744 Fed.Appx. 360 (9th Cir. 2018), 16-50408, United States v. Franco
|Citation:||744 Fed.Appx. 360|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Pedro Aurelio FRANCO, AKA Pedro Franco, Defendant-Appellant.|
|Attorney:||Benjamin Holley, Assistant U.S. Attorney, Helen H. Hong, Assistant U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee John Owen Lanahan, Attorney, Law Office of John Lanahan, San Diego, CA, for Defendant-Appellant|
|Judge Panel:||Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY, District Judge.|
|Case Date:||August 03, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted March 9, 2018 Pasadena, California
Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1. See also U.S.Ct. of App. 9th Cir. Rule 36-3.
Appeal from the United States District Court for the Southern District of California, Thomas J. Whelan, District Judge, Presiding, D.C. No. 3:15-cr-02585-W-1
Benjamin Holley, Assistant U.S. Attorney, Helen H. Hong, Assistant U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee
John Owen Lanahan, Attorney, Law Office of John Lanahan, San Diego, CA, for Defendant-Appellant
Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,[*] District Judge.
Pedro Aurelio Franco (Pedro)1 was convicted of two counts of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g), pursuant to a conditional guilty plea. In his present appeal, Pedro challenges the district courts denial of his motion to suppress two firearms that officers seized from a safe in a locked closet in his locked bedroom, arguing that the search violated his Fourth Amendment rights.
"We review the lawfulness of a search and seizure— a mixed question of law and fact— de novo." United States v. Scott, 705 F.3d 410, 414-15 (9th Cir. 2012) (citing United States v. Mendoza-Ortiz, 262 F.3d 882, 885 (9th Cir. 2001) ). We review the district courts underlying findings of fact for clear error. Id.
1. Pedro contends that his brothers, Claudio Francos, probation release condition that allowed officers to search Claudios person, property, and place of residence without reasonable cause, is invalid under the Fourth Amendment, and therefore, the entire search of the shared Franco home was unconstitutional. We need not reach this issue. Our inquiry is focused on the reasonableness of the search of Pedros
bedroom based on the totality of the circumstances, including Pedros reasonable expectation of privacy and the states interests. See United States v. Lara, 815 F.3d 605, 610-12 (9th Cir. 2016) (evaluating the reasonableness of a probation search condition based on the balance of the intrusion upon an individuals privacy and the degree to which the search is needed for the promotion of legitimate state interests); see also United States v. Knights, 534 U.S. 112, 117-18, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (evaluating the reasonableness of the search condition in light of the totality of the circumstances, including the probationers acceptance of the search condition). As discussed below, we conclude the search of Pedros bedroom was not reasonable under the Fourth Amendment.
2. Pedro argues that the search of his locked bedroom and closet cannot be justified as permissible under the scope of Claudios probation search condition. In a search of a residence that is shared by an individual on probation and an individual not on probation, a valid probation search condition "authorizes the police to search common areas of th[e shared]...
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