                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE NINTH CIRCUIT
                                                                             OCT 21 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.    15-30293

               Plaintiff-Appellee,               D.C. No.
                                                 2:14-cr-00100-MJP-1
          v.

SETH MORGAN,                                     MEMORANDUM*

               Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Western District of Washington
                    Marsha J. Pechman, District Judge, Presiding

                            Submitted October 6, 2016**
                               Seattle, Washington

Before: W. FLETCHER, FISHER and N.R. SMITH, Circuit Judges.

      Seth Morgan appeals his convictions for being a felon in possession of a

firearm, possession of controlled substances 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. Because the district court properly denied

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Morgan’s motion to suppress and committed no clear error when it concluded

Morgan unequivocally waived his right to counsel, we affirm.

      1. We reject Morgan’s argument that the warrantless search was unlawful

because Department of Corrections Officer Lee conducted the search as an agent of

law enforcement. Under United States v. Knights, 534 U.S. 112, 122 (2001), a

warrantless search of a probationer, “supported by reasonable suspicion and

authorized by a condition of probation, [i]s reasonable within the meaning of the

Fourth Amendment.” Here, Officer Lee had reasonable suspicion Morgan was

involved in unlawful drug activity, and a condition of Morgan’s probation

agreement expressly authorized the search. The search therefore was reasonable

under the Fourth Amendment. Whether the search had an investigatory or

probationary purpose is immaterial. Nothing in Morgan’s probation agreement

“limit[ed] searches pursuant to this probation condition to those with a

‘probationary’ purpose.” Id. at 116; see also United States v. Stokes, 292 F.3d 964,

967 (9th Cir. 2002) (recognizing Knights overturned a previous line of circuit cases

holding “searches of probationers invalid on the ground that they were subterfuges

for criminal investigations”).

      Morgan argues the search exceeded the scope of the probation condition

because “Lee was acting in concert with the police in an effort to circumvent the


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Fourth Amendment requirements.” See Washington Department of Corrections

Policy 420.390 (Dec. 6, 2013) (“Law enforcement can assist with searches.

However, the search cannot occur at the request of, or as an agent for, a law

enforcement agency.”). That did not occur here, however. Although Officer Lee

and the police cooperated in the search, the search was directed and authorized by

Lee, not the police. Cf. State v. Reichert, 242 P.3d 44, 49 (Wash. Ct. App. 2010)

(“[A] searching DOC officer does not run afoul of the Fourth Amendment merely

because they [sic] originally receive a tip from police that the probationer may be

violating the terms of his probation.”).

      2. Morgan argues the search of the Pontiac was unauthorized by the

probation agreement because he merely possessed rather than owned the car. But

he cites no authority construing the phrase “my automobile” to require ownership

as well as possession. See “My,” Webster’s Third New International Dictionary

1493-94 (2002). Morgan was in possession of the automobile. He had keys to the

car; he alone made repeated trips to the car; he placed a backpack in the trunk; he

was apprehended while sitting in the driver’s seat; the car was parked at an

apartment believed to be his residence; and, as further evidence linking him to the

car and explaining his possession, the car was formerly owned by an associate of

his known to be in the narcotics trade.


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      3. Relying on Arizona v. Gant, 556 U.S. 332, 343 (2009), Morgan argues

the warrantless search of the Pontiac was unlawful because it was conducted after

he was taken into custody, obviating any concern he might destroy evidence. The

search of the Pontiac, however, was authorized by Knights and the probationary

search doctrine, not by the search incident to lawful arrest doctrine. Arizona v.

Gant therefore does not apply.

      4. Morgan’s contention that he did not unequivocally waive his right to

counsel is unpersuasive. Morgan’s request to represent himself was conditional to

the extent he said he would have preferred substitution of appointed counsel to

proceeding pro se. But Morgan was clear and unwavering in informing the court

that, if his only other choice was to proceed with existing counsel, he wished to

represent himself. The district court did not clearly err in finding the request was

unequivocal. See Adams v. Carroll, 875 F.2d 1441, 1444-45 (9th Cir. 1989)

(“[The defendant] made his preference clear from the start: He wanted to represent

himself if the only alternative was representation by [existing counsel]. . . . While

his requests no doubt were conditional, they were not equivocal.”); see also United

States v. Hernandez, 203 F.3d 614, 621-22 (9th Cir. 2000) (“The fact that [the

defendant’s] request may have been conditional – that is, the fact that he requested

to represent himself only because the court was unwilling to grant his request for


                                          4
new counsel – is not evidence that the request was equivocal.”), abrogated on

other grounds by Indiana v. Edwards, 554 U.S. 164 (2008), as recognized in

United States v. Ferguson, 560 F.3d 1060 (9th Cir. 2009); United States v.

Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir. 2009) (“A district court’s finding

that a defendant’s waiver is equivocal is a finding of fact reviewed for clear

error.”). Nor was Morgan’s request “an impulsive response to the trial court’s

denial of his request for substitute counsel.” Jackson v. Ylst, 921 F.2d 882, 888

(9th Cir. 1990).

      AFFIRMED.




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