Argued
and Submitted September 9, 2019 Pasadena, California
Appeal
from the United States District Court No. 2:16-cr-00775-JAK-1
for the Central District of California John A. Kronstadt,
District Judge, Presiding
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.
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 18 U.S.C. § 3742(f)(1), the
panel did not need to consider how § 3742(f)(1) affected
this court's authority to modify a sentence without
remanding.
OPINION
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.
...