United States v. Ped, 18-50179

• Decision Date: 15 November 2019
• Docket Number: No. 18-50179,18-50179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lee PED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

943 F.3d 427

UNITED STATES of America, Plaintiff-Appellee,

v.Anthony Lee PED, Defendant-Appellant.

No. 18-50179

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 9, 2019 Pasadena, California

Filed November 15, 2019

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.

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

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 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 Wilson's 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 Wilson's move to Newbury Park, the officers went to the Eliot Street address. As they approached the house, they heard a commotion inside, pushed open the door, and saw Ped holding a methamphetamine pipe. Both Ped and his mother told the officers that Wilson no longer lived there, but the officers disbelieved them and searched the residence anyway. The search turned up seven firearms; under questioning, Ped admitted that the weapons were his and that he had previously been convicted of a felony.

A grand jury indicted Ped on three counts, including being a felon in possession of a firearm, in violation of section 922(g)(1). After the district court denied a motion to suppress the evidence found in his house, Ped entered into a conditional plea agreement in which he pleaded guilty to the section 922(g)(1) count but retained the right to appeal the denial of the suppression motion. He was sentenced to 70 months of imprisonment, to be followed by three years of supervised release. We have jurisdiction over his appeal under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II

We begin by considering the district court's denial of the motion to suppress, which we review de novo. See United States v. Johnson , 875 F.3d 1265, 1273 (9th Cir. 2017). Where, as here, the police acted without a warrant, the government has the burden of showing that the search was lawful. See United States v. Marshall , 488 F.2d 1169, 1186 (9th Cir. 1973) ; see also United States v. Carhee , 27 F.3d 1493, 1496 (10th Cir. 1994). We conclude that the government carried that burden.

The Fourth Amendment protects "[t]he right of the people to be secure in their ... houses ... against unreasonable searches and seizures," U.S. Const. amend. IV, and it is a "basic principle of Fourth Amendment law ... that searches and seizures inside a home without a warrant are presumptively unreasonable," Kentucky v. King , 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (citation omitted). Parolees, however, "have severely diminished expectations of privacy by virtue of their status," Samson v. California , 547 U.S. 843, 852, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), and they may be subject to warrantless searches of their homes without a warrant or suspicion of wrongdoing. Cuevas v. De Roco , 531 F.3d 726, 732 (9th Cir. 2008) (per curiam). That is true even if other people also live there. United States v. Bolivar , 670 F.3d 1091, 1092–93, 1096 (9th Cir. 2012) ; see also Samson , 547 U.S. at 856–57, 126 S.Ct. 2193. But the police must "be reasonably sure that they are at the right house"; a parolee's diminished expectation of privacy cannot "justif[y] the entry into and search of a third person's house to search for the parolee." Motley v. Parks , 432 F.3d 1072, 1079 (9th Cir. 2005) (en banc), overruled in part on other grounds by United States v. King , 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam). To protect the interests of third parties, "officers must have probable cause to believe that the parolee is a resident of the house to be searched." Id. at 1080 ; see also United States v. Grandberry , 730 F.3d 968, 973 (9th Cir. 2013).

This case therefore turns on whether the officers had probable cause to believe that Wilson lived at Ped's house. "[P]robable cause as to residence exists if an officer of ‘reasonable caution’ would believe, ‘based on the totality of [the] circumstances,’ that the parolee lives at a particular residence." Grandberry , 730 F.3d at 975 (quoting United States v. Diaz , 491 F.3d 1074, 1077–78 (9th Cir. 2007) ). In this case, the most significant circumstance establishing probable cause was the list provided to the police by the probation officer, which stated that Wilson had reported living at the Eliot Street address. In Motley , we held that officers acted reasonably when they relied on a similar list. 432 F.3d at 1080–82. The same is true here.

Ped emphasizes that the list in this case was three months old, while the one in Motley was only one month old. We do not question that at a certain point, a reported address would become so old that it would no longer be reasonable for officers to rely on it. But nothing about Wilson's reported address suggested that it was likely to be transitory, and although a person living in a house with family members might move away in less than three months, it would be reasonable to expect that he would still live there. See United States v. Harper , 928 F.2d 894, 896–97 (9th Cir. 1991) (holding that officers had probable cause to believe that the parolee lived in a particular house because, among other factors, the parolee's family rented the house and two of his brothers lived there), overruled in part on other grounds by King , 687 F.3d at 1189.

In addition, the staleness of information establishing probable cause must be evaluated "in light of the particular facts of the case," and here those facts include substantial information corroborating the listed address. United States v. Pitts , 6 F.3d 1366, 1369 (9th Cir. 1993) (quoting United States v. Greany , 929 F.2d 523, 525 (9th Cir. 1991) ). Specifically, the officers reasonably relied on their previous visits to the Eliot Street address, in which they had learned that Wilson lived there. Those facts supported the reasonableness of their belief that they were at the right house.

Ped points out that, just days before the search, Wilson had told his probation officer that he would be living in Newbury Park. The officers who conducted the search did not know that, however, so it is not relevant to the assessment of probable cause, which takes into account "the totality of the circumstances known to the officers at the time of the search." Lacey v. Maricopa County , 693 F.3d 896, 918 (9th Cir. 2012) (en banc) (quoting United States v. Patayan Soriano , 361 F.3d 494, 505 (9th Cir. 2004) ); see also Heien v. North Carolina , 574 U.S. 54, 60–61, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) ("To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.").

To be sure, the officers could have conducted additional inquiries to confirm that Wilson still lived at Ped's house. But because the officers had a reasonable basis for believing that Wilson lived there, they were not required to take further steps to verify his last reported address. Cf. Cuevas , 531 F.3d at 733–34 (concluding that officers lacked probable cause when they had not conducted surveillance or otherwise confirmed a parolee's stale address). We have held that officers must conduct further inquiries before searching residences that were not previously reported by the parolee.

Grandberry , 730 F.3d at 977 ; United States v. Howard , 447 F.3d 1257, 1268 (9th Cir. 2006), overruled in part on other grounds by King , 687 F.3d at 1189. Indeed, in Grandberry , we faulted officers for searching a residence...