                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 14 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50648

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00078-FMC-1

  v.
                                                 MEMORANDUM *
JEFFREY MICHAEL WILSON, AKA
Jeff Wilson,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                 Florence-Marie Cooper, District Judge, Presiding

                           Submitted December 9, 2010 **
                               Pasadena, California

Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
      Jeffrey Michael Wilson (“Wilson”) entered a conditional guilty plea to being

a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §

922(g)(1). On appeal, Wilson contends that the district court abused its discretion

in denying his request for an evidentiary hearing on his motion to suppress

evidence.

      “We review for an abuse of discretion a [district] court’s decision whether to

conduct an evidentiary hearing on a motion to suppress.” United States v. Quoc

Viet Hoang, 486 F.3d 1156, 1163 (9th Cir. 2007) (quoting United States v. Howell,

231 F.3d 615, 620 (9th Cir. 2000)).

      We conclude that the district court did not abuse its discretion in refusing to

hold an evidentiary hearing because Wilson failed to identify any “significant

disputed factual issue” in his motion to suppress. See Howell, 231 F.3d at 621.

Even though there was a factual dispute regarding the scope of Officer Vetere’s

patdown, the district court correctly concluded that this factual dispute was

immaterial.

      Assuming that Officer Vetere’s patdown of Wilson exceeded its permissible

scope, Officer Vetere’s subsequent act of looking in the rear passenger window

was not “fruit of the poisonous tree” because there was sufficient evidence to

justify the search of Wilson’s truck independent of any initial illegality. See Wong


                                          2
Sun v. United States, 371 U.S. 471, 487-88 (1963); see also United States v. Miller,

812 F.2d 1206, 1208-09 (9th Cir. 1987).

      Officer Vetere’s search of Wilson’s truck was conducted based on lawfully

obtained probable cause to believe that the truck contained evidence of a crime. Id.

at 1208 (“Historically, individuals always [have] been on notice that movable

vessels may be stopped and searched on facts giving rise to probable cause that the

vehicle contains contraband, without the protection afforded by a magistrate’s prior

evaluation of those facts.”). Officer Vetere searched Wilson’s car because (1)

Wilson appeared “agitated and nervous”; (2) Wilson produced no identification;

(3) Officer Vetere looked through the rear passenger’s side window of Wilson’s

truck and saw in plain view the butt end of what he believed to be a rifle, partially

concealed by a T-shirt and towel; and (4) when asked, Wilson admitted to having a

gun in his truck. None of these facts were discovered through a violation of

Wilson’s constitutional rights. Together, these facts were sufficient to establish

probable cause to believe that Wilson’s truck contained evidence that Wilson was

violating Cal. Penal Code § 12025, which prohibits concealing a firearm within a

vehicle, and Cal. Penal Code § 12031, which prohibits “carrying a loaded firearm .

. . in a vehicle[.]” Officer Vetere thus had probable cause to search Wilson’s truck

under the automobile exception.


                                           3
      Therefore, we affirm the district court’s denial of an evidentiary hearing.

The district court did not abuse its discretion because Wilson failed to identify any

“significant disputed factual issue” in his motion to suppress.




AFFIRMED.




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