                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 30 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50091

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00863-SVW-1

  v.
                                                 MEMORANDUM*
JIMMY LUONG, AKA Jimmy Loung,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted August 6, 2013
                               Pasadena, California

Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.

       Defendant Jimmy Luong (“Defendant”) was convicted of conspiracy to

manufacture 500 grams or more of a mixture or substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and

841(b)(1)(A), and possession of a firearm in furtherance of a drug trafficking



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
crime, in violation of 18 U.S.C. § 924(c)(1)(A). Defendant appeals from the

district court’s denial of his motion to suppress evidence derived from the

Government’s wiretap of his cell phone, and from the search of an automobile he

was driving. Defendant contends that: (1) the Government’s affidavit in support of

its wiretap application failed to establish the requisite “necessity”; (2) the affidavit

impermissibly relied on material misrepresentations and omissions; and (3) the

Government lacked probable cause to search Defendant’s vehicle. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     “[W]e review the issuing judge’s decision that the wiretap was

necessary for an abuse of discretion.” United States v. Blackmon, 273 F.3d 1204,

1207 (9th Cir. 2001). “Title III [of the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U.S.C. § 2518(1)(c),] prohibits electronic surveillance by the

federal government except under carefully defined circumstances.” Id. “The

statute requires that the issuing judge determine whether the wiretap application

contains facts that support a finding that ‘normal investigative procedures have

been tried and have failed or reasonably appear to be unlikely to succeed if tried or

to be too dangerous.’” Id. “Taken together, §§ 2518(1)(c) and (3)(c) require a full

and complete statement establishing necessity.” Id. The district court acted within

its discretion when it determined that the Government’s affidavit in support of its


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wiretap application established necessity for the interceptions. The affidavit very

carefully set forth each traditional investigative technique that had been employed

or considered and explained why those techniques had been, or were anticipated to

be, unsuccessful in exposing the organization as a whole.

      2.     Defendant’s argument that the Government’s affidavit impermissibly

relies on material misstatements and omissions fails as well. We “review de novo

whether a full and complete statement of the facts was submitted in compliance

with 18 U.S.C. § 2518(1)(c).” Id. The only argument that Defendant made in the

district court that arguably supports his current contention was that the

Government’s affidavit could be construed to be internally inconsistent, and thus

misleading, as to the success of utilizing confidential informants. However, under

Defendant’s theory, any inconsistency was facially apparent from the plain

language of the affidavit. Accordingly, there was no misrepresentation or

omission, let alone one that would have been material to the district court’s

decision authorizing the interceptions.

      Defendant waived all other grounds on which he purports to base this

argument because he failed to raise them below. See United States v. Murillo, 288

F.3d 1126, 1135 (9th Cir. 2002). Even absent waiver, however, each of

Defendant’s remaining arguments fail on the merits. Although Defendant has


                                           3
identified one instance of surveillance that the Government omitted from its

affidavit, he has failed to show how that omission—or any other purportedly

misrepresented or omitted fact—is legally material. See Blackmon, 273 F.3d at

1209 (citing United States v. Ippolito, 774 F.2d 1482, 1487 n.3 (9th Cir. 1985)).

      3.     Finally, the district court properly determined that officers had

probable cause to search Defendant’s car during the course of a traffic stop. “A

district court’s denial of a motion to suppress is reviewed de novo, while the

factual findings underlying the denial of the motion are reviewed for clear error.”

United States v. Gust, 405 F.3d 797, 799 (9th Cir. 2005). “Probable cause exists if,

under the totality of the circumstances, there is a fair probability that contraband or

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

899 F.2d 836, 839 (9th Cir. 1990) (citation and internal quotation marks omitted).

Police officers had probable cause to search Defendant’s car because: (1) the car

was registered to a woman who was subject to an outstanding warrant for drug-

related charges; (2) an officer observed that Defendant had tattoos associated with

gang membership; (3) Defendant admitted he was a member of a gang known to

deal drugs; and (4) the officer observed a cardboard box containing thousands of

pills he suspected to be ecstasy sitting on the floor of the passenger side of the car.

      AFFIRMED.


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