NOT FOR PUBLICATION DEC 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50648
Plaintiff - Appellee, D.C. No. 2:09-cr-00078-FMC-1
JEFFREY MICHAEL WILSON, AKA
Defendant - Appellant.
Appeal from the United States District Court for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Submitted December 9, 2010 **
Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
Jeffrey Michael Wilson ("Wilson") entered a conditional guilty plea to being
a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §
922(g)(1). On appeal, Wilson contends that the district court abused its discretion
in denying his request for an evidentiary hearing on his motion to suppress
"We review for an abuse of discretion a [district] court's decision whether to
conduct an evidentiary hearing on a motion to suppress." United States v. Quoc
Viet Hoang, 486 F.3d 1156
, 1163 (9th Cir. 2007) (quoting United States v. Howell,
231 F.3d 615
, 620 (9th Cir. 2000)).
We conclude that the district court did not abuse its discretion in refusing to
hold an evidentiary hearing because Wilson failed to identify any "significant
disputed factual issue" in his motion to suppress. See Howell, 231 F.3d at 621.
Even though there was a factual dispute regarding the scope of Officer Vetere's
patdown, the district court correctly concluded that this factual dispute was
Assuming that Officer Vetere's patdown of Wilson exceeded its permissible
scope, Officer Vetere's subsequent act of looking in the rear passenger window
was not "fruit of the poisonous tree" because there was sufficient evidence to
justify the search of Wilson's truck independent of any initial illegality. See Wong
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Sun v. United States, 371 U.S. 471
, 487-88 (1963); see also United States v. Miller,
812 F.2d 1206
, 1208-09 (9th Cir. 1987).
Officer Vetere's search of Wilson's truck was conducted based on lawfully
obtained probable cause to believe that the truck contained evidence of a crime. Id.
at 1208 ("Historically, individuals always [have] been on notice that movable
vessels may be stopped and searched on facts giving rise to probable cause that the
vehicle contains contraband, without the protection afforded by a magistrate's prior
evaluation of those facts."). Officer Vetere searched Wilson's car because (1)
Wilson appeared "agitated and nervous"; (2) Wilson produced no identification;
(3) Officer Vetere looked through the rear passenger's side window of Wilson's
truck and saw in plain view the butt end of what he believed to be a rifle, partially
concealed by a T-shirt and towel; and (4) when asked, Wilson admitted to having a
gun in his truck. None of these facts were discovered through a violation of
Wilson's constitutional rights. Together, these facts were sufficient to establish
probable cause to believe that Wilson's truck contained evidence that Wilson was
violating Cal. Penal Code § 12025, which prohibits concealing a firearm within a
vehicle, and Cal. Penal Code § 12031, which prohibits "carrying a loaded firearm .
. . in a vehicle[.]" Officer Vetere thus had probable cause to search Wilson's truck
under the automobile exception.
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Therefore, we affirm the district court's denial of an evidentiary hearing.
The district court did not abuse its discretion because Wilson failed to identify any
"significant disputed factual issue" in his motion to suppress.
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