943 F.3d 427 (9th Cir. 2019), 18-50179, United States v. Ped

Docket Nº:18-50179
Citation:943 F.3d 427
Opinion Judge:MILLER, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lee PED, Defendant-Appellant.
Attorney:Gia Kim (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant. Jake D. Nare (argued), Assistant United States Attorney; Dennise D. Willett, Chief, Santa Ana Branch; Nicola T. Han...
Judge Panel:Before: John B. Owens, Ryan D. Nelson, and Eric D. Miller, Circuit Judges.
Case Date:November 15, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
FREE EXCERPT

Page 427

943 F.3d 427 (9th Cir. 2019)

UNITED STATES of America, Plaintiff-Appellee,

v.

Anthony Lee PED, Defendant-Appellant.

No. 18-50179

United States Court of Appeals, Ninth Circuit

November 15, 2019

Argued and Submitted September 9, 2019 Pasadena, California

Page 428

[Copyrighted Material Omitted]

Page 429

Gia Kim (argued), Deputy Federal Public Defender; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

Jake D. Nare (argued), Assistant United States Attorney; Dennise D. Willett, Chief, Santa Ana Branch; Nicola T. Hanna, United States Attorney; United States Attorney’s Office, Santa Ana, California; for Plaintiff-Appellee.

Appeal from the United States District Court for the Central District of California, John A. Kronstadt, District Judge, Presiding, D.C. No. 2:16-cr-00775-JAK-1

Before: John B. Owens, Ryan D. Nelson, and Eric D. Miller, Circuit Judges.

SUMMARY[*]

Criminal Law

The panel affirmed Anthony Lee Ped's conviction for being a felon in possession of a firearm, vacated three conditions of supervised release, and remanded for modification of the conditions.

The panel held that the district court did not err in denying Ped's motion to suppress evidence that he possessed a firearm, which was found in a search of his home. The panel held that officers had probable cause to believe that Ped's brother, Nick Wilson, lived at Ped's house, most significantly because Wilson's probation officer had provided to the police a list stating that Wilson had reported living at that address. The panel explained that the officers reasonably relied on the list, notwithstanding that it was three months old, where there was nothing about Wilson's reported address suggesting that it was likely to be transitory and there was substantial information corroborating the listed address. The panel wrote that Ped's and his mother's statements when the officers arrived at the house that Wilson no longer lived there did not constitute convincing evidence that undermined the information the officer previously had received. The panel rejected Ped's argument, raised for the first time on appeal, that the search violated California's prohibition against arbitrary, capricious, or harassing searches.

The panel vacated as unconstitutionally vague under United States v. Evans, 883 F.3d 1154 (9th Cir. 2018), three conditions of supervised release, and remanded to the district court with instructions to impose whatever alternative conditions it deems appropriate. Because rewriting a provision of a sentence - as would be required here to achieve the purposes of the original conditions in a way that is not unconstitutionally vague - would exceed this court's authority under 18 U.S.C. § 3742(f)(1), the panel did not need to consider how § 3742(f)(1) affected this court's authority to modify a sentence without remanding.

OPINION

MILLER, Circuit Judge:

Anthony Lee Ped pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He appeals the denial of his motion to suppress the evidence that he possessed a firearm, which was found in a search of his home. He also challenges several conditions of supervised release imposed as part of his sentence. We conclude that the search was lawful but the supervised-release conditions are not, so we affirm the conviction but remand for modification of the conditions.

I

In April 2016, Ped’s brother, Nick Wilson, was released from the custody of the California Department of Corrections and placed on post-release community supervision, a status similar to parole. See Cal. Penal Code § 3450 et seq. The terms of that supervision permitted officers to search Wilson’s "residence and any other property under [his] control ... without a warrant day or night." Upon his release, Wilson informed his probation officer that he lived at his family’s home— which is also Ped’s home— on Eliot Street in Santa Paula, California. Soon thereafter, officers conducted a warrantless search of the house. Although Wilson was not present that day, officers spoke with his mother and confirmed that he lived there. Later, officers went to the Eliot Street address in response to a family disturbance call. During that visit, they met Ped and his mother, and they again confirmed that Wilson lived there.

In June 2016, Wilson’s probation officer provided the Santa Paula Police Department with a list of names and addresses of persons living in Santa Paula who were subject to supervision. The list included Wilson and the Eliot Street address. The next day, however, Wilson was arrested on unrelated charges and held at the Ventura County Jail, where he remained for three

Page 430

months. Upon his release, he told the probation officer that he would be living in Newbury Park, California. The probation officer did not independently verify that new address, nor did he update the list he had previously given the Santa Paula Police Department.

About ten days after Wilsons release, officers of the Santa Paula Police Department— including one of the officers involved in the response to the earlier family disturbance call— randomly selected Wilson for a routine search of individuals on supervised release. Not knowing of Wilsons move to...

To continue reading

FREE SIGN UP