the apartment, which distinguishes this case from the

precedent on which Winn relies, where there was either no apparent connection

between the suspect and the searched premises, or the suspect engaged in only

casual daytime visits to the premises. See United States v. Grandberry, 730 F.3d

968, 976–78 (9th Cir. 2013); Greenstreet v. Cty. Of San Bernardino, 41 F.3d 1306,

1309–10 (9th Cir. 1994); United States v. Bailey, 458 F.2d 408, 412 (9th Cir.

1972).

      The dissent’s reliance on Bailey is misplaced. Bailey addressed an affidavit

disclosing that the defendant “had been seen at the house and that [a co-defendant]

was arrested there” six weeks after the crime for which evidence was sought. 458

F.2d at 412. The affidavit included “[n]o facts . . . from which it could be inferred”

that the defendant was more than a casual social guest. Id. Here, police officers’

observations led to the reasonable inference that Williams was an overnight guest

mere days after the alleged shooting, which established a significantly stronger

connection between the crime for which Williams was a suspect and Winn’s

apartment.




                                          3
      Our precedent does not require showing that a suspect permanently lives in a

home to establish probable cause that evidence of a crime will be found in that

home. See Crews, 502 F.3d at 1136–37; cf. Grandberry, 730 F.3d at 973 (holding

that a warrantless search of a house was not permitted under the parolee’s parole

search conditions, which expressly applied only to the parolee’s permanent

residence). Based on the police officers’ training and experience, Williams’s use

of the premises less than a week after the shooting established probable cause that

evidence related to the shooting incident would be found at the premises. See

United States v. Garay, 938 F.3d 1108, 1113 (9th Cir. 2019), cert. denied, 140 S.

Ct. 976 (2020); Crews, 502 F.3d at 1136–37.

      Moreover, the warrant did not lack sufficient particularity given that it

sufficiently described the items to be seized, including cell phones, and there was

probable cause that the cell phones would contain evidence relating to the shooting

incident. See Garay, 938 F.3d at 1113.

      The affidavit’s omission of information that the apartment belonged to

Winn, and that Williams was Winn’s cousin, did not violate Franks v. Delaware,

438 U.S. 154 (1978). Williams’s status as an overnight guest in the apartment

rather than the apartment’s primary resident was not material to the magistrate

judge’s probable cause finding. See id. at 155–56. Moreover, the district court’s


                                          4
determination that the police were not deliberately or recklessly misleading in

omitting this information was not clearly erroneous. Therefore, the district court

did not err in declining to hold a hearing as to whether the search warrant was

supported by probable cause if the omitted evidence had been included.

      Second, the seizure of Winn’s cell phone from his person during the SLPD

officers’ initial search does not require exclusion of evidence obtained from the

cell phone pursuant to the federal officers’ warrant. The SLPD would have

inevitably seized Winn’s cell phone, see Nix v. Williams, 467 U.S. 431, 444 (1984),

because after discovering four firearms, multiple high-capacity firearm magazines,

several rounds of various types of ammunition, and several baggies of cocaine in

his apartment, the police would have arrested Winn and searched him incident to

arrest, see United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006). And the

SLPD would have been entitled to secure the phone “to prevent destruction of

evidence while seeking a warrant.” Riley v. California, 573 U.S. 373, 388 (2014).

      Although the SLPD subsequently downloaded information from Winn’s

phone without a warrant, even assuming this search was unlawful, the federal

officers’ affidavit contained no “tainted evidence” derived from that search.

United States v. Nora, 765 F.3d 1049, 1058 (9th Cir. 2014). And the record

supports the district court’s finding that the federal officers would have sought the


                                          5
warrant regardless of the SLPD’s search based on the gun evidence. See Murray v.

United States, 487 U.S. 533, 542 & n.3 (1988). Therefore, the federal warrant was

a “genuinely independent source” of the evidence from Winn’s cell phone. Id. at

542. We conclude that the district court did not err in denying Winn’s motion to

suppress.

      We also reject Winn’s argument that there was insufficient evidence

supporting his conviction under 18 U.S.C. § 922(g) because the government did

not present evidence that Winn knew he had been convicted of a crime punishable

by a term of imprisonment exceeding one year at the time he possessed the firearm.

See Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019). Any error in not

adducing evidence on this element of the offense “did not affect [Winn]’s

substantial rights” because Winn’s stipulation to his prior convictions “proved

beyond a reasonable doubt that [he] had the knowledge required by Rehaif.”

United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019).

      AFFIRMED.




                                          6
                                                                     FILED
United States v. Winn, No. 18-10473                                   MAY 1 2020

BERZON, Circuit Judge, dissenting:
                                                                 MOLLY C. DWYER, CLERK
                                                                   U.S. COURT OF APPEALS



      I respectfully dissent. Contrary to the majority’s holding, the warrant

authorizing the SLPD’s initial search of Winn’s apartment was not

supported by probable cause.

      The affidavit underlying the warrant alleged that (1) GPS monitoring

located Williams’s cell phone in the vicinity of the apartment, without

saying how many times that occurred, and (2) SLPD detectives observed

Williams at the apartment twice, once around 9:00 p.m. and once the

following morning, without saying the detectives had continued their

surveillance overnight. Although the affidavit mentioned that Williams

came out of the apartment, looked around, and went back in, that detail

adds nothing to support the supposition that he lived there. Under our

precedent, the information contained in the warrant affidavit was

insufficient to establish that Williams had a sufficient connection to the

apartment to provide probable cause for a broad search of the home to find

items connected to Williams’s recent crime.

      In United States v. Bailey, 458 F.2d 408 (9th Cir. 1972), for example, two

suspects in a bank robbery were seen separately at the same house on at
                                       1
least four occasions in the weeks following the robbery. We held that

probable cause to search the house for items connected to the robbery was

lacking, because there was insufficient evidence to permit an inference that

the suspects were “other than casual social guests” there. Id. at 412. The

nexus between Williams and Winn’s apartment was weaker, or at least no

stronger, than the nexus in Bailey.

      Moreover, the reasons given in the affidavit for expecting to find

evidence of Williams’s crime in Winn’s apartment were tied repeatedly to

the affidavit’s assertions that the apartment was Williams’s “residence,”

and that gang members often keep evidence of gang-related crimes in their

residence. In parolee search cases, we have required much more evidence

than was given here to establish that a dwelling place is a parolee’s

residence. “Even when there is evidence that the parolee has ‘spent the

night there occasionally,’ we have concluded that such evidence is

‘insufficient’ to establish residence.” United States v. Grandberry, 730 F.3d

968, 978 (9th Cir. 2013) (quoting United States v. Howard, 447 F.3d 1257, 1262

(9th Cir. 2006)).

      The SLPD’s unlawful search of Winn’s apartment tainted the federal

agents’ later search of Winn’s cell phone and apartment. Absent that
                                       2
original search, the state officers would not have had Winn’s cell phone

and been able to hand it over to the federal agents. And the good-faith

exception does not apply because the federal government has not

established that the SLPD officers conducted the initial search in good

faith. See United States v. Artis, 919 F.3d 1123, 1133 (9th Cir. 2019). The SLPD

officers were less than forthcoming in informing the magistrate judge that

the basis for their belief that Williams resided in the apartment to be

searched was tenuous, and the affidavit’s shortcomings in establishing a

connection between Williams and the apartment were readily apparent. See

Greenstreet v. Cty. of San Bernardino, 41 F.3d 1306, 1310 (9th Cir. 1994).

      As I would hold that the district court should have granted Winn’s

motion to suppress the evidence from the federal searches, I would reverse

the conviction, and so dissent.




                                        3
