NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 1 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50147

Plaintiff-Appellee, D.C. No. 8:21-cr-00193-PA-1

v.

MEMORANDUM*

KEVIN TRAN,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted January 12, 2024 Pasadena, California

Before: TALLMAN and BENNETT, Circuit Judges, and LASNIK,** District Judge.

Officer Patrick Murphy saw a gray Toyota Camry that had its registration

tags scratched or torn off. His registration check revealed that the registration had

been expired for about two years. Officer Murphy initiated a traffic stop,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. approached the car, and saw two people in it—the driver Michael Nguyen and the

defendant Kevin Tran, who was sitting in the front passenger seat. He searched the

car with Nguyen’s consent. He also searched Tran’s backpack located on the front

passenger seat, where inside the main compartment he found a handgun—a Glock,

model 23, .40 caliber semi-automatic pistol—and 13 rounds of ammunition. Tran

was arrested for being a felon in possession of the firearm and ammunition. See 18

U.S.C. § 922(g)(1). Tran moved to suppress the gun and the ammunition because

of the alleged unconstitutional search of his backpack. He also moved to suppress

all evidence and statements obtained following his alleged prolonged detention.

The district court orally denied Tran’s motion to suppress. Tran entered a

conditional guilty plea to the single-count indictment, which preserved his right to

appeal the denial of his motion to suppress. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

1. We review the district court’s denial of a motion to suppress evidence

de novo and its factual findings for clear error. United States v. Norris, 942 F.3d

902, 907 (9th Cir. 2019). Under the automobile exception, “police officers with

probable cause to search a car may inspect passengers’ belongings found in the car

that are capable of concealing the object of the search.” Wyoming v. Houghton,

526 U.S. 295, 307 (1999). Officer Murphy suspected that Nguyen violated

California’s DUI laws. See Veh. Code §§ 23152(f), 23536; Cal. Health & Safety

2 Code § 11362.3(a)(7)–(8). Thus, we must assess the totality of the facts and

circumstances known to Officer Murphy prior to his search of Tran’s backpack to

determine whether he had probable cause to believe that Nguyen was driving

“under the influence of any drug,” Cal. Veh. Code § 23152(f), or was “[s]mok[ing]

or ingest[ing] cannabis . . . while driving,” Cal. Health & Safety Code

§ 11362.3(8).

Before the search of Tran’s backpack, the totality of the circumstances

included the following: (1) Officer Murphy smelled the odor of burned marijuana

coming from the car. (2) Officer Murphy found on Nguyen a knife and a small

glass jar that contained a green leafy substance, which appeared to be marijuana.

(3) Tran’s identification check confirmed that he belonged to the “Asian Boys”

gang, which “[b]ased on [Officer Murphy’s] training and experience, . . . is

frequently involved in criminal activity, including vehicle theft and drug

trafficking.” (4) Tran told Office Murphy that there was marijuana inside his

backpack.1 The district court also noted that “Nguyen complain[ed] that he . . .

1 Tran claims that the government cannot rely on this statement because he made it after the search began and “[t]he Government cannot justify the vehicle search based on information the officers learned after that search began.” But we assess the “totality of the circumstances known to the officers prior to the challenged searches and seizures.” United States v. Woods, 720 F.2d 1022, 1023 (9th Cir. 1983), and here, the “challenged search” is the search of the backpack. While Nguyen’s consent to the vehicle search did not independently justify the search of Tran’s backpack, by the time Officer Murphy began searching Tran’s backpack, he had developed probable cause to believe that it might contain evidence that

3 d[id]n’t want to get out of the car.”

The smell of marijuana, combined with the other facts discussed above,

supports probable cause that Nguyen violated California’s DUI laws. See United

States v. Malik, 963 F.3d 1014, 1016 (9th Cir. 2020) (per curiam) (holding that the

officer had probable cause to search a tractor-trailer because the officer smelled

marijuana in the tractor-trailer and because the defendant—the driver of the

tractor-trailer—had a “changing story about when he smoked the marijuana

cigarette”); United States v. Vasquez, No. 19-50275, 2021 WL 3011997, at *2 (9th

Cir. July 15, 2021) (acknowledging that while “[i]t is true that the smell of

marijuana alone no longer provides a basis for probable cause[,] . . . when

combined with other factors, the smell of marijuana may still support probable

cause that a vehicle contains evidence of marijuana activity that remains unlawful

under California law”), cert. denied, 142 S. Ct. 502.

The evidence supporting probable cause to search Tran’s backpack was

strong, especially considering that Officer Murphy smelled “burned,” rather than

fresh, marijuana and that Tran admitted that there was marijuana in his backpack.

We thus affirm the district court’s determination that Officer Murphy had probable

cause to believe Nguyen had violated California’s DUI laws. Tran does not

Nguyen had violated California’s DUI laws. See United States v. Blunt, 535 F. App’x 542, 544 (9th Cir. 2013).

4 challenge that the backpack could contain evidence of DUI. Thus, the search of

Tran’s backpack, which yielded the gun and ammunition, was lawful under the

automobile exception.

2. Tran next argues that the officers violated his Fourth Amendment

rights by lengthening the roadside detention to conduct criminal investigations

unrelated to the mission of the traffic stop or any independent reasonable

suspicion. Thus, Tran claims that all fruits of the alleged prolonged detention must

be suppressed under Rodriguez v. United States, 575 U.S. 348 (2015). An officer’s

additional investigative actions or questioning are “permissible only if [they]

w[ere] (1) part of the stop’s ‘mission’ or (2) supported by independent reasonable

suspicion.” United States v. Landeros, 913 F.3d 862, 867–68 (9th Cir. 2019).

Here, there was a valid basis for the traffic stop, so we move to the alleged

prolonged detention.

First, Officer Murphy did not improperly prolong the detention by ordering

Nguyen to exit the car. See Pennsylvania v. Mimms, 434 U.S. 106, 109–10 (1977)

(per curiam) (holding that even when “the officer had no reason to suspect foul

play from the particular driver at the time of the stop, there having been nothing

unusual or suspicious about his behavior,” the officer’s precautionary “practice to

order all drivers out of their vehicles as a matter of course whenever they had been

stopped for a traffic violation” was constitutionally proper).

5 Second, the officers did not improperly prolong the stop by frisking either

Nguyen or Tran. See Arizona v. Johnson, 555 U.S. 323, 332 (2009) (“[O]fficers

who conduct routine traffic stops may perform a patdown of a driver and any

passengers upon reasonable suspicion that they may be armed and dangerous.”

(cleaned up)). The brief frisks were justified by the odor of burned marijuana, the

suspected vehicle theft, Nguyen’s initial refusal to get out of the car, the knife in

Nguyen’s pocket, and reason to believe Nguyen and Tran were engaged in a

“common enterprise.” Houghton, 526 U.S. at 304–05.

Third, Officer Elhami did not improperly prolong the detention by briefly

asking Tran whether he was “on probation or anything.” See Johnson, 555 U.S. at

333 (“An officer’s inquiries into matters unrelated to the justification for the traffic

stop . . . do not convert the encounter into something other than a lawful seizure, so

long as those inquiries do not measurably extend the duration of the stop.”).

Fourth, Officer Elhami did not improperly prolong the detention by ordering

Tran to exit the car. See Maryland v. Wilson, 519 U.S. 408, 410 (1997) (extending

Mimms to passengers).

Fifth, the officers did not improperly prolong the detention by asking for

Tran’s identification and searching the car because the officers had at least formed

reasonable suspicion of criminal conduct prior to their investigative steps.

“Although a mere hunch does not create reasonable suspicion, the level of

6 suspicion the standard requires is considerably less than proof of wrongdoing by a

preponderance of the evidence, and obviously less than is necessary for probable

cause.” Navarette v. California, 572 U.S. 393, 397 (2014) (cleaned up). And

Nguyen consented to the vehicle search.

Here, when Officer Elhami asked Tran for identification, he knew several

facts that he did not know when Officer Murphy first stopped the car: (1) that the car

smelled of burned marijuana; (2) that Nguyen had a knife and a small glass jar

containing what appeared to be marijuana; (3) that Tran had an “Asian Boys” tattoo;

and (4) that Nguyen initially refused to get out of his car. And by the time that

Officer Murphy began searching the car, Tran’s identification check confirmed that

he belonged to the “Asian Boys” gang.

None of the cases Tran cites support that any of these actions and inquiries

were unsupported by reasonable suspicion.

AFFIRMED.

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