                                                                           FILED
                            NOT FOR PUBLICATION                            MAY 18 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50323

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00178-FMO-1

 v.
                                                 MEMORANDUM*
FENG XIAN, AKA Andy Feng, AKA
Andy Xian,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                   Fernando M. Olguin, District Judge, Presiding

                        Argued and Submitted May 4, 2015
                              Pasadena, California

Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.

      Feng Xian entered a conditional guilty plea for access device fraud and

possession of device-making equipment in violation of federal law. He appeals the

district court’s denial of his motion to suppress all evidence seized during two




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
warrantless searches of his residence, as well as all evidence seized pursuant to a

search warrant obtained after those searches. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      We review de novo a district court’s denial of a motion to suppress based on

the Fourth Amendment, United States v. Rodgers, 656 F.3d 1023, 1026 (9th Cir.

2011), and for clear error its factual findings, United States v. Ruiz, 428 F.3d 877,

880 (9th Cir. 2005). We conclude there was probable cause to search Xian’s room

even without the observation of the embossing machine. The other information in

the affidavit, such as Detective Earley’s observation that the credit card Xian used

at Ralph’s was “cancelled or manufactured” and of numerous credit cards on the

floor of Xian’s room, created a reasonable basis for the inference that “it would be

reasonable to seek the evidence in the place indicated in the affidavit.” United

States v. Ruiz, 758 F.3d 1144, 1148 (9th Cir. 2014) (internal quotation marks

omitted). Further, regardless of whether the affidavit supported the magistrate’s

probable cause determination, it was permissible for the police to search Xian’s car

because Detective Earley had “probable cause to believe that the vehicle

contain[ed] evidence of a crime.” See United States v. Brooks, 610 F.3d 1186,

1193 (9th Cir. 2010). Detective Earley’s police report stated that he “looked in the

car through the windows and saw a ‘Visa’ gift card on the rear seat.” Given that


                                           2
Xian had previously attempted to purchase three gift cards at Ralph’s with a

fraudulent credit card, and Detective Earley had just seen numerous credit cards on

the floor of Xian’s room, it was reasonable for Detective Earley to believe

additional evidence of credit card fraud would be found in Xian’s vehicle. As we

may affirm for any reason supported by the record, Serrano v. Francis, 345 F.3d

1071, 1076-77 (9th Cir. 2003), we hold the search constitutional under the “vehicle

exception” to the warrant requirement, see United States v. Hatley, 15 F.3d 856,

858-59 (9th Cir. 1994).

      We reject Xian’s claim that the search pursuant to the warrant was not a

“genuinely independent source” of the evidence seized because the district court

found there was enough information to support a finding of probable cause before

Detective Earley conducted the first warrantless search of Xian’s room. See

Murray v. United States, 487 U.S. 533, 542 (1988). Having just arrested Xian and

seen an array of credit cards on the floor in plain view, we are persuaded that

Detective Earley would have sought a warrant regardless of what he saw during the

subsequent illegal search, and that the magistrate would have issued the warrant,

see Serrano, 345 F.3d at 1076-77.

      AFFIRMED.




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