United States of America v. Marty Lish

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTY LISH,
Defendant - Appellant.
No. 12-30004
D.C. No. 4:10-cr-00100-BLW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Submitted April 7, 2014 **
Seattle, Washington
Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.
Marty Lish (“Lish”) appeals his jury trial conviction for Conspiracy to
Distribute Less than 50 grams of Methamphetamine and Possession with Intent to
FILED
APR 10 2014
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Distribute a Controlled Substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18
U.S.C. § 2. We affirm.
Lish’s Fourth Amendment challenge to the denial of his motion to suppress
fails because an investigatory vehicle stop does not offend the Fourth Amendment if
it is supported by reasonable suspicion. United States v. Twilley, 222 F.3d 1092, 1095
(9th Cir. 2000). At the time of the stop, the officers knew: (1) a reliable informant
had seen Lish in possession of and distributing methamphetamine earlier that
morning; (2) Lish had met with a suspected drug trafficker that day in a parking lot,
from which she proceeded to get into Lish’s car, drive around with him for a few
minutes, and then return to her vehicle; (3) Lish had made short visits to various
residences of suspected drug users and traffickers; (4) Lish had driven in a manner to
avoid being followed; and (5) based on dispatch’s records, Lish’s license plate did not
match his vehicle. It was rational for the officers to infer from these specific
articulable facts that Lish “may have committed or [was] about to commit a crime.”
United States v. Garcia-Acuna, 175 F.3d 1143, 1146 (9th Cir. 1999).
The subsequent search of Lish’s vehicle also did not violate the Fourth
Amendment since his parole conditions authorized searches of this kind, and the
officers had reasonable suspicion that he had engaged in criminal activity. See
Samson v. California, 547 U.S. 843, 850–57 (2006) (upholding search under
2

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suspicionless-search parole condition); United States v. Knights, 534 U.S. 112, 121–
22 (2001) (upholding search based on probation conditions and reasonable suspicion).
Lish does not dispute that he consented to parole conditions requiring him to submit
to searches of his vehicle and personal property “at any time, with or without a search
warrant, whenever reasonable cause is determined by a Parole Agent” or whenever
“any . . . law enforcement officer” so desires. Nor does he dispute his parole officer’s
determination that, based on the information an officer provided him regarding the
criminal investigation, there was reasonable cause to conduct a parole search. 1
Finally, the admission into evidence of text messages from Lish’s cell phone
and the limitation on his ability to impeach this evidence was not plain error. Under
United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011), Lish would
need to show, among other things, that any error affected substantial rights and
seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. Lish has not demonstrated either.
AFFIRMED.
1 Because we find the officers possessed reasonable suspicion to stop Lish’s
vehicle and his conditions of parole justified the subsequent search, we need not
examine the district court’s alternative holding based on probable cause.
3

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