and Submitted January 13, 2017 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 8:15-cr-00006-DOC-1 David O.
Carter, District Judge, Presiding
Michael Tanaka (argued), Deputy Federal Public Defender,
Office of the Federal Public Defender, Los Angeles,
California, for Defendant-Appellant.
Takla (argued), Assistant United States Attorney, Terrorism
and Export Crimes Section; Patricia A. Donahue, Chief,
National Security Division; United States Attorney's
Office, Santa Ana, California; for Plaintiff-Appellee.
Before: Stephen S. Trott, M. Margaret McKeown, and Paul J.
Watford, Circuit Judges.
panel affirmed a conviction and sentence in a case in which
police officers conducted a warrantless, suspicionless search
of the defendant's hotel room pursuant to a condition of
the mandatory supervision the defendant was serving for the
final year of his three-year California county jail sentence.
panel held that for Fourth Amendment purposes, mandatory
supervision is more akin to parole than probation, and that
the search was authorized under the search condition because
the officers had probable cause to believe that the hotel
room constituted "premises" under the
defendant's control. Rejecting the defendant's
contention that the officers violated California's
prohibition against arbitrary, capricious, or harassing
searches, the panel noted that, without something more, a
suspicionless search is lawful if authorized by a
parolee's search condition. Concluding that no Fourth
Amendment violation was shown, the panel held that the
district court properly denied the defendant's motion to
suppress the evidence found in his hotel room.
panel held that the defendant had adequate notice of a
suspicionless search condition of supervised release imposed
in connection with his federal sentence, and that the facts
of the case justified the district court's belief that
the condition would be necessary to mitigate the
exceptionally high risk that the defendant would re-offend
during his term of supervised release.
WATFORD, Circuit Judge.
Cervantes was convicted in California state court of several
non-violent felonies and sentenced to three years in county
jail. He served the last year of that sentence on
"mandatory supervision, " a form of conditional
release that is similar to parole. As a condition of
mandatory supervision, Cervantes agreed to submit to
warrantless, suspicionless searches of his person, his
residence, and any "premises" under his control. We
must decide whether a warrantless, suspicionless search of a
hotel room Cervantes rented with his girlfriend violated the
2014, Cervantes pleaded guilty to felony counterfeiting and
drug offenses in California state court. His plea agreement
called for him to receive a "divided" (or
"split") sentence under California Penal Code
§ 1170(h)(5). That provision, enacted as part of
California's Criminal Justice Realignment Act of 2011,
requires certain low-level felony offenders to serve their
terms of imprisonment in county jail rather than state
prison. See People v. Scott, 58 Cal.4th 1415,
1418-19 (2014). Section 1170(h)(5) authorizes the sentencing
court to "suspend execution of a concluding portion of
the term for a period selected at the court's
discretion." Cal. Penal Code § 1170(h)(5)(A). The
suspended portion of the term is known as "mandatory
supervision, " and it commences upon the defendant's
release from custody. § 1170(h)(5)(B). Under the
statute, offenders on mandatory supervision are supervised in
the same manner as offenders on probation: "During the
period of mandatory supervision, the defendant shall be
supervised by the county probation officer in accordance with
the terms, conditions, and procedures generally applicable to
persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court."
state court sentenced Cervantes to three years in county
jail. Pursuant to § 1170(h)(5), the court divided the
sentence into two years of imprisonment followed by one year
of mandatory supervision. As part of his plea bargain,
Cervantes agreed to abide by certain conditions during the
period of mandatory supervision, each of which the court
formally imposed at sentencing. One of those conditions was a
warrantless, suspicionless search condition, which provided
as follows: "Submit your person and property including
any residence, premises, container, or vehicle under your
control, to search and seizure at any time of the day ...