6/23/20: Inventory searches and conditions of supervised release

In United States v. Magdirila, --- F.3d ---, No. 18-50430 (9th Cir. 2020), the Court affirmed the district court’s denial of the defendant’s motion to suppress contraband found during an inventory search of a vehicle he was driving, vacated challenged conditions of supervised release, and remanded.

This case follows on United States v. Garay, 938 F.3d 1108 (9th Cir. 2019), which held the failure to complete an inventory search form was not a material deviation from policy and did not make the search invalid.

Here, like Garay, the Court found the officer complied substantially with the applicable policy’s direction to inventory the property in an impounded vehicle.

The Court also vacated for vagueness a condition of supervised release that provided:  "As directed by the probation officer, the defendant must notify specific persons and organizations of specific risks posed by the defendant to those persons and organizations and must permit the probation officer to confirm the defendant’s compliance with such requirement and to make such notifications."

Judge Berzon concurred to note (correctly) that Garay was wrongly decided.

Finally, there is an informative discussion of preservation in the Fourth Amendment context:

Except for good cause, a motion to suppress must “be raised by pretrial motion.” Federal Rule of Criminal Procedure 12(b)(3)(C); see also United States v. Guerrero, 921 F.3d 895, 897–98 (9th Cir. 2019). Defendants ordinarily may not raise new grounds for suppression on appeal. See United States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004). That is, a defendant may not (1) assert facts contradicting the facts he or she asserted before the district court, id.; (2) rely on facts that were not raised before or relied upon by the district court, Guerrero, 921 F.3d at 898; or (3) make a new legal argument in support of suppression, unless the issue does not affect or rely on the factual record developed by the parties, see United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001), overruled on other grounds by United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc). An argument is not waived if “the district court nevertheless addressed the merits of the issue not explicitly raised by the party.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n.8 (9th Cir. 2010) (internal quotation marks and citation omitted).