United States of America v. Anthony Gray

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY GRAY,
Defendant-Appellant.
No. 18-10190
D.C. No. 3:17-cr-00054-HDM-
VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted June 13, 2019
San Francisco, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and RAKOFF,** District
Judge.
Following the denial of his motion to suppress evidence, defendant Anthony
Gray entered a conditional guilty plea to one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), preserving his
FILED
JUN 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.

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right to appeal the denial of his motion to suppress. On appeal, Gray contends that
the police lacked probable cause to conduct the search that uncovered the gun. We
hold that the district court correctly found there was probable cause and so affirm.
On the evening of June 29, 2017, Gray was the passenger in a vehicle that
was driving through downtown Reno, Nevada. Deputy Richard Spaulding of the
Washoe County Sheriff’s Office noticed that the car was operating without
headlights and initiated a traffic stop. Deputy Vincent Gamboa, who was assisting
with the stop, smelled marijuana from inside the car while questioning Gray.
Gamboa asked the driver, Matthew Cannon, who had been “smoking bud” in the
vehicle, but Cannon insisted that there was no marijuana in the car and that neither
he nor Gray had been smoking. Cannon offered to let the officers test himself and
Gray for drugs, but the officers did not do so. Instead, Gamboa called for a drug-
detecting dog, which alerted on the vehicle. The officers then searched the car and
found a handgun in Gray’s backpack, located behind the driver’s seat.
Gray argues on appeal, as he did before the district court, that because
possession of less than one ounce of marijuana is legal in Nevada, see Nev. Rev.
2

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Stat. § 453D.110(1), the officers lacked probable cause to suspect a violation of
state law and so the ensuing search violated the Fourth Amendment.1 We disagree.
Notwithstanding Nevada’s legalization of possession of a small amount of
marijuana in most instances, Nevada law still makes it a misdemeanor for a person
to “smoke[] or otherwise consume[] marijuana in a public place, . . . or in a moving
vehicle.” Nev. Rev. Stat. § 453D.400(2). The vehicle in this case was moving
before it was stopped by Spaulding and Gamboa. Because Cannon insisted that
neither he nor Gray had been smoking marijuana, even though Gamboa could
smell it, Gamboa “could have reasonably inferred that [Cannon was] lying and that
[his] lies suggested a guilty mind.” District of Columbia v. Wesby, 138 S. Ct. 577,
587 (2018). And once the dog alerted, confirming that the car contained drugs, “the
facts available to [the officers] would warrant a [person] of reasonable caution in
the belief that contraband or evidence of a crime [was] present.” Florida v. Harris,
568 U.S. 237, 244 (2013) (internal quotation marks omitted) (quoting Texas v.
Brown, 460 U.S. 730, 742 (1983) (plurality opinion)). Even if the smell was too
1 Although Gray, as a passenger, would not ordinarily be permitted to
challenge the search of the car, see United States v. Pulliam, 405 F.3d 782, 786
(9th Cir. 2005), the Government has never argued, either in the district court or on
appeal, that Gray lacked a reasonable expectation of privacy in the car. The
Government therefore “has waived any objection it might otherwise have had” on
that basis. United States v. Wanless, 882 F.2d 1459, 1463 (9th Cir. 1989).
3

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faint to suggest a large quantity of drugs, Cannon’s conduct could reasonably
suggest that either he or Gray had been smoking in a public place or while the
vehicle was in motion, in violation of Nev. Rev. Stat. § 453D.400(2).
Because the officers had probable cause to suspect a violation of Nevada law
at the time of the search, the district court correctly denied Gray’s suppression
motion.2
AFFIRMED.
2 In light of our conclusion, we do not reach the question of whether the
Government forfeited its alternative argument—that the search could be sustained
based on a suspected violation of federal law—by failing to adequately raise it
before the district court.
4

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