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United States v. Job

United States Court of Appeals, Ninth Circuit

March 14, 2017

United States of America, Plaintiff-Appellee,
v.
Travis Job, Defendant-Appellant.

          Argued and Submitted December 9, 2016 Pasadena, California

         Appeal from the United States District Court for the Southern District of California D.C. No. 3:13-cr-1128-BEN-11 Roger T. Benitez, District Judge, Presiding

          Todd W. Burns (argued), Burns and Cohan, San Diego, California, for Defendant-Appellant.

          Mark R. Rehe (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Peter Ko, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Paul L. Friedman, [*] District Judge.

         SUMMARY [**]

         Criminal Law

         The panel affirmed in part, vacated in part, and remanded in a case in which the defendant was convicted of conspiracy to distribute methamphetamine and possession of methamphetamine with intent to distribute.

         The panel held that the district court erred in denying the defendant's motions to suppress evidence found during searches of his person, car, and home solely on the basis that the defendant, who was on probation for a nonviolent offense, was subject to a Fourth Amendment search waiver at the time of the searches. The panel explained that a Fourth Amendment search waiver cannot provide a justification for a search of a probationer where the officers were unaware of the waiver before they undertook the search. The panel rejected the government's arguments that the search of the defendant's person was justified as a valid Terry stop and frisk, or as a valid protective sweep. The panel rejected the government's arguments that the search of the defendant's car was justified by the automobile exception to the warrant requirement, or by the officers' discovery of the Fourth Amendment search waiver where the government did not prove by a preponderance of the evidence that the officers knew about the search waiver before searching the car. The panel held that the search of the defendant's home was conducted pursuant to a valid search warrant.

         The panel concluded that the district court's failure to suppress the unlawfully seized evidence was harmless as to the conspiracy conviction, but could not conclude beyond a reasonable doubt that the evidence did not contribute to the jury's verdict on the possession-with-intent-to-distribute count.

         The panel held that the district court did not err in refusing to give a multiple conspiracies instruction.

         The panel held that the district court did not make explicit findings, as required by Fed. R. Crim. P. 32, to resolve disputes regarding the sufficiency of the evidence to support offense level increases at sentencing for importation of methamphetamine (U.S.S.G. § 2D1.1(b)(5)), maintaining a premises for the purpose of manufacturing or distributing a controlled substance (U.S.S.G. § 2D1.1(b)(12)), and unlawful discharge of a toxic substance (U.S.S.G. § 2D1.1(b)(13)(A)). The panel declined to adopt the government's proffered reading of § 2D1.1(b)(5) that would dispense with the requirement that the defendant actually knew the drugs were imported. The panel held that the government did not meet its burden of proving that the defendant maintained a premises for the primary purpose of manufacturing or distributing methamphetamine, and concluded that the government did not meet its burden of proving the facts necessary to support the increase under § 2D1.1(b)(13)(A).

          OPINION

          FRIEDMAN, District Judge.

         Travis Job appeals from his conviction after a jury trial on two drug-related offenses: (1) conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and (2) possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and his sentence of 365 months, followed by a lifetime of supervised release. He argues that the district court erred by denying his motions to suppress evidence found during searches of his person, car, and home. He also argues that the district court erred when it denied his requests for jury instructions on the lesser included offense of simple possession and on multiple conspiracies. He contends that the district court erred when calculating his guidelines sentencing range when it applied: (1) a two-level increase for an offense involving the importation of methamphetamine under United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(b)(5), (2) a two-level increase for an offense in which the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance under § 2D1.1(b)(12), and (3) a two-level increase for an offense involving an unlawful discharge of a toxic substance under § 2D1.1(b)(13)(A). Finally, he argues that his sentence of 365 months is substantively unreasonable.

         We have jurisdiction under 28 U.S.C. § 1291; we affirm Job's conviction in part, vacate it in part, and remand for further proceedings.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This case arises from an investigation into a conspiracy involving the importation of methamphetamine from Mexico and its distribution in San Diego County and South Carolina. The conspiracy was led by Job's codefendant at trial, Robert Rodriguez. The government alleged that Job served two roles within the conspiracy. Rodriguez fronted methamphetamine to Job for sale to third parties, meaning that drugs were provided to Job on the promise that he would pay Rodriguez later, after the drugs were sold. In addition, Job "cut" methamphetamine for Rodriguez and Carrie Brown-Rodriguez, Rodriguez's wife. Cutting refers to adding another product to pure methamphetamine to add more weight to it and increase the quantity available for resale.

         On October 3, 2012, the police arrested Job for possession of a controlled substance for sale and possession of drug paraphernalia after stopping him and searching his person and his car.[1] That afternoon, Officer Nicholas Dedonato and other officers arrived at 2504 Snowdrop Street looking for another man, Richard Elliot, who is unrelated to this case. Upon the officers' arrival at the home, they saw two men open the garage door. These men were identified as Travis Job and William Holt, who also is unrelated to this case. According to Officer Dedonato, both men looked "very surprised to see the police." Job "appeared very nervous and was wearing a baggy shirt, which concealed his waistband and baggy cargo shorts, with the pockets appearing to be full of items."

         In the police report, Officer Dedonato stated that he "felt it would be much safer for my partners and myself if I patted Job down for weapons." He handcuffed Job prior to the pat down. During the pat down, he "felt a hard tube like object with a bulbous end in [Job's] left cargo pocket." Based on his training and experience, Officer Dedonato recognized the object as an illegal glass pipe. Officer Dedonato removed the pipe, which "contained a burnt white residue." In Job's pockets, Officer Dedonato found $1450 in cash and Job's car keys. He then placed Job under arrest for possession of narcotics paraphernalia.

         After seizing Job's car keys, Officer Dedonato asked Job where he had parked his car. Job "looked around nervously and said, 'I don't know.'" Officer Dedonato pressed the unlock button on Job's key fob, and the car in the driveway beeped as it unlocked. Two other officers then searched Job's car. They found a cigarette pack containing 3.9 grams of methamphetamine in "two Ziploc style bags" and a hand-rolled cigarette with "Spice, " which they recognized as an illegal street drug; another glass pipe containing burnt white residue; and a Blackberry cell phone.

         At some point during the encounter, the officers conducted a records check, "which revealed [Job] was currently on probation with a 4th amendment waiver." While on probation for a state drug offense, Job was required to "submit person, property, place of residence, vehicle, [and] personal effects to search at any time with or without a warrant, and with or without reasonable cause, when required by a probation officer or other law enforcement officer." It is unclear when, if ever, the officers learned the precise scope of Job's search waiver.

         In December of 2012, police officers obtained a search warrant for Job's residence, based in part on intercepts from wiretaps of Rodriguez's phone. While executing the search warrant, the officers found various items including: 56.4 grams of methamphetamine in Job's freezer, five scales, small stashes of methamphetamine totaling 15.28 grams, baggies, several glass pipes, and undisclosed amounts of Spice, bath salts, and marijuana. In the garage, the officers found an invoice for items including a test tube, a hand boiler, and an Erlenmeyer flask. In the kitchen, the officers found cleaning supplies, a microwave, a hot plate, and a white apron. After the search, the San Diego County Department of Environmental Health inspected Job's apartment and found that the downstairs portion was "contaminated with methamphetamine residuals." In a subsequent report, the department concluded that methamphetamine had been stored in Job's kitchen and living room, but that it was "unknown if manufacturing was taking place" in the apartment.

         Before trial, Job filed two motions to suppress: one for the evidence found on his person and in his car in October and one for the evidence found during the search of his home in December. With its response opposing both motions, the government submitted a police report describing the events of October 3, 2012. The district court denied both motions without an evidentiary hearing. During trial, Job requested jury instructions on the lesser included offense of simple possession and on multiple conspiracies. The district court denied both requests. A jury convicted Job on all counts. The government sought enhanced penalties under 21 U.S.C. § 851 because Job had committed these offenses after prior felony convictions.

         In determining Job's guidelines sentencing range, the district court applied three offense level increases: (1) a two-level increase for an offense involving the importation of methamphetamine under U.S.S.G. § 2D1.1(b)(5), (2) a two-level increase for maintaining a premises for the purpose of manufacturing or distributing a controlled substance under § 2D1.1(b)(12), and (3) a two-level increase for the unlawful discharge of a toxic substance under § 2D1.1(b)(13)(A). The district court also concluded that Job was subject to a 20-year mandatory minimum under 21 U.S.C. § 851. The court calculated a guidelines sentencing range of 360 months to life, and sentenced Job to 365 months in prison and supervised release for life.

         II. FOURTH AMENDMENT SEARCHES

         Job challenges the constitutionality of three searches: (1) the search of his person on October 3, 2012, (2) the search of his car on October 3, 2012, and (3) the search of his home on December 5, 2012. We must determine whether the searches were unreasonable under the Fourth Amendment. We review a district court's denial of a motion to suppress evidence de novo and review the district court's factual findings for clear error. United States v. Lara, 815 F.3d 605, 608 (9th Cir. 2016) (citing United States v. Mayer, 560 F.3d 948, 956 (9th Cir. 2009)). Before turning to each search, we address the justification for the searches accepted by the district court.

         In denying Job's motions to suppress, the district court concluded - based on our decision in United States v. King - that Job's Fourth Amendment search waiver provided a justification for all three searches. 736 F.3d 805, 810 (9th Cir. 2013). In King, we held that "a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment." Id. The district court erred by applying King's holding to this case for two reasons.

         First, it is undisputed that the officers were unaware of Job's Fourth Amendment search waiver when they stopped him and patted him down. The district court did not determine whether the officers were aware of the search waiver before conducting the search of his person and the search of his car. It based its decision solely on the fact that Job was subject to a Fourth Amendment search waiver at the time of the searches. Police officers must know about a probationer's Fourth Amendment search waiver before they conduct a search in order for the waiver to serve as a justification for the search. In United States v. Caseres, we concluded that a "search is not justified by the state's interest in supervising" parolees when the officers were unaware of the waiver before the search. 533 F.3d 1064, 1076 (9th Cir. 2008); see also Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005) (holding that "police officers cannot retroactively justify a suspicionless search and arrest on the basis of an after-the-fact-discovery of . . . a parole [search waiver] condition"). This reasoning also logically applies to probationers, who have a higher expectation of privacy than parolees. Lara, 815 F.3d at 610 (citing Samson v. California, 547 U.S. 843, 850 (2006)). A Fourth Amendment search waiver cannot provide a justification for a search of a probationer where the officers were unaware of the waiver before they undertook the search.

         Second, our decision in King was limited to individuals on probation for violent felonies. 736 F.3d at 810; see also Lara, 815 F.3d at 609-10 (noting that King was "expressly limited" to violent felons and does not apply to individuals on probation for nonviolent drug crimes). Although the parties dispute whether Job was on probation for a felony or a misdemeanor, we need not decide that issue because there is no dispute that Job was on probation for a nonviolent offense.[2]

         In Lara, we said that violations of California Health and Safety Code §§ 11378 and 11379(a), for the possession for sale and transportation of methamphetamine, are "nonviolent drug crime[s]." 815 F.3d at 610. Job was on probation for a similar offense, unlawful possession of methamphetamine, in violation of § 11377(a). Because Job was on probation for a nonviolent offense, Job's Fourth Amendment search waiver cannot justify a suspicionless search of his person, car, or home. The district court erred in denying Job's motions to suppress evidence from all three searches solely on the basis of Job's Fourth Amendment search waiver.

         The government now offers numerous, independent justifications for each search aside from the search waiver. We address the government's other justifications for the searches, some of which are raised for the first time on appeal, because we can affirm on any ground supported in the record. Recording Indus. Ass'n v. Diamond Multimedia Sys. Inc., 180 F.3d 1072, 1076 n.3 (9th Cir. 1999).

         A. Search of ...


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