United States v. Franco, 080318 FED9, 16-50408

Docket Nº:16-50408
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PEDRO AURELIO FRANCO, AKA Pedro Franco, 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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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

NOT FOR PUBLICATION

Argued and Submitted March 9, 2018 Pasadena, California

Appeal from the United States District D.C. No. 3:15-cr-02585-W-1 Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding

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 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 (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 Claudio's 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] home, even if doing so...

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