NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-30293
Plaintiff-Appellee, D.C. No.
2:14-cr-00100-MJP-1
v.
SETH MORGAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Submitted October 6, 2016**
Seattle, Washington
Before: W. FLETCHER, FISHER and N.R. SMITH, Circuit Judges.
Seth Morgan appeals his convictions for being a felon in possession of a
firearm, possession of controlled substances with intent to distribute and
possession of a firearm in furtherance of a drug trafficking crime. We have
jurisdiction under 28 U.S.C. § 1291. Because the district court properly denied
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Morgan’s motion to suppress and committed no clear error when it concluded
Morgan unequivocally waived his right to counsel, we affirm.
1. We reject Morgan’s argument that the warrantless search was unlawful
because Department of Corrections Officer Lee conducted the search as an agent of
law enforcement. Under United States v. Knights, 534 U.S. 112, 122 (2001), a
warrantless search of a probationer, “supported by reasonable suspicion and
authorized by a condition of probation, [i]s reasonable within the meaning of the
Fourth Amendment.” Here, Officer Lee had reasonable suspicion Morgan was
involved in unlawful drug activity, and a condition of Morgan’s probation
agreement expressly authorized the search. The search therefore was reasonable
under the Fourth Amendment. Whether the search had an investigatory or
probationary purpose is immaterial. Nothing in Morgan’s probation agreement
“limit[ed] searches pursuant to this probation condition to those with a
‘probationary’ purpose.” Id. at 116; see also United States v. Stokes, 292 F.3d 964,
967 (9th Cir. 2002) (recognizing Knights overturned a previous line of circuit cases
holding “searches of probationers invalid on the ground that they were subterfuges
for criminal investigations”).
Morgan argues the search exceeded the scope of the probation condition
because “Lee was acting in concert with the police in an effort to circumvent the
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Fourth Amendment requirements.” See Washington Department of Corrections
Policy 420.390 (Dec. 6, 2013) (“Law enforcement can assist with searches.
However, the search cannot occur at the request of, or as an agent for, a law
enforcement agency.”). That did not occur here, however. Although Officer Lee
and the police cooperated in the search, the search was directed and authorized by
Lee, not the police. Cf. State v. Reichert, 242 P.3d 44, 49 (Wash. Ct. App. 2010)
(“[A] searching DOC officer does not run afoul of the Fourth Amendment merely
because they [sic] originally receive a tip from police that the probationer may be
violating the terms of his probation.”).
2. Morgan argues the search of the Pontiac was unauthorized by the
probation agreement because he merely possessed rather than owned the car. But
he cites no authority construing the phrase “my automobile” to require ownership
as well as possession. See “My,” Webster’s Third New International Dictionary
1493-94 (2002). Morgan was in possession of the automobile. He had keys to the
car; he alone made repeated trips to the car; he placed a backpack in the trunk; he
was apprehended while sitting in the driver’s seat; the car was parked at an
apartment believed to be his residence; and, as further evidence linking him to the
car and explaining his possession, the car was formerly owned by an associate of
his known to be in the narcotics trade.
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3. Relying on Arizona v. Gant, 556 U.S. 332, 343 (2009), Morgan argues
the warrantless search of the Pontiac was unlawful because it was conducted after
he was taken into custody, obviating any concern he might destroy evidence. The
search of the Pontiac, however, was authorized by Knights and the probationary
search doctrine, not by the search incident to lawful arrest doctrine. Arizona v.
Gant therefore does not apply.
4. Morgan’s contention that he did not unequivocally waive his right to
counsel is unpersuasive. Morgan’s request to represent himself was conditional to
the extent he said he would have preferred substitution of appointed counsel to
proceeding pro se. But Morgan was clear and unwavering in informing the court
that, if his only other choice was to proceed with existing counsel, he wished to
represent himself. The district court did not clearly err in finding the request was
unequivocal. See Adams v. Carroll, 875 F.2d 1441, 1444-45 (9th Cir. 1989)
(“[The defendant] made his preference clear from the start: He wanted to represent
himself if the only alternative was representation by [existing counsel]. . . . While
his requests no doubt were conditional, they were not equivocal.”); see also United
States v. Hernandez, 203 F.3d 614, 621-22 (9th Cir. 2000) (“The fact that [the
defendant’s] request may have been conditional – that is, the fact that he requested
to represent himself only because the court was unwilling to grant his request for
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new counsel – is not evidence that the request was equivocal.”), abrogated on
other grounds by Indiana v. Edwards, 554 U.S. 164 (2008), as recognized in
United States v. Ferguson, 560 F.3d 1060 (9th Cir. 2009); United States v.
Mendez-Sanchez, 563 F.3d 935, 944 (9th Cir. 2009) (“A district court’s finding
that a defendant’s waiver is equivocal is a finding of fact reviewed for clear
error.”). Nor was Morgan’s request “an impulsive response to the trial court’s
denial of his request for substitute counsel.” Jackson v. Ylst, 921 F.2d 882, 888
(9th Cir. 1990).
AFFIRMED.
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