United States of America v. Tevin Tan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TEVIN TAN,
Defendant - Appellant.
No. 13-10249
D.C. No. 2:10-cr-00262-WBS-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted November 16, 2015
San Francisco, California
Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
Defendant Tevin Tan (“Tan”) pleaded guilty to one count of manufacturing
at least 100 marijuana plants. 21 U.S.C. § 841(a)(1). Tan appeals his conviction,
arguing that the marijuana plants and other evidence in his case should have been
suppressed, because the search warrant affidavit for his house lacked probable
FILED
JAN 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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cause on its face, and relied on evidence obtained through unconstitutional
searches. Tan also argues that he has not waived the right to appeal the denial of
his motion to suppress that evidence because the district court explicitly informed
him that this right was preserved. We have jurisdiction under 28 U.S.C. §§ 1291
and 1294(1). We hold that Tan did not waive his appellate rights, and we affirm
the denial of Tan’s motion to suppress the evidence.
Tan argues that the written waiver of his right to appeal his conviction is
invalid. We agree. Under the unique circumstances here, Tan had a reasonable
expectation that he could appeal the denial of his motion to suppress because when
he pleaded guilty, the district court explicitly advised him this right was preserved.
See United States v. Felix, 561 F.3d 1036, 1040–41 (9th Cir. 2009). When
discussing the sentencing agreement, the district court personally informed Tan
that his right to appeal the sentence was preserved, but did not explicitly instruct
Tan on the difference between appealing a conviction and appealing a sentence. In
this context, Tan could have been confused and had the reasonable expectation that
he maintained the right to appeal both. We therefore address the merits of Tan’s
appeal.
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The district court did not err in rejecting Tan’s motion to suppress. Tan
argues that the means used to gather the evidence in the affidavit violated United
States v. Jones, 132 S. Ct. 945 (2012), and Florida v. Jardines, 133 S. Ct. 1409
(2013). This argument is foreclosed because the searches were “conducted in
objectively reasonable reliance on then-binding precedent” at the time they
occurred. United States v. Pineda-Moreno, 688 F.3d 1087, 1089 (9th Cir. 2012);
United States v. Thomas, 726 F.3d 1086, 1093 (9th Cir. 2013). In the absence of
any independent violation of the Fourth Amendment, the officers were entitled to
rely on the warrant approved by the magistrate. See United States v. Leon, 468
U.S. 897, 920–21 (1984); United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994).
AFFIRMED.
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