FILED
NOT FOR PUBLICATION NOV 20 2009
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. 08-10527
Plaintiff - Appellee, D.C. No. 1:07-CR-00151-OWW-1
v.
MEMORANDUM *
JOHN MCCARTNEY,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted November 2, 2009
San Francisco, California
Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY, **
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
Following the district court’s denial of his motion to suppress evidence and
his motion to dismiss the indictment, John McCartney pled guilty to four counts of
possession of a machine gun in violation of 18 U.S.C. § 922(o) and fifteen counts
of possession of a firearm not registered in the National Firearms Registry in
violation of 26 § U.S.C. 5861(d). McCartney appeals from the district court’s
denial of both motions.
We review de novo motions to suppress, including questions of whether law
enforcement officials have reasonable suspicion or probable cause under given
facts. See United States v. Decoud, 456 F.3d 966, 1007 (9th Cir. 2006); United
States v. Bishop, 264 F.3d 919, 924 (9th Cir. 2005). Underlying factual findings
are reviewed for clear error. United States v. Colin, 314 F.3d 439, 442 (2002). We
review de novo denials of motions to dismiss based on constitutional rights. See
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004).
I. Motion to Suppress Evidence
McCartney argues that the district court erred in denying his motion to
suppress evidence discovered during the traffic stop of McCartney by Kern County
Sheriff’s Office Deputy Avery Simpson. The district court held that the stop was
justified by reasonable suspicion of a traffic violation, crediting Deputy Simpson’s
testimony that the rear left brake light of McCartney’s truck failed to illuminate
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over the contradictory testimony of McCartney’s son, Josh, that the light worked
on the day of the stop. The district court questioned Josh’s credibility due to the
fact that Josh rendered conclusive tests of the light assembly impossible by
unnecessarily removing the assembly from the truck and severing wires in the
process. Contrary to McCartney’s assertion otherwise, the district court repeated
this credibility determination in denying his motion to reconsider. We defer to the
district court’s credibility determination, see United States v. Ruteledge, 28 F.3d
998, 1003 (9th Cir. 1994), and conclude that the district court’s finding that the
taillight failed to illuminate is not clearly erroneous, see Colin, 314 F.3d at 442.
The failure of the taillight to illuminate constitutes a traffic violation under
California Vehicle Code § 24603(b) and is sufficient to justify the traffic stop.
McCartney does not dispute the validity of Deputy Simpson’s inventory search of
the truck once McCartney was stopped. The district court therefore did not err in
denying the motion to suppress evidence.
In any event, the search was independently justified by probable cause
under the collective knowledge doctrine. Special Agent Sanders, of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, had probable cause to believe that
McCartney illegally had a machine gun in his truck at the time of the stop. A
confidential source informed Agent Sanders that McCartney possessed a machine
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gun in his truck and accurately described his movements on the night of the stop.
Agent Sanders knew that the source had a basis for her knowledge given her
relationship with McCartney. In addition, the source’s earlier statements regarding
McCartney had been corroborated by three other confidential informants and by
Agent Sanders’s own observations. All four informants had previously stated that
McCartney possessed an assortment of dangerous weapons. These facts suggested
to Agent Sanders at least a “fair probability” that a machine gun was located in
McCartney’s truck. See U.S. v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007)
(defining probable cause); United States v. Hill, 55 F.3d 479, 480 (9th Cir. 1995)
(corroborating stories of three separate neighbors sufficient to provide probable
cause). Under the collective knowledge doctrine, Deputy Simpson permissibly
relied on the fact that Agent Sanders had probable cause when he directed him to
stop McCartney. See United States v. Ramirez, 473 F.3d 1026, 1028 (9th Cir.
2007).
McCartney argues that the collective knowledge doctrine does not apply
because Agent Sanders and Deputy Simpson are not in the same department.
McCartney relies on United States v. Morales, 252 F.3d 1070, 1077 (9th Cir.
2001), in which the Ninth Circuit held that an anonymous tip passed on from one
police department to another was insufficient to provide reasonable suspicion. But
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Morales is inapposite to this case. In Morales, the government did not present any
evidence that the original law enforcement officials had reasonable suspicion; thus
the collective knowledge doctrine could not properly come into play. 252 F.3d at
1073–77. The common knowledge doctrine applies irrespective of whether
cooperating law enforcement officers are in different departments. See United
States v. Hensley, 469 U.S. 221, 223 (1985) (police officer conducted an
investigatory stop in reliance on another department’s wanted flyer); United States
v. Sutton, 794 F.2d 1415, 1426 (9th Cir. 1986) (investigatory stop by a local deputy
sheriff dispatched at the request of United States Customs officials).
McCartney does not argue that the search warrant for his home was not
supported by probable cause if the evidence of the machine gun in his truck is
admissible. The district court therefore did not err in denying his motion to
suppress evidence from his home. Even excluding the machine gun discovered in
McCartney’s truck, the affidavit in support of the warrant application included
information from four independent confidential sources, all of whom provided
specific evidence that McCartney possessed unregistered firearms. This
information alone was sufficient to justify the warrant. Cf. Hill, 55 F.3d at 480.
The inclusion of the discovered machine gun only strengthens the case.
II. Motion to Dismiss the Indictment
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McCartney also argues that the district court erred by denying his motion to
dismiss the indictment. The district court held that the Second Amendment does
not protect the right to possess the weapons at issue in this case: machine guns,
silencers, grenades, and directional mines.
In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme Court
held that the Second Amendment protects the right of individuals to possess
firearms against certain kinds of restrictions by the federal government. However,
the Court recognized that “the Second Amendment is not unlimited,” and does not
include the “right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Id. at 2816. It recognized that the Second
Amendment protects only “the sorts of weapons . . . in common use,” and does not
extend to “dangerous and unusual weapons.” Id. at 2817.
The weapons involved in this case are dangerous and unusual. McCartney’s
own expert testified that the machine gun is a dangerous weapon in light of the fact
that “it devastated entire populations in World War I.” And the possession of a
machine gun by a private citizen is quite unusual in the United States. The other
weapons involved in this case are even more dangerous and unusual than machine
guns. Silencers, grenades, and directional mines are not “typically possessed by
law-abiding citizens for lawful purposes,” Heller 128 S. Ct. at 2815–16 (referring
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to short-barreled shotguns), and are less common than either short-barreled
shotguns or machine guns. The weapons involved in this case therefore are not
protected by the Second Amendment.
AFFIRMED.
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