United States v. Steven Cervantes ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50459
Plaintiff-Appellee,
D.C. No.
v. 8:15-cr-00006-DOC-1
STEVEN CERVANTES,
Defendant-Appellant. ORDER AND
AMENDED OPINION
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted January 13, 2017
Pasadena, California
Filed June 19, 2017
Amended September 12, 2017
Before: Stephen S. Trott, M. Margaret McKeown,
and Paul J. Watford, Circuit Judges.
Order;
Opinion by Judge Watford
2 UNITED STATES V. CERVANTES
SUMMARY*
Criminal Law
The panel filed (1) an order amending its opinion and
denying a petition for panel rehearing and rehearing en banc
and (2) an amended opinion affirming 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.
The 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.
The 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
*
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. CERVANTES 3
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.
COUNSEL
Michael Tanaka (argued), Deputy Federal Public Defender;
Hilary Potashner, Federal Public Defender; Office of the
Federal Public Defender, Los Angeles, California; for
Defendant-Appellant.
Mark 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.
ORDER
The opinion filed on June 19, 2017, and published at
859 F.3d 1175, is amended as follows:
At 859 F.3d at 1179, in the sentence beginning with the
phrase, delete the
following:

With this amendment, the panel unanimously votes to
deny the petition for panel rehearing. Judges McKeown and
Watford vote to deny the petition for rehearing en banc, and
Judge Trott so recommends. The full court has been advised
4 UNITED STATES V. CERVANTES
of the petition for rehearing en banc, and no judge requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35. The petition for panel rehearing and rehearing en banc,
filed August 2, 2017, is DENIED.
No further petitions for panel rehearing or rehearing en
banc will be entertained.
OPINION
WATFORD, Circuit Judge:
Steven 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 Fourth Amendment.
I
In 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
UNITED STATES V. CERVANTES 5
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.” Id.1
The 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 or night by any
law enforcement officer, probation officer, or mandatory
supervision officer with or without a warrant, probable cause
or reasonable suspicion.”
1
We have quoted the current version of the statute. The version in
effect at the time of Cervantes’ sentencing was slightly different, but the
differences are immaterial for our purposes.
6 UNITED STATES V. CERVANTES
In 2015, while serving his term of mandatory supervision,
Cervantes engaged in the conduct that led to his convictions
in this case. He and his girlfriend, Samanthe Farish, were
stopped by a police officer in Huntington Beach, California,
for jaywalking. In response to the officer’s questions,
Cervantes told the officer that he was on “probation” and
subject to a search condition. The officer obtained
identification from Cervantes and Farish, performed a records
check, and confirmed that Cervantes was indeed on
“probation” (actually mandatory supervision) and subject to
a search condition.
The officer searched Cervantes’ person and found a room
key to the Ayres Hotel in his pocket. Cervantes explained
that he and Farish were renting a room on the third floor of
the hotel, which was located a little less than two miles away.
Cervantes told the officer that he could not remember the
room number and that his personal belongings were in the
room. Nothing found during the search of Cervantes’ person
or disclosed during questioning gave the officer any reason to
suspect that Cervantes was engaged in criminal activity.
The officer let Cervantes and Farish go, without citing
them for jaywalking. However, unbeknownst to Cervantes or
Farish, the officer immediately drove to the Ayres Hotel to
search their room without obtaining a warrant. The officer
believed he had the authority to conduct this warrantless,
suspicionless search under the terms of Cervantes’ search
condition.
When the officer and two of his colleagues arrived at the
hotel, they spoke to a front-desk employee, who confirmed
that Farish had checked in with a male guest and rented a
room on the third floor using her credit card. Hotel
UNITED STATES V. CERVANTES 7
employees let the officers into the room; Cervantes and
Farish were still out. The officers searched the room and its
contents, except for any items that appeared to belong to a
woman. In plain view, they found counterfeit currency in
various stages of production and the equipment used to make
it. Shortly thereafter, officers located Cervantes inside a
Walgreens pharmacy and placed him under arrest.
The United States charged Cervantes with unlawfully
possessing counterfeit currency and images of counterfeit
currency, in violation of 18 U.S.C. §§ 472 and 474. He
moved to suppress the evidence seized from his hotel room
on the ground that the warrantless, suspicionless search of the
room violated the Fourth Amendment. The district court
denied the motion, concluding that Cervantes’ search
condition authorized the search and hence rendered it
reasonable.
Following a bench trial, the district court found Cervantes
guilty as charged. The court sentenced him to 21 months of
imprisonment followed by five years of supervised release.
As a condition of supervised release, the court required
Cervantes to submit to warrantless, suspicionless searches of
his person and property.
II
On appeal, Cervantes renews his contention that the
warrantless, suspicionless search of his hotel room violated
the Fourth Amendment. As it did below, the government
defends the legality of the search primarily by relying on the
search condition imposed during Cervantes’ term of
mandatory supervision.
8 UNITED STATES V. CERVANTES
A
For Fourth Amendment purposes, the Supreme Court has
divided offenders subject to search conditions into two
categories: those on probation and those on parole. Generally
speaking, parolees are entitled to less protection under the
Fourth Amendment than probationers. Samson v. California,
547 U.S. 843, 850 (2006). That is primarily because the State
has a stronger interest in supervising parolees than it does
probationers, given the more serious nature of the offenses
parolees have committed and the more serious risk of
recidivism they pose. Id. at 853–55; see also id. at 862(Stevens, J., dissenting). A court’s first task is usually to
determine which category an offender falls within, since that
determination will dictate the level of Fourth Amendment
protection he receives.
Mandatory supervision is neither probation nor parole; on
the continuum of punishments, it falls somewhere in between.
That means we have two options here: We can create a new
third category of offenders altogether, or we can decide that
mandatory supervision is more akin to either probation or
parole and proceed with the analysis under the existing legal
framework.
We do not think creating a new category makes sense.
The gap between the Fourth Amendment rights enjoyed by
probationers as opposed to parolees is not wide to begin with.
Creating a third category of offenders with a third set of
rights wedged somewhere in the middle would further
complicate this area of the law without returning much in the
way of offsetting benefits.
UNITED STATES V. CERVANTES 9
We are thus left to decide whether mandatory supervision
is more akin to probation or parole, a distinction that could
prove important under our circuit’s case law. We have held
that warrantless, suspicionless searches of a parolee’s
residence—the domain entitled to greatest Fourth
Amendment protection—can be reasonable if the search is
authorized by the terms of the parolee’s search condition.
United States v. Lopez, 474 F.3d 1208, 1213–14 (9th Cir.
2007), overruled in part on other grounds by United States v.
King, 687 F.3d 1189 (9th Cir. 2012) (en banc). We have held
the same with respect to probationers, but we expressly
limited our holding to offenders who are on probation for a
violent felony. United States v. King, 736 F.3d 805, 810 (9th
Cir. 2013); see United States v. Lara, 815 F.3d 605, 609–10
(9th Cir. 2016). Cervantes was on mandatory supervision for
non-violent felonies, so deciding whether mandatory
supervision should be treated like probation rather than parole
could make a difference here.
Although the issue is admittedly a close one, for Fourth
Amendment purposes we think mandatory supervision is
more akin to parole than probation. Parole involves “release
from prison, before the completion of sentence, on the
condition that the prisoner abide by certain rules during the
balance of the sentence.” Samson, 547 U.S. at 850 (internal
quotation marks omitted). An offender on parole is still
serving the sentence of imprisonment imposed. He is simply
serving the tail end of that sentence at liberty, subject to
whatever conditions of supervision the court deems necessary
to protect the public and promote rehabilitation. The same is
true of mandatory supervision. Under § 1170(h)(5), a
defendant is typically sentenced to a term of imprisonment in
county jail. The concluding portion of that term is served at
liberty on mandatory supervision, subject to conditions
10 UNITED STATES V. CERVANTES
imposed by the court. If the defendant violates the conditions
of supervision, he may be returned to county jail for whatever
period remains unserved on his original sentence. People v.
Catalan, 228 Cal. App. 4th 173, 182 (2014). Parole has
traditionally operated in the same fashion. Morrissey v.
Brewer, 408 U.S. 471, 478–79 (1972); United States v.
Cardona, 903 F.2d 60, 63 (1st Cir. 1990).
Offenders placed on mandatory supervision differ in a
fundamental way from those placed on probation. Under
California law, a sentence of probation is considered an act of
clemency available only when the court determines that
mitigating facts relating to the defendant’s crime or
background warrant withholding the punishment otherwise
prescribed by law. Cal. Penal Code § 1203(b)(3); Cal. Rule
of Court 4.414. Probation is imposed “in lieu of
punishment,” People v. Howard, 16 Cal. 4th 1081, 1092
(1997), and is reserved for offenders “whose conditional
release into society poses minimal risk to public safety and
promotes rehabilitation.” People v. Welch, 5 Cal. 4th 228,
233 (1993). For that reason, the State’s interest in
supervising probationers is less weighty than it is with respect
to offenders who are sentenced to a term of imprisonment.
The State’s interest in supervising offenders placed on
mandatory supervision is considerably stronger than its
interest in supervising probationers. A defendant receives
mandatory supervision as part of a sentence of imprisonment,
only after a court determines that a sentence of probation is
not appropriate. People v. Martinez, 226 Cal. App. 4th 759,
763 (2014). In other words, a court must first conclude that
the facts relating to the defendant’s crime or criminal
background are sufficiently aggravated to warrant
imprisonment as opposed to probation, a judgment that itself
UNITED STATES V. CERVANTES 11
indicates the defendant “poses a significantly greater risk to
society” than offenders placed on probation. People v.
Burgener, 41 Cal. 3d 505, 533 (1986), overruled on other
grounds by People v. Reyes, 19 Cal. 4th 743 (1998). Thus,
like parole, mandatory supervision is “more akin to
imprisonment than probation is to imprisonment,” Samson,
547 U.S. at 850, and the State’s interest in supervising
offenders placed on mandatory supervision is comparable to
its interest in supervising parolees. California courts concur:
They have held that a split sentence under § 1170(h)(5) is
“akin to a state prison commitment,” and that mandatory
supervision is therefore “more similar to parole than
probation.” Martinez, 226 Cal. App. 4th at 763 (quoting
People v. Fandinola, 221 Cal. App. 4th 1415, 1422–23
(2013)).
Given the similarities between mandatory supervision and
parole, and the State’s comparably weighty interest in
supervising offenders placed on both forms of supervision,
we conclude that the Fourth Amendment analysis in this case
is governed by the line of precedent applicable to parolees.
B
We turn next to the question whether Cervantes’ search
condition rendered the warrantless, suspicionless search of his
hotel room reasonable under the Fourth Amendment.
Parolees who are subject to a warrantless, suspicionless
search condition have “severely diminished expectations of
privacy by virtue of their status alone.” Samson, 547 U.S. at
852. And given the high rate of recidivism for parolees, the
State’s interest in supervising them is “overwhelming.” Id.
at 853. As a result, the Supreme Court has held that a
12 UNITED STATES V. CERVANTES
suspicionless search of a parolee’s person, when conducted
in accordance with the “clear and unambiguous” terms of a
lawfully imposed search condition, will generally be deemed
reasonable under the Fourth Amendment. Id. at 852–54; see
Lopez, 474 F.3d at 1213–14 (extending Samson’s reasoning
to suspicionless searches of a parolee’s residence). Our main
task is to determine whether the search of Cervantes’ hotel
room was in fact authorized by the clear and unambiguous
terms of his search condition; if so, the search will likely be
deemed reasonable.
Cervantes’ search condition authorized warrantless,
suspicionless searches of his “residence” and any “premises”
under his control. As an initial matter, we do not think the
hotel room can qualify as Cervantes’ “residence.” In United
States v. Franklin, 603 F.3d 652 (9th Cir. 2010), we held that
a motel room qualified as a probationer’s residence, but the
probationer in that case was otherwise homeless so it made
sense to regard his temporary quarters at the motel as his
residence. Id. at 654, 657. Here, Cervantes had a permanent
residence elsewhere, and he told the officer that. A
probationer or parolee would reasonably understand the term
“residence,” when used in a search condition, to mean the
place where he lives at the time of the search. He would not
understand the term to encompass a place where he is merely
a temporary overnight guest.
The search at issue here was authorized under Cervantes’
search condition only if the hotel room can be deemed
“premises” under his control. The term “premises” is not
defined, but it is commonly understood to mean a building or
part of a building. Because the search condition also covers
“residence,” though, we think “premises” must be read to
refer to a building other than a residence. That reading is
UNITED STATES V. CERVANTES 13
necessary both to avoid rendering one of the terms of the
search condition superfluous and to avoid undercutting our
holding in Motley v. Parks, 432 F.3d 1072, 1080 (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). In Motley, we held that if the location to be searched
qualifies as a residence, officers must have probable cause to
believe that the parolee himself lives there. We imposed that
requirement to protect the privacy interests of third parties
residing at the home or apartment to be searched. Id. If
officers lack probable cause to believe that the parolee lives
at the home or apartment to be searched, they may not rely
instead on the “premises” clause on the theory that the
residence constitutes “premises” under the parolee’s control.
Permitting that result would create an unwarranted end run
around the probable-cause-as-to-residence requirement we
established in Motley. See United States v. Grandberry,
730 F.3d 968, 981 (9th Cir. 2013) (rejecting similar attempt
to rely on search condition’s “property” clause to justify
search of a residence).
A hotel room is not ordinarily a residence and is part of a
building, so it fits comfortably within the meaning of
“premises.” The remaining question is whether the room was
under Cervantes’ control. For the same reason we established
the probable-cause-as-to-residence requirement in Motley, we
think the officers needed to have probable cause (as opposed
to reasonable suspicion) to believe that the hotel room was
under Cervantes’ control. As in the residence context, the
privacy interests of third parties will often be invaded when
officers search a building other than a residence without first
obtaining the consent of the occupants or a warrant. To avoid
unduly impinging upon those privacy interests, officers must
be reasonably certain that the premises they seek to search are
14 UNITED STATES V. CERVANTES
in fact under the parolee’s control. The probable cause
standard embodies the appropriate degree of certainty
required in this context, just as it does in the residence
context. See Motley, 432 F.3d at 1080.
Did the officers have probable cause to believe that the
hotel room was under Cervantes’ control? We think they did,
based on the combination of facts present here. Most
significantly, Cervantes told the officers that he and Farish
were renting the room together. True, she paid for the room
with her credit card, but she and Cervantes checked in
together as a couple, as co-occupants. In that sense, the room
was as much his as it was hers. That fact was confirmed by
Cervantes’ possession of a key to the room, and by
Cervantes’ informing the police that his belongings were
inside the room. These facts, in combination, gave the
officers probable cause to believe that the hotel room
constituted “premises” under Cervantes’ control.
A search of a parolee that complies with the terms of a
valid search condition will usually be deemed reasonable
under the Fourth Amendment. Samson, 547 U.S. at 852–54;
Lopez, 474 F.3d at 1213–14. That would not be the case,
however, if the officers violated California’s prohibition
against arbitrary, capricious, or harassing searches. See
Samson, 547 U.S. at 856; People v. Reyes, 19 Cal. 4th 743,
753–54 (1998). Cervantes contends that the officers violated
this prohibition, but he is mistaken. The officers who
orchestrated the search did not know Cervantes and had no
prior encounters with him. Nothing in the record suggests
that the officers conducted the search for an improper
purpose, such as a desire to harass him or out of personal
animosity toward him. They appear to have conducted the
search solely for legitimate law-enforcement purposes. Nor
UNITED STATES V. CERVANTES 15
did the officers conduct the search at an unreasonable time or
in an unreasonable manner. We need not decide whether the
fact that the officers searched the room while Cervantes and
Farish were away rendered the search invalid, as Cervantes
did not argue the point in his opening brief.
Cervantes’ main complaint is that the officers lacked even
reasonable suspicion to believe that he was engaged in
criminal activity or that evidence of wrongdoing would be
found in the hotel room. But that merely establishes that this
was a suspicionless search. Although searches unsupported
by individualized suspicion might be prone to abuse, see
Samson, 547 U.S. at 865–66 (Stevens, J., dissenting), the
Supreme Court has nonetheless held that, without something
more, a suspicionless search is lawful if authorized by a
parolee’s search condition. Id. at 857 (majority opinion).
No Fourth Amendment violation having been shown, the
district court properly denied Cervantes’ motion to suppress
the evidence found in his hotel room.
III
Cervantes also raises one issue related to his sentence. He
contends that the district court abused its discretion by
imposing a supervised release condition requiring him to
submit his “person and property to search or seizure at any
time of the day or night, by any law enforcement officer, with
or without a warrant, and with or without reasonable or
probable cause.”
Although warrantless, suspicionless search conditions of
this sort should not be routinely imposed, they are not
categorically forbidden. See United States v. Betts, 511 F.3d
16 UNITED STATES V. CERVANTES
872, 876 (9th Cir. 2007); United States v. Hanrahan,
508 F.3d 962, 971 (10th Cir. 2007). District courts may
impose such conditions if applicable statutory requirements
are met and the search condition is consistent with the
Sentencing Commission’s policy statements. See United
States v. LaCoste, 821 F.3d 1187, 1190–91 (9th Cir. 2016).
In addition—and what is mainly contested here—the
condition “may involve ‘no greater deprivation of liberty than
is reasonably necessary’ to serve the goals of supervised
release.” Id. at 1191 (quoting 18 U.S.C. § 3583(d)(2)).
Cervantes first argues that the district court did not
provide adequate notice of the suspicionless search condition.
We reject this argument because Cervantes’ counsel first
raised the suspicionless search condition and objected to it at
the sentencing hearing. Once counsel had done so, it would
have been redundant for the court to provide “notice” of its
intention to impose the condition. See United States v. Wise,
391 F.3d 1027, 1033 (9th Cir. 2004) (requiring notice of a
special condition so that “counsel and the defendant will have
the opportunity to address personally its appropriateness”).
Cervantes also contends that the suspicionless search
condition involves a greater deprivation of liberty than is
reasonably necessary because the goals of supervised release
could be served just as well by a search condition requiring
reasonable suspicion. The district court did not abuse its
discretion by concluding otherwise. Cervantes has a lengthy
criminal history; he has been convicted in 16 separate cases
over a 14-year time span, mostly for offenses related to drugs
or counterfeiting. In addition, Cervantes has a lengthy history
of violating the conditions of previously imposed terms of
supervision—at least 18 prior violations in all. As recounted
earlier, Cervantes engaged in the conduct that led to his
UNITED STATES V. CERVANTES 17
convictions in this case while on mandatory supervision, and
indeed while already subject to a warrantless, suspicionless
search condition. These facts, taken together, justified the
district court’s belief that Cervantes posed an exceptionally
high risk of re-offending during his term of supervised
release, and that subjecting him to suspicionless searches
would be necessary to mitigate that risk.
AFFIRMED.