                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 4 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50338

                Plaintiff-Appellee,             D.C. No.
                                                5:17-cr-00101-PSG-1
 v.

WASFI ADEL ABBASSI, AKA Abbassi                 MEMORANDUM*
Wasfi Adel,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted December 9, 2019
                              Pasadena, California

Before: BEA, COLLINS, and BRESS, Circuit Judges.

      Wasfi Abbassi appeals from his guilty plea to three counts related to drug

trafficking, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C.

§ 924(c)(1)(A)(i). He appeals the denial of his motion to suppress evidence and

challenges certain conditions of supervised release included in his sentence. For

the following reasons, we affirm the conviction and the denial of the motion to


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
suppress evidence, but we vacate the sentence as it relates to special condition of

supervised release 2 and remand to the district court with instructions to modify

that condition of supervised release.

      1.     Abbassi was not unreasonably detained by Officer Rollings in

violation of the Fourth Amendment, and the circumstances of the detention did not

amount to an arrest. Officers approaching a vehicle to arrest one or more occupants

inside the car may briefly detain other, unknown occupants and may conduct a

frisk of such persons. United States v. Vaughan, 718 F.2d 332, 335 (9th Cir. 1983).

This sort of brief “detention does not automatically become an arrest when officers

draw their guns [or] use handcuffs.” Gallegos v. City of Los Angeles, 308 F.3d 987,

991 (9th Cir. 2002) (citations omitted). Under the circumstances here, the officers’

choices to draw their weapons while executing the felony arrest warrants for

Justice, who was seated in the passenger seat of Abbassi’s car, and to use

handcuffs on Abbassi while conducting a frisk for weapons immediately after,

were “reasonable response[s] to legitimate safety concerns on the part of the

investigating officers” that did not transform the detention into an arrest.

Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996) (emphasis omitted).

      2.     Officer Rollings was not required to read Abbassi his Miranda rights

before asking him if he “had anything illegal on his person,” as he began the frisk

for weapons. When officers have the authority necessary to conduct a brief stop,


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they may question the detained individual about matters “beyond the initial

purpose of the stop,” even without particularized suspicion regarding the subject

matter of the questioning, so long as the questioning “does not prolong the stop.”

United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007). The officer’s

question, whether Abbassi had “anything illegal on his person,” and Abbassi’s

response, a “little bit of coke,” happened within the first fifteen seconds that

Officer Rollings had Abbassi out of the car and in handcuffs and before the officer

completed the frisk. This question did not prolong the stop.

      Further, when Officer Rollings asked Abbassi whether he had anything

illegal on his person, Abbassi was not “in custody” such that Miranda warnings

were required. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam).

Abbassi had been detained only briefly by Officer Rollings in the course of the

execution of the warrants to arrest Justice, and, despite the officer’s use of

handcuffs, a Miranda warning was not required when, as here, the defendant was

not placed in custody. United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir.

1982) (“Handcuffing a suspect does not necessarily dictate a finding of

custody. . . . Strong but reasonable measures to insure the safety of the officer or

the public can be taken without necessarily compelling a finding that the suspect

was in custody.”) (quotations omitted).

      3.     The warrant to search Abbassi’s residence was valid and based on


                                           3
probable cause. Whether the warrant correctly identified possession of marijuana

for the purpose of sales as a misdemeanor under California law is irrelevant. Under

the Fourth Amendment, a warrant may be issued to search a location where “there

is a fair probability that contraband or evidence of a crime will be found . . . .”

Illinois v. Gates, 462 U.S. 213, 238 (1983) (emphasis added).

      The Superior Court judge issuing the warrant had “a substantial basis for

determining the existence of probable cause.” Id. at 239. Abbassi’s only preserved

arguments that the warrant was not supported by probable cause are (1) that the

warrant application falsely described the search at the Crescent Avenue residence

in 2014 as uncovering marijuana and more than $100,000 cash, and (2) that

information about his three prior arrests between 2008-2014 was irrelevant because

the arrests were “stale.” He has not shown good cause for why the additional

arguments he now raises should be considered for the first time on appeal. See Fed.

R. Crim. P. 12(c)(3); United States v. Guerrero, 921 F.3d 895, 898 (9th Cir. 2019)

(per curiam).

      There is no evidence that Detective Hernandez “intentionally or recklessly

made false or misleading statements” in the affidavit about the discovery of

marijuana and $100,000 cash at the Crescent Avenue residence in 2014. See

United States v. Martinez-Garcia, 397 F.3d 1205, 1215 (9th Cir. 2005).

Additionally, any inaccuracy was not material. See id. Even excising the statement


                                           4
that in 2014 marijuana and $100,000 cash had been found at the residence, the

remaining facts in the affidavit were enough to support a probable cause finding.

      Similarly, it was proper for the detective to include Abbassi’s prior arrest

information in her affidavit in support of the warrant, and it was proper for the

judge to rely upon it. See Greenstreet v. Cty. of San Bernardino, 41 F.3d 1306,

1309 (9th Cir. 1994). But even if the information about those prior arrests was

omitted from the warrant application, there still would have been probable cause to

search his home.

      4.     Special condition of supervised release 2 solves the first problem in

Abbassi’s standard condition 14 that was identified in United States v. Evans, 883

F.3d 1154, 1163–64 (9th Cir. 2018), by removing language related to Abbassi’s

personal history or characteristics. But under Evans, left unresolved is the

ambiguity whether the only “specific risks” about which the probation officer may

require Abbassi to inform “specific persons and organizations” are those that he

personally poses to those persons and organizations. United States v. Brewer, 770

F. App’x 361, 362 (9th Cir. 2019); see Evans, 883 F.3d at 1164. We are bound by

Evans, and our decision in Brewer, although unpublished, applied Evans to a

special condition worded identically to the one here. Under these circumstances,

we direct the district court to remedy the deficiency on remand. See United States

v. Ped, 943 F.3d 427, 434 (9th Cir. 2019). The district court may do so by


                                          5
modifying the condition to conform to the standard notification condition in the

Central District of California’s General Order No. 18-10 (standard condition No.

14), or by modifying the condition to conform with the Sentencing Guidelines’

current standard notification condition, U.S.S.G. § 5D1.3(c)(12).

      As to standard conditions of supervised release 5, 6, and 14, no additional

modification on remand is necessary. Special condition 1 of the written judgment

and the oral pronouncement of the sentence were explicit that those conditions do

not apply to Abbassi, and the attachment of the full list of standard conditions did

not undo that express limitation on which conditions were being incorporated from

that list. We see no conflict between the oral and written judgments, but in any

event, the “oral pronouncement controls.” United States v. LaCoste, 821 F.3d

1187, 1190 (9th Cir. 2016).

      AFFIRMED in part, VACATED in part, and REMANDED.




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