Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1986)

MEMORANDUM^** 

Appellant Giovanni Messina appeals his conviction on two counts of possession with intent to distribute counterfeit money. He contends the district court erred in denying his motion to suppress evidence obtained as a result of the seizure and search of his 1982 tan Audi automobile. In challenging the seizure, appellant argues (1) the Secret Service lacked probable cause to seize his automobile and (2) the automobile exception to the fourth amendment warrant requirement does not apply. Appellant also contends that he received ineffective assistance of counsel.

* At the onset, the government argues appellant's failure to argue the probable cause issue before the district court, effectively waived the issue on appeal. From the record before us, we cannot determine whether appellant in fact waived the issue. Instead, we find that appellant's probable cause claim fails on the merits.

Appellant alleges the Secret Service lacked probable cause to seize his automobile. Under 49 U.S.C. §§ 781 and 782 "a vehicle may be seized if there is probable cause to believe it was used to facilitate the transfer of contraband." U.S. v. Johnson, 572 F.2d 227, 234 (9th Cir.); cert. denied, 437 U.S. 907 (1978). To determine probable cause, courts consider the totality of circumstances within an officer's knowledge. United States v. Greene, 783 F.2d 1364, 1367 (9th Cir. 1986). This court reviews probable cause findings de novo, but reviews the underlying factual findings for clear error. Id.

The district court found "overwhelming evidence" the Secret Service had probable cause to believe that the tan Audi was used to transport contraband by considering the following. On January 13, 1986, police apprehended Mark Mango after he tried to pass a counterfeit $20 bill at Burger King. After waiving his Miranda rights, Mango stated he and Messina had driven to the Burger King in Messina's tan Audi. Mango also said Messina had given him the counterfeit bills.

Later the same night, three boys saw Messina place a paper bag full of counterfeit bills into an abandoned automobile. The next day, Secret Service agents found a tan Audi registered to Messina at a repair shop. Before the Secret Service seized the car without a warrant two days later, it also learned that Messina had left the city.

We find that under the totality of circumstances probable cause existed to seize the automobile.

II

Appellant argues that even if probable cause existed, the automobile exception to the fourth amendment warrant requirement does not apply in this case. Under the automobile exception, warrantless searches and seizures of automobiles are valid so long as there is probable cause. California v. Carney, 471 U.S. 386 (1985), United States v. Bagley, 772 F.2d 482 (9th Cir. 1985).

Appellant challenges the automobile exception for two reasons. First, appellant contends that Carney and Bagley do not support a search in this case. Appellant points out that the automobiles in those cases were parked in public places, whereas Messina's automobile was parked on private property. This argument lacks merit. We have upheld warrantless searches and seizures of automobiles on private property. See, e.g., United States v. Hamilton, 792 F.2d 837 (9th Cir. 1986). See also United States v. Markham, 844 F.2d 366 (6th Cir. 1988).

Second, appellant, noting that the Court justified the automobile exception partly because of the reduced expectation of privacy in an automobile, California v. Carney, 471 U.S. 386 (1985), argues that he had a higher expectation of privacy because he entrusted his Audi with a repair shop. The district court found that Messina had the same, if not lesser, expectation of privacy than if his car had been parked in a public street because a repair person would presumably have access to the cabin, the engine area, and the trunk. We agree.

Because the initial seizure was valid, the subsequent search of the automobile which led to the discovery of safe deposit box keys is also valid. See United States v. Johnson, 820 F.2d 1065 (9th Cir. 1986).

III

Appellant also maintains he received ineffective assistance of counsel. Specifically, appellant claims that counsel improperly conceded the probable cause issue at the suppression hearing.

To demonstrate ineffective assistance of counsel, appellant must show (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that he was prejudiced by his counsel's performance. Strickland v. Washington, 466 U.S. 688 (1984). Counsel "is strongly presumed to have rendered effective assistance." Id. at 690.

Whether counsel, by not contesting the probable cause issue, actually conceded it is unclear from the record before us. In any case, we find that counsel's calculated decision not to vigorously contest a losing issue was a reasonable one. We therefore find counsel's representation did not fall below an objective standard of reasonableness.

AFFIRMED.