United States v. Anthony Ped ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50179
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00775-JAK-1
ANTHONY LEE PED,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
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
2 UNITED STATES V. PED
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.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. PED 3
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.
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.
4 UNITED STATES V. PED
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. 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
UNITED STATES V. PED 5
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.
6 UNITED STATES V. PED
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 (2011) (citation omitted). Parolees, however, “have
severely diminished expectations of privacy by virtue of
their status,” Samson v. California, 547 U.S. 843, 852
(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. 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
UNITED STATES V. PED 7
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
8 UNITED STATES V. PED
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,
UNITED STATES V. PED 9
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
10 UNITED STATES V. PED
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 Fed. R. Crim. P.
52(b).
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 U.S.S.G. § 5D1.3(c) (2015) (recommending
standard conditions, including the language at issue here),
with U.S.S.G. § 5D1.3(c) (2016) (recommending amended
standard conditions). Ped now asks that the conditions be
corrected.
UNITED STATES V. PED 11
In his plea agreement, Ped waived the right to appeal any
conditions of supervised release set forth in General Order
05-02 of the district court, which covers the conditions at
issue here. We have held, however, that a plea agreement
does not affect our jurisdiction and that the government can
waive its ability to rely on an appeal waiver. United States v.
Jacobo Castillo, 496 F.3d 947, 954–57 (9th Cir. 2007) (en
banc). The government has done so here. And although Ped
did not object below, the government agrees that the
imposition of the conditions constituted plain error. We
therefore must vacate the unconstitutional conditions.
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
18 U.S.C. § 3742(f)(1), which provides that “[i]f the court of
appeals determines that . . . the sentence was imposed in
violation of law . . . , the court shall remand the case for
further sentencing proceedings with such instructions as the
court considers appropriate.” Upon further consideration,
the government changed its position and argued that a
remand is appropriate. We agree.
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.” 18 U.S.C. § 3742(f)(1) (emphasis
added). “The word ‘shall’ generally imposes a
nondiscretionary duty,” and nothing in section 3742(f)(1)
suggests that this statute is an exception. SAS Inst., Inc. v.
Iancu, 138 S. Ct. 1348, 1354 (2018). It follows that, as the
Supreme Court has observed, “a remand is required under
§ 3742(f)(1)” whenever the reviewing court concludes that
the sentence was imposed “in violation of law.” Williams v.
United States, 503 U.S. 193, 202 (1992); see also United
12 UNITED STATES V. PED
States v. Williams, 552 F.3d 592, 594 (7th Cir. 2009) (noting
that section 3742(f)(1) has cabined “[a]ny discretion we may
once have had to simply amend the judgment” without
remanding).
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.” 18 U.S.C. § 3742(f)(1).
Rather, in order to review the sentence, we must determine
what it means, and in doing so we appropriately apply the
principle that an interpretation that makes a provision valid
is to be preferred over one that would make it invalid. But
because the conditions of Ped’s supervised release are
identical to those we invalidated in Evans, no plausible
interpretation of the conditions could make them valid under
that decision. What is required here is a rewriting, not merely
a narrowing construction.
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 section 3742(f)(1) or consider how it affected our
authority to modify a sentence without remanding. Cf.
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170
(2004) (“Questions which merely lurk in the record, neither
UNITED STATES V. PED 13
brought to the attention of the court nor ruled upon, are not
to be considered as having been so decided as to constitute
precedents.”) (quoting Webster v. Fall, 266 U.S. 507, 511
(1925)). We need not consider that issue now because
whatever the scope of our authority to strike invalid
provisions of a sentence, correcting the invalid conditions in
this case would require us to do much more: We would have
to rewrite the conditions so as to achieve the purposes of the
original conditions in a way that is not unconstitutionally
vague. Rewriting a provision of a sentence exceeds our
authority under section 3742(f)(1). See Gnirke, 775 F.3d
at 1170 (M. Smith, J., concurring in the judgment) (“[I]t is
not our role as an appellate court to craft conditions of
supervised release.”).
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.