                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS
                                                                             FILED
                           FOR THE NINTH CIRCUIT
                                                                             APR 20 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.    16-30081

              Plaintiff-Appellee,                D.C. No.
                                                 1:14-cr-00125-SPW-1
 v.

RYAN ANTHONY CISLO,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                        Argued and Submitted April 4, 2017
                               Seattle, Washington

Before: KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM,**
Chief District Judge.

      1.     Cislo argues that the district court erred by denying his motion to

suppress evidence of three guns found during the search of his bedroom. As part



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
                                                                                 page 2
of his probation, Cislo was subject to a number of conditions, including that he

“must submit at any time upon reasonable suspicion to the warrantless search of

his residence.” If Cislo wasn’t kicked out of Johnson’s house and maintained a

reasonable expectation of privacy in the bedroom, the search was a valid probation

search. If he was kicked out of Johnson’s house, he had no reasonable expectation

of privacy in the bedroom and, therefore, no standing to challenge the search. Cf.

United States v. Davis, 332 F.3d 1163, 1167 (9th Cir. 2003). Although the district

court should have provided Cislo with an opportunity to be heard before basing its

decision on the rejection of a stipulation, any error was harmless because the

motion to suppress would have failed on either ground.


      2.     The district judge didn’t abuse her discretion in admitting hearsay

evidence at the suppression hearing. “At a suppression hearing, the court may rely

on hearsay and other evidence, even though that evidence would not be admissible

at trial.” United States v. Raddatz, 447 U.S. 667, 679 (1980) (citations omitted).


      3.     Even if we assume that the district court shouldn’t have admitted

Johnson’s hearsay statement under Federal Rule of Evidence 803(5), any error was

harmless. Contrary to Cislo’s argument, this wasn’t the “only evidence that Mr.

Cislo ever had physical control of any of the three firearms.” “To prove
                                                                                  page 3
constructive possession, the government must prove a sufficient connection

between the defendant and the contraband to support the inference that the

defendant exercised dominion and control” over the guns. United States v. Terry,

911 F.2d 272, 278 (9th Cir. 1990) (internal quotation marks and citation omitted).

Two of the handguns were found under the mattress of Cislo’s bed. There was

sufficient evidence of constructive possession to support the jury’s verdict, even in

the absence of Johnson’s hearsay statement. See id. (holding that there was

sufficient evidence of constructive possession under similar circumstances).


      4.     The district court didn’t abuse its discretion by refusing Cislo’s

proposed remedial jury instruction. Before granting a remedial jury instruction, a

district court must consider “whether the evidence was lost or destroyed while in

[the Government’s] custody, whether the Government acted in disregard for the

interests of the accused, whether it was negligent . . ., and, if the acts were

deliberate, whether they were taken in good faith or with reasonable justification.”

United States v. Sivilla, 714 F.3d 1168, 1173 (9th Cir. 2013) (internal quotation

marks and citation omitted). The district court did not err in concluding that law

enforcement deliberately—and in good faith—decided not to seize the gun safe

because possession of a safe wasn’t a violation of Cislo’s probation.
            page 4
AFFIRMED.
