744 Fed.Appx. 360 (9th Cir. 2018), 16-50408, United States v. Franco

Docket Nº:16-50408
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
 
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Page 360

744 Fed.Appx. 360 (9th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Pedro Aurelio FRANCO, AKA Pedro Franco, Defendant-Appellant.

No. 16-50408

United States Court of Appeals, Ninth Circuit

August 3, 2018

Argued and Submitted March 9, 2018 Pasadena, California

Editorial Note:

Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1.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.

Page 361

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.

MEMORANDUM[**]

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 court’s 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 court’s underlying findings of fact for clear error. Id.

1. Pedro contends that his brother’s, Claudio Franco’s, probation release condition that allowed officers to search Claudio’s 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 Pedro’s

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bedroom based on the totality of the circumstances, including Pedro’s reasonable expectation of privacy and the state’s 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 individual’s 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 probationer’s acceptance of the search condition). As discussed below, we conclude the search of Pedro’s 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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