United States v. Jose Nunez ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50131
Plaintiff-Appellee, D.C. Nos.
2:19-cr-00212-SVW-2
v. 2:19-cr-00212-SVW
JOSE LUIS NUNEZ, AKA Corps,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted August 2, 2022**
Pasadena, California
Before: CALLAHAN and H. THOMAS, Circuit Judges, and HUMETEWA,***
District Judge.
Jose Nunez appeals his conviction for unlawful possession of firearms and
ammunition in violation of 18 U.S.C. § 922(g)(1). In the alternative, he challenges
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Diane J. Humetewa, United States District Judge for
the District of Arizona, sitting by designation.
the district court’s imposition of an electronic search condition as part of his
supervised release conditions. We have jurisdiction under 18 U.S.C. § 3742 and
28 U.S.C. § 1291, and we affirm.
1. Nunez first argues that the district court erred in denying his motion to
suppress evidence of firearms and ammunition recovered by law enforcement
officers during a protective sweep of his house. Nunez claims the search violated
the Fourth Amendment because the deputies did not have a reasonable belief that
any dangerous individuals might be in the house when they conducted the sweep.
Alternatively, assuming some form of protective sweep was justified, Nunez
argues the deputies exceeded the permissible scope of the sweep by entering his
bedroom. We review a district court’s denial of a motion to suppress de novo and
any underlying factual findings for clear error. United States v. Wilson, 13 F.4th
961, 967 (9th Cir. 2021). The ultimate determination of whether there was
reasonable suspicion to conduct a warrantless search is reviewed de novo. Ornelas
v. United States, 517 U.S. 690, 699 (1996).
The Fourth Amendment protects the right to be free from “unreasonable
searches and seizures.” U.S. Const. amend. IV. “The Fourth Amendment permits
a properly limited protective sweep in conjunction with an in-home arrest when the
searching officer possesses a reasonable belief based on specific and articulable
facts that the area to be swept harbors an individual posing a danger to those on the
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arrest scene.” Maryland v. Buie, 494 U.S. 325, 337 (1990). “[A] protective sweep,
aimed at protecting the arresting officers, if justified by the circumstances, is
nevertheless not a full search of the premises, but may extend only to a cursory
inspection of those spaces where a person may be found.” Id. at 335.
Here, the record demonstrates that the deputies who conducted the sweep
watched an armed known gang member enter Nunez’s house, heard a commotion
inside the house, and saw the gang member leave without the weapon.
Subsequently, two other gang members left the house, and those two individuals
could not confirm to the deputies whether anyone else was in the house. Based on
these specific and articulable facts, the deputies had a reasonable belief that there
may have been people in the home who had access to at least one firearm and thus
posed a threat to the deputies’ safety.
Further, the deputies did not exceed the permissible scope of the protective
sweep because they only briefly and cursorily searched the home, including
Nunez’s bedroom. While the separate bedroom at the back of the property was
accessible only by an exterior door, it was not obvious to the deputies observing
from the street at the time that this was the only access point. Nunez does not
otherwise explain why it would have been unreasonable to believe that an armed
individual could have been hiding in the bedroom, particularly given the inability
of the occupants of the house to confirm that there were no other individuals
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present on the property. Because the search did not violate the Fourth
Amendment, we affirm the district court’s denial of Nunez’s motion to suppress.
2. The government argues that even if the district court erred in finding
that the officers’ search was conducted pursuant to a valid protective sweep, we
should still affirm the denial of the motion to suppress on the alternate ground that
Nunez’s firearms and ammunition would have been inevitably discovered.1 The
inevitable discovery doctrine is an exception to the exclusionary rule that applies
“[i]f the prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful
means.” Nix v. Williams, 467 U.S. 431, 444 (1984).
We agree with the government that the doctrine applies here. The deputies
involved in the protective sweep explained in their declarations that had they not
conducted the sweep, they still would have sought a search warrant pursuant to
“standard departmental operating procedures.” The district court found there was
likely probable cause for a warrant authorizing the search of the house even
without reliance on the guns seized during the protective sweep. Indeed, the
1
While the district court did not base its holding on this ground, we “may affirm
the denial of [a] motion on any basis supported in the record,” even if not relied
upon by the district court. United States v. Lemus, 582 F.3d 958, 961 (9th Cir.
2009) (quotations and citation omitted).
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deputies did ultimately seek and obtain a search warrant, the execution of which
uncovered additional ammunition not found during the officers’ initial sweep.
Our prior decision in United States v. Lundin, 817 F.3d 1151 (9th Cir. 2016),
is distinguishable. There, we rejected the defendant’s argument that the inevitable
discovery doctrine applied and excused the officers’ failure to obtain a warrant
because the officers knew they had probable cause to arrest the defendant before
ever showing up at the house, and thus could have sought a warrant in advance. Id.
at 1162. By contrast, the deputies here did not arrive at Nunez’s house with the
intent to arrest Nunez or search his house. It was only after Gudino ran from
police into Nunez’s home while carrying a weapon, and exited the house without
the weapon and after a commotion, that the deputies developed probable cause to
believe that evidence of a crime would be found inside. The deputies here could
not have anticipated that this sequence of events would occur prior to their attempt
to detain Gudino, and thus they did not have an advance opportunity to obtain a
warrant like the officers in Lundin did.
For these reasons, we affirm the district court’s denial of Nunez’s motion to
suppress the evidence on the alternative ground that Nunez’s firearms and
ammunition would have been inevitably discovered during a subsequent lawful
search.
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3. Nunez next argues that the district court abused its discretion in
imposing a condition of release permitting law enforcement officers to search his
property, including electronic devices and communications, upon reasonable
suspicion that Nunez violated the terms of his supervised release. Nunez also
argues that the district court plainly erred by not adequately explaining its
reasoning for imposing the condition. We typically review the imposition of
conditions of supervised release for abuse of discretion. United States v. Wolf
Child, 699 F.3d 1082, 1089 (9th Cir. 2012). However, we review Nunez’s
contention that the district court erred by failing to provide an explanation for plain
error because Nunez did not object on this ground at the time of sentencing. See
id.A supervised release condition need not relate to the offense conduct, so
long as it is reasonably related “to the goals of deterrence, protection of the public,
and rehabilitation” of the offender. United States v. Weber, 451 F.3d 552, 558 (9th
Cir. 2006) (quoting United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003)).
Further, such conditions must not infringe on the defendant’s liberty more than is
reasonably necessary. Id. The district court need not fully articulate the reasoning
behind every supervised release condition if “we can determine from the record
whether the court abused its discretion.” United States v. Betts, 511 F.3d 872, 876
(9th Cir. 2007). Only if the condition implicates a “particularly significant liberty
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interest” must the district court support its decision with record evidence that the
condition is necessary. Weber, 451 F.3d at 561.
We find that the district court did not abuse its discretion in imposing the
electronic search condition because, given Nunez’s criminal history and the fact
that he committed this violation while on supervised release for another crime, the
record demonstrates that the condition is reasonably related to several of the
relevant factors including deterrence, rehabilitation, and protection of the public.
18 U.S.C. §§ 3583(d)(1), 3553(a)(2)(B)–(D); see also United States v. Cervantes,
859 F.3d 1175, 1184 (9th Cir. 2017) (upholding suspicionless search condition in
part because the defendant engaged in the relevant conduct while already on
supervised release), as amended on denial of reh’g and reh’g en banc (Sept. 12,
2017). Further, the search condition does not infringe on Nunez’s liberty more
than reasonably necessary because any search under this provision may only be
conducted upon reasonable suspicion that Nunez has violated the terms of his
release. Additionally, although Nunez argues that his offense and criminal history
did not include technology-related offenses, a condition does not need to relate to
the offense conduct so long as it satisfies a statutory goal. United States v. Bare,
806 F.3d 1011, 1017 (9th Cir. 2015). Thus, the district court did not abuse its
discretion in imposing the condition.
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Nunez also fails to establish that the district court plainly erred by not
providing an explanation for imposing the condition because Nunez has not
demonstrated that the condition—which requires that a law enforcement officer
have reasonable suspicion before conducting any search—rises to the level of the
narrow class of particularly significant liberty interests that require such an
explanation before being imposed. See, e.g.¸ Wolf Child, 699 F.3d at 1092
(holding that condition infringing a defendant’s right to associate with an intimate
family member implicated a significant liberty interest); United States v. Williams,
356 F.3d 1045, 1055 (holding that a condition forcing a person to take
antipsychotic medication was an infringement on a significant liberty interest).
The judgment is AFFIRMED.2
2
The Social Justice League Foundation (SJLF) filed a motion for leave to file an
amicus brief in support of Nunez. While both parties have consented to the filing,
the Foundation requires leave from the court because it is not timely. See Fed. R.
App. P. 29(a)(6). We grant the motion. However, the brief seeks to introduce new
facts outside of the record and advance arguments not raised by the
parties. Because we do not entertain legal issues raised for the first time in an
appeal by a party appearing as an amicus, Pres. Coal., Inc. v. Pierce, 667 F.2d 851,
862 (9th Cir. 1982), we decline to consider these arguments.
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