                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 28 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10628

              Plaintiff - Appellee,              D.C. No. 5:10-cr-00729-EJD-1

  v.
                                                 MEMORANDUM*
STEVEN LEE VARGEM,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                     Argued and Submitted February 11, 2014
                            San Francisco, California

Before: REINHARDT and THOMAS, Circuit Judges, and SESSIONS, District
Judge.**

       Vargem appeals his conviction for possession of a machine gun, 18 U.S.C.

§§ 922(o) and 924(a)(2), and possession of an unregistered firearm, 26 U.S.C. §§

5841, 5861(d), and 5871. He contends, first, that the district court erred in denying

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
his motion to suppress and, second, that the district court erred in denying him a

Franks hearing. 438 U.S. 154 (1978).1



1.    The district court did not err in holding that the magistrate judge who issued

the search warrant had a “substantial basis to conclude that the warrant was

supported by probable cause” that evidence of a crime would be found at Vargem’s

residence. See United States v. Fernandez, 388 F.3d 1199, 1252 (9th Cir. 2004)

(internal quotation omitted). Vargem’s two arguments to the contrary fail. First, the

magistrate judge could reasonably have inferred from the warrant affidavit that

Vargem had been informed of a restraining order prohibiting him from possessing

firearms at his home or elsewhere. Officer Tuell stated in the warrant affidavit that

he had “verified with V[argem]” that Vargem was the subject of a restraining

order, and that the restraining order required him to surrender all firearms. The

remaining facts in the affidavit permitted the inference that some of the many

firearms that Vargem possessed were still in his safe at home. See Cal. Fam. Code

6383(e) (2010) (“The law enforcement officer’s verbal notice of the terms of the

[restraining] order shall constitute service of the order and is sufficient notice.”);



      1
        We address Vargem’s objections to his sentence in a published opinion filed
concurrently herewith.

                                            2
Illinois v. Gates, 462 U.S. 213, 240 (1983) (holding that, in judging the facts

before him in a warrant affidavit, a magistrate may draw “the usual inferences

which reasonable men draw from evidence”) (internal quotation omitted).

      Second, Vargem’s argument that California law did not authorize the search

warrant misses the point. The question, for the purpose of the Fourth Amendment,

is whether there was probable cause to believe that Vargem was violating the law

and probable cause to believe that evidence of this violation would be found at his

home. Whether the warrant was authorized under state law regulating the issuance

of warrants is irrelevant. See California v. Greenwood, 486 U.S. 35, 43 (1988)

(“We have never intimated . . . that whether or not a search is reasonable within the

meaning of the Fourth Amendment depends on the law of the particular State in

which the search occurs.”).



2.    The district court did not err in refusing Vargem a Franks hearing as

Vargem has failed to make a “substantial preliminary showing” that any statement

in the warrant affidavit was false, let alone knowingly or recklessly so. 438 U.S. at

155–56. Vargem argues that Officer Tuell’s statement in the warrant affidavit that

the restraining order required him to “surrender all firearms” was knowingly or

recklessly false; under California law, a party once restrained must “relinquish” all

                                          3
firearms. Cal. Fam. Code § 6389 (2010). We see no material difference between

the words “relinquish” and “surrender.”

AFFIRMED.




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