                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 15 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50078

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00531-CAS-1

  v.
                                                 MEMORANDUM*
JOSE LUIS MEDEL,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                          Submitted December 10, 2014**
                              Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.




        *
             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).

                                          1
        Medel appeals from his convictions for possession of methamphetamine

with intent to distribute, and possession of a firearm in furtherance of a drug

trafficking crime. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

1.      Medel argues the warrant authorizing the police to search his residence was

not supported by probable cause because the burglary occurred in January and the

warrant was not obtained until April.

        “Probable cause exists when there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” United States v. Needham,

718 F.3d 1190, 1194 (9th Cir. 2013) (quoting United States v. Grubbs, 547 U.S.

90, 95 (2006)) (internal quotation marks omitted). Whether evidence has become

stale, and thus no longer establishes a “fair probability” that the contraband or

evidence remains present at a particular place, “must be evaluated in light of the

particular facts of the case and the nature of the criminal activity and property

sought.” United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007) (quoting

United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991)). “The information

offered in support of the application for a search warrant is not stale if there is

sufficient basis to believe, based on a continuing pattern or other good reasons, that



        1
              The parties are familiar with the facts so we will not recount them
here.

                                           2
the items to be seized are still on the premises.” United States v. Lacy, 119 F.3d

742, 745–46 (9th Cir. 1997).

       In this case, the magistrate judge had a sufficient basis to believe the stolen

items were still at the residence. The total delay between when the police last

verified the Wii was being used and the date they applied for the search warrant

was approximately two months. A Wii is not a perishable or consumable good,

and although it is small and easily sold, the fact that the Wii was being used

supports an inference that whoever had the Wii was interested in using it rather

than selling or trading it.

2.     Medel also argues the search should have stopped as soon as the Wii was

recovered and that by continuing to search, the officers exceeded the warrant’s

permissible scope. But the police had a warrant authorizing them to search for four

stolen items, two of which they never located. Medel argues the search must have

been a pretext to look for drugs because ten members of the Ventura Police

Department participated in executing the search warrant. But a police officer

testified that they were there to look for the stolen electronics, not drugs. And even

if the police suspected the house was a drug house, it would not diminish the

probable cause to believe the stolen electronics were present. Evidence found

during a lawful search is admissible even if it was not what police were searching

                                          3
for, and even if the police suspected they might find the evidence. See United

States v. Ewain, 88 F.3d 689, 693 (9th Cir. 1996) (“Because the officers looked

only where they could properly look under the terms of a particularized and proper

search warrant, the householder's privacy was no more impaired than it would have

been had they expected to find only the things specified in the warrant.”). Here,

police searched in places they could reasonably expect to find the stolen

electronics. Medel does not make a plausible argument that the police exceeded

the scope of the warrant.

3.    Medel argues the evidence was insufficient to support his conviction for

possession of a firearm in furtherance of a drug trafficking crime. A conviction for

possession of a firearm in furtherance of drug trafficking requires that “the facts

‘reveal a nexus between the guns discovered and the underlying offense.’ ” United

States v. Norwood, 603 F.3d 1063, 1071–72 (9th Cir. 2010) (quoting United States

v. Krouse, 370 F.3d 965, 968 (2004)).

      The facts of this case are almost indistinguishable from Norwood, where

another defendant was arrested on a bed, in a room with guns and drugs within his

reach. Id. at 1066-67. We affirmed this evidence as sufficient to establish a nexus

for purposes of showing the firearm was used in furtherance of drug trafficking.

Id. at 1072. We reach the same conclusion here.

                                          4
AFFIRMED.




            5
