NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 17 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50382

Plaintiff-Appellee, D.C. No. 2:16-cr-00526-FMO-CR-1 v.

TRACY DEVON THOMAS, AKA Baby 8, MEMORANDUM* AKA Yachin French, AKA Jachin French Jr., AKA Lil C, AKA S-Man, AKA Tracy Devon French Thomas, AKA Jachin Tracy,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Argued and Submitted January 11, 2019 Pasadena, California

Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,** District Judge.

The district court properly admitted the gun and ammunition seized pursuant

to a warrant authorizing the search of Tracy Thomas’ apartment. The warrant was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. Page 2 of 3

supported by probable cause. According to the warrant affidavit, the victims of the

drive-by shooting observed and reported the license plate number of the car used in

the shooting. Thomas was renting a car with that license plate number at the time

of the shooting, and the car was returned approximately two hours after the

shooting took place. Thomas had his own car and lived in the same metropolitan

area where the shooting occurred. These facts gave rise to a “fair probability” that

Thomas was involved in the shooting. Illinois v. Gates, 462 U.S. 213, 238 (1983).

The warrant affidavit also established probable cause to search the specified

apartment. The police determined that Thomas lived there by locating his car and

conducting surveillance outside of the apartment. Under the totality of the

circumstances, there was a fair probability that the firearm and other evidence

relating to the shooting would be found at Thomas’ apartment. See United States

v. Bowers, 534 F.2d 186, 190–92 (9th Cir. 1976). The passage of two weeks

between the shooting and the search did not undermine the existence of probable

cause. See id. at 192–93.

The district court properly admitted the statements that Thomas made at the

police station. Even assuming that Thomas’ arrest was unconstitutional, his

statements were admissible because they were taken while Thomas was in legal

custody and after he had waived his rights under Miranda v. Arizona, 384 U.S. 436

(1966). See New York v. Harris, 495 U.S. 14, 19–20 (1990). Thomas’ continued Page 3 of 3

detention after the arrest was lawful because the police had probable cause to arrest

him for the shooting and for possessing the gun and ammunition found at his

apartment. See id. at 18.

AFFIRMED.