UNITED STATES of America, Petitioner-Appellee, v. Miguel BARON, Respondent-Appellant.
No. 15-50265
United States Court of Appeals, Ninth Circuit
May 19, 2016
650 Fed. Appx. 425
Before: PREGERSON, BYBEE, and N.R. SMITH, Circuit Judges.
MEMORANDUM *
Miguel Baron appeals the district court‘s denial of his motion to suppress evidence seized during a warrantless probation search. We affirm. On balance, the search of Baron‘s truck was reasonable.1
The probation search of Baron‘s truck did not violate the Fourth Amendment. In determining whether the search was reasonable, “we balance, ‘on the one hand, the degree to which [the search] intrudes upon an individual‘s privacy and, on the other, the degree to which [the search] is needed for the promotion of legitimate governmental interests.‘” United States v. Lara, 815 F.3d 605, 610 (9th Cir. 2016) (alterations in original) (quoting United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)).
Baron‘s privacy interest was minimal. First, as a probationer, Baron‘s privacy interest was “significantly diminished.” See Knights, 534 U.S. at 119-20. Second, Baron‘s vehicle, where the gun was found, was subject to “a reduced expectation of privacy.” See California v. Carney, 471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). Third, Baron‘s probation terms “unambiguously informed” him that his vehicle was subject to search. See Knights, 534 U.S. at 119.
The government‘s interest, on the other hand, was significant. “Probationary searches advance at least two related government interests—combating recidivism and helping probationers integrate back into the community.” Lara, 815 F.3d at 612. “These are important interests whose strength in a particular case varies depending on the degree to which the government has a specific reason to suspect that a particular probationer is reoffending or otherwise jeopardizing his reintegration into the community.” Id. Here, the government had a “specific reason” to make the search, because Baron‘s name had come up several times prior to the search in connection with either shootings or thefts. See id.
AFFIRMED.
UNITED STATES of America, Petitioner-Appellee, v. WEN-BING SOONG, Respondent-Appellant; UNITED STATES of America, Petitioner-Appellee, v. Hsin-Jung Shirley Soong, Respondent-Appellant.
Nos. 14-15987, 14-15988
United States Court of Appeals, Ninth Circuit
Submitted May 10, 2016; Filed May 19, 2016
650 Fed. Appx. 426
Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW,** Senior District Judge.
Steven Ray Mather, Kajan, Mather & Barish, Beverly Hills, CA, Cheryl A. Orr, Esquire, Musick Peeler & Garrett, LLP, Los Angeles, CA, for Respondent-Appellant.
MEMORANDUM ***
Taxpayers Wen-Bing Soong and Hsin-Jung Shirley Soong, husband and wife, appeal from the district court‘s order denying their motion to dismiss two related petitions to enforce Internal Revenue Service (IRS) administrative summonses concerning their income tax liabilities for 2004 through 2007, and its order granting the petitions. In both instances, they challenge personal jurisdiction based on the alleged inadequacy of service of process. We have jurisdiction under
The Soongs are lawful permanent residents of the United States who own a home in Union City, California. Unbeknownst to the IRS when it attempted to serve them at that home with summonses to produce information and records, and contrary to numerous documents sent to the IRS and other government agencies, the Soongs—according to declarations they filed after the IRS‘s attempts at service—had departed the United States for Taiwan and claimed to not intend to return. The Soongs contend that the district court lacked personal jurisdiction because the IRS failed to serve the district court summonses in Taiwan according to
1. Under
leaving a copy of the summons and complaint at the person‘s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.
The IRS‘s evidence included public records from Alameda County; California Department of Motor Vehicle records; and federal tax forms, state tax forms, and correspondence with both federal and state authorities sent by the Soongs, in which they repeatedly identified their Union City address as their residence.1 The IRS also presented evidence that it had been corresponding by mail with the Soongs at their Union City address for months preceding the issuance of the summonses. The Soongs did not address the government‘s robust evidence or identify any communication to the IRS that their Union City address was no longer their dwelling house, usual place of abode, or usual mailing address, but instead merely offered declarations stating that Wen Bing and Hsin Jung had not been physically present in the United States since July 2007 and September 2009, respectively, and had opted to make Taiwan their “permanent home.” Their adult son, Henry Soong, submitted a declaration to corroborate his parents’ declarations, but he failed to contest the government‘s testimony that an IRS agent had, after first attempting to personally serve the summonses, delivered them to Henry at the Union City address and informed him of the contents of the delivery, and that he had informed the IRS agent that his parents were not there because they were currently “traveling.”
The evidence supported the district court‘s conclusions that the Soongs’ Union City address was one of their current dwellings, and that the IRS had effectively served the summonses and petitions to enforce the summonses under
2. “To obtain enforcement of a[n IRS] summons, the Government has the initial burden of establishing a prima facie case showing that: (1) the investigation will be conducted for a legitimate purpose, (2) the inquiry is relevant to the purpose, (3) the information sought is not already within the IRS‘s possession, and (4) the administrative steps required by the IRS Code have been followed.” United States v. Richey, 632 F.3d 559, 564 (9th Cir. 2011) (citing United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964)). “The government‘s burden is a slight one, and may be satisfied by a declaration from the investigating agent that the ... requirements have been met.” Id. (quoting United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir. 1993)). We review a district court‘s summons-enforcement decisions for clear error. Id. at 563. Substantial compliance with
Here, an IRS agent averred that all administrative steps required by the Internal Revenue Code for issuance of the summonses had been taken, and the district court agreed. The Soongs do not contest that the IRS satisfied the substantive requirements for enforcement of the summonses, and instead argue only that IRS‘s service of the summonses was inadequate because they no longer lived at the Union City address so could not be served there. For essentially the same reasons supporting the district court‘s service-of-process determination, the district court did not clearly err in holding that the Soongs had failed to rebut the IRS‘s showing that the summonses were delivered to the Soongs in Union City at their “last and usual place of abode.”
In any event, the Soongs were not prejudiced by any alleged defect in the service of the summonses under
AFFIRMED.