UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY LEE PED, Defendant-Appellant.
No. 18-50179
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
November 15, 2019
D.C. No. 2:16-cr-00775-JAK-1
FOR PUBLICATION
OPINION
Appeal from the United States District Court for
Argued and Submitted September 9, 2019 Pasadena, California
Filed November 15, 2019
Before: John B. Owens, Ryan D. Nelson, and Eric D. Miller, Circuit Judges.
Opinion by Judge Miller
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
COUNSEL
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.
OPINION
MILLER, Circuit Judge:
Anthony Lee Ped pleaded guilty to being a felon in possession of a firearm, in violation of
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
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
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
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,”
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 (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 different from that reported on a six-month-old list, explaining that “there was no basis for doubting that Grandberry lived where he had reported he did.” 730 F.3d at 980. Here, too, the officers conducting the search at Eliot Street had no basis for doubting that Wilson lived there.
Ped argues that even if the officers had probable cause when they arrived at the house, it became unreasonable for them to proceed with a search once Ped and his mother told them that Wilson no longer lived there. We rejected just such an argument in Motley, reasoning that as long as the officers had information establishing probable cause, they were entitled to proceed unless “presented with convincing evidence that the information they had relied upon was incorrect.” Motley, 432 F.3d at 1082 (quoting Moore v. Vega, 371 F.3d 110, 118 (2d Cir. 2004)). Ped‘s and his mother‘s statements were hardly “convincing evidence“—neither Ped nor his mother provided an alternate address for Wilson, and Ped‘s effort to discourage the search came just moments after he had been seen with a methamphetamine pipe. Those statements, coming from “less-than-disinterested source[s], did not undermine the information the officers previously had received.” Id.; cf. Wesby v. District of Columbia, 816 F.3d 96, 107 (D.C. Cir. 2016) (Kavanaugh, J., dissenting from the denial of rehearing en banc) (“[I]n the heat of the moment, police officers are entitled to make reasonable credibility judgments and to disbelieve protests of innocence.“), rev‘d, 138 S. Ct. 577 (2018).
For the first time on appeal, Ped also asserts that the search was unreasonable because it violated California‘s prohibition against arbitrary, capricious, or harassing searches. See United States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017); People v. Reyes, 968 P.2d 445, 451 (Cal. 1998). In support of that theory, he notes that one of the officers had stated that “Wilson and his family are well-known” to the Santa Paula Police Department, and another officer expressed a desire to return to the house to search for more weapons. That evidence does not come close to satisfying Ped‘s burden of showing that “the officers conducted the search for an improper purpose, such as a desire to harass him or out of personal animosity toward him.” Cervantes, 859 F.3d at 1183. And it falls well short of establishing plain error that could be a basis for reversal in the absence of an objection below. See
III
As conditions of Ped‘s supervised release, the district court required that Ped “support his... dependents and meet other family responsibilities,” that he “work regularly at a lawful occupation,” and that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” Until recently, those conditions were standard terms recommended by the Sentencing Guidelines, but in United States v. Evans, 883 F.3d 1154 (9th Cir. 2018), we joined the Seventh Circuit in holding that they are unconstitutionally vague. Id. at 1162–64; see United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015); compare
In its brief, the government suggested that we rewrite the conditions and affirm the judgment as modified. Before oral argument, however, we directed the parties to address
The statutory text is unambiguous. To reiterate, it provides that if a “sentence was imposed in violation of law,” the court of appeals “shall remand the case for further sentencing proceedings.”
In our published decisions, we have declined to remand in only two circumstances. Neither is present here.
First, we have recognized our authority to adopt a narrow construction of conditions of supervised release if they are “‘readily susceptible’ to [a] limiting construction.” United States v. Gnirke, 775 F.3d 1155, 1166 (9th Cir. 2015); see also United States v. Quinzon, 643 F.3d 1266, 1272–73 (9th Cir. 2011). That approach is consistent with the statute because it does not involve our determining that the sentence was “imposed in violation of law.”
Second, we have sometimes stricken invalid provisions of a sentence without remanding. See, e.g., United States v. Hall, 912 F.3d 1224, 1226–27 (9th Cir. 2019) (per curiam); United States v. Peters, 470 F.3d 907, 909 (9th Cir. 2006) (per curiam); United States v. Long, 301 F.3d 1095, 1108 (9th Cir. 2002) (per curiam). In none of those cases did we discuss
The district court “is better suited to the job of crafting adequate but not overly restrictive conditions.” United States v. Sales, 476 F.3d 732, 738 (9th Cir. 2007). We therefore vacate supervised-release conditions five, six, and fourteen and remand to the district court with instructions to impose whatever alternative conditions it deems appropriate.
AFFIRMED in part, VACATED in part, and REMANDED.