                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 3 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50408

                Plaintiff-Appellee,             D.C. No. 3:15-cr-02585-W-1

 v.
                                                MEMORANDUM*
PEDRO AURELIO FRANCO, AKA Pedro
Franco,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Thomas J. Whelan, District Judge, Presiding

                       Argued and Submitted March 9, 2018
                              Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Pedro Aurelio Franco (Pedro)1 was convicted of two counts of Felon in

Possession of a Firearm, in violation of 18 U.S.C. § 922(g), pursuant to a

conditional guilty plea. In his present appeal, Pedro challenges the district court’s

denial of his motion to suppress two firearms that officers seized from a safe in a

locked closet in his locked bedroom, arguing that the search violated his Fourth

Amendment rights.

      “We review the lawfulness of a search and seizure—a mixed question of law

and fact—de novo.” United States v. Scott, 705 F.3d 410, 414–15 (9th Cir. 2012)

(citing United States v. Mendoza–Ortiz, 262 F.3d 882, 885 (9th Cir. 2001)). We

review the district court’s underlying findings of fact for clear error. Id.

      1. Pedro contends that his brother’s, Claudio Franco’s, probation release

condition that allowed officers to search Claudio’s person, property, and place of

residence without reasonable cause, is invalid under the Fourth Amendment, and

therefore, the entire search of the shared Franco home was unconstitutional. We

need not reach this issue. Our inquiry is focused on the reasonableness of the

search of Pedro’s bedroom based on the totality of the circumstances, including

Pedro’s reasonable expectation of privacy and the state’s interests. See United

States v. Lara, 815 F.3d 605, 610–12 (9th Cir. 2016) (evaluating the



1
 Because this case involves various members of the Franco family, all living in the
same home, the disposition refers to the family members by first name.

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reasonableness of a probation search condition based on the balance of the

intrusion upon an individual’s privacy and the degree to which the search is needed

for the promotion of legitimate state interests); see also United States v. Knights,

534 U.S. 112, 117–18 (2001) (evaluating the reasonableness of the search

condition in light of the totality of the circumstances, including the probationer’s

acceptance of the search condition). As discussed below, we conclude the search of

Pedro’s bedroom was not reasonable under the Fourth Amendment.

      2. Pedro argues that the search of his locked bedroom and closet cannot be

justified as permissible under the scope of Claudio’s probation search condition. In

a search of a residence that is shared by an individual on probation and an

individual not on probation, a valid probation search condition “authorizes the

police to search common areas of th[e shared] home, even if doing so intrudes on

the privacy rights of co-residents who did not themselves consent to the search.”

Sharp v. Cty. of Orange, 871 F.3d 901, 918 n.10 (9th Cir. 2017) (citing United

States v. Matlock, 415 U.S. 164, 170–71 (1974)). As to a particular area or item

that is not clearly a common space, officers must have a reasonable suspicion that

the area or item is owned, possessed or within the control of the probationer, in

order for it to fall within the permissible bounds of a probation search. United

States v. Davis, 932 F.2d 752, 758–59 (9th Cir. 1991) (upholding officers’ search

of a locked safe in which officers found heroin that served as the basis for non-


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probationer defendant’s conviction where the safe was located in probationer’s

bedroom in an apartment to which both the defendant and the probationer had

access); see also United States v. Bolivar, 670 F.3d 1091, 1093 (9th Cir. 2012)

(upholding officers’ search of a backpack found in a shared closet in a residence

shared by a probationer and the non-probationer defendant).

      Here, the officers could not have had reasonable suspicion that Pedro’s

locked bedroom was an area owned, possessed, or within the control of Claudio,

the probationer. See Davis, 932 F.2d at 758. It is undisputed that the officers knew

they were searching Pedro’s private bedroom, which was not shared with Claudio.

Pedro’s bedroom was locked and only Pedro had the key to the room. These facts

support that Claudio certainly did not own, and moreover, did not have control

over Pedro’s bedroom or its contents. The facts of this case are in contrast to Davis

and Bolivar where the area searched was a shared space, and the probationer had

possible access to and control over the items at issue. Here the officers could not

have had reasonable suspicion that Pedro’s locked bedroom was controlled or

possessed by Claudio. See id. Therefore, Claudio’s probation search condition did

not extend to Pedro’s locked bedroom.

      3. The government argues, and the district court found, that the search of

Pedro’s locked bedroom was justified as part of a protective sweep that was

necessary to identify any unknown threats to officer safety. Pedro contends that the


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search of his bedroom went beyond the brief and cursory search that is permitted

under the protective sweep doctrine.

      “A ‘protective sweep’ is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers or others. It is

narrowly confined to a cursory visual inspection of those places in which a person

might be hiding.” Maryland v. Buie, 494 U.S. 325, 327 (1990). A protective sweep

is permitted if the searching officer “possesse[d] a reasonable belief based on

‘specific and articulable facts which, taken together with the rational inferences

from those facts, reasonably warrant[ed]’ the officer in believing . . . that the area

swept harbored an individual posing a danger to the officer or others.” Id. (citation

omitted) (alterations in original). “This ‘protective sweep’ is not a license to search

every nook and cranny of a house, but is subject to two significant limitations: it

‘extend[s] only to a cursory inspection of those spaces where a person may be

found’ and lasts ‘no longer than it takes to complete the arrest and depart the

premises.’” United States v. Lemus, 582 F.3d 958, 962 (9th Cir. 2009) (quoting

Buie, 494 U.S. at 335–36).

      For purposes of this disposition, we assume that a protective sweep can be

conducted absent arrest.2 We conclude that here, the search of Pedro’s bedroom


2
 The officers here were conducting a probation search pursuant to Claudio’s
probation terms and had made no arrest prior to searching Pedro’s bedroom and
closet. We have recently “note[d] that there is both a split between the circuits and

                                           5
was overly broad and did not constitute a protective sweep. Approximately thirteen

minutes had elapsed from the time the officers initially arrived at the Franco home.

The officers had “cleared” or made sure all other areas of the home were safe in

that time, prior to asking Pedro for the key to his bedroom. Under these

circumstances, the officers’ search of Pedro’s locked bedroom and closet is beyond

a “quick and limited search of premises” that is “narrowly confined to a cursory

visual inspection.” Buie, 494 U.S. at 327.

      The search of Pedro’s bedroom and closet also does not comport with the

rationales for a protective sweep—ensuring officers’ safety and “dispel[ling] the

reasonable suspicion of danger.” Id. at 334–36 (emphasis added). Here, there were

ten to twelve officers on scene to conduct the search of the Franco home. Although

the lead officer, Officer Rodelo, believed the Franco brothers had prior criminal

convictions and gang affiliation, the only individuals Officer Rodelo believed to be

dangerous—Pedro and his other brother Jose—were detained in the front of the

home where the officers first encountered them. Pedro and his parents told the

officers that Claudio was not home, but Officer Rodelo testified that he did not


a split within our circuit as to whether a protective sweep may be done ‘where
officers possess a reasonable suspicion that their safety is at risk, even in the
absence of an arrest.’” Mendez v. Cty. of Los Angeles, 815 F.3d 1178, 1191 (9th
Cir. 2016), cert. granted in part sub nom. Los Angeles Cty., Cal. v. Mendez, 137 S.
Ct. 547 (2016), and vacated and remanded sub nom. Cty. of Los Angeles, Cal. v.
Mendez, 137 S. Ct. 1539 (2017) (collecting cases); see also Sharp, 871 F.3d at 919
n.11.

                                         6
trust the family. However, Officer Rodelo stated he did not believe Claudio was

dangerous, and Claudio was not on probation for a violent offense. Accordingly,

there were no “specific and articulable facts” that would reasonably warrant the

officers’ belief that Claudio was dangerous and hidden in Pedro’s bedroom, posing

a threat to the officers. See Buie, 494 U.S. at 334. Moreover, if the officers were

concerned about Claudio hiding in Pedro’s bedroom and presenting a danger to

them, during and after the thirteen minutes of their inspection of the Franco home,

officers could have monitored the door without going into Pedro’s bedroom and

searching his closet.3

      The search of Pedro’s bedroom was overly broad and cannot be

characterized as a brief and cursory protective sweep. The search was extended in

time and was not rooted in specific and articulable facts supporting the belief that


3
  The government cites two Ninth Circuit cases for the proposition that the search
here was valid under the protective sweep doctrine, specifically because of the
danger the officers faced. See United States v. Murphy, 516 F.3d 1117, 1121 (9th
Cir. 2008), abrogated on other grounds by Fernandez v. California, 571 U.S. 292
(2014) (upholding brief protective sweep of the “immediate area” of a storage unit
that was owned by an individual for which there was an outstanding arrest warrant
and who was unaccounted for at the time of the search, possibly presenting a
hidden danger to officers); United States v. Paopao, 469 F.3d 760, 766–67 (9th
Cir. 2006) (protective sweep was justified where the officers were investigating an
illegal gambling room and had received a reliable tip that two perpetrators from
previous robberies were in the room). Unlike Murphy and Paopao, this case does
not involve a wanted fugitive or criminal-at-large. The only person missing from
the home—Claudio—was not wanted. In fact, later that Friday, Claudio reported to
jail as he was required to do on the weekends—a requirement of which Officer
Rodelo was aware.

                                          7
someone was in Pedro’s bedroom and posed a danger to officers. See id.

      4. Finally, the government argues that even if the search was unreasonable,

the good faith doctrine supports the district court’s decision to not suppress the

evidence. The good faith doctrine applies when an officer, in good faith,

reasonably relies on a search warrant that is later deemed to be invalid. See United

States v. Leon, 468 U.S. 897, 919–21 (1984). That doctrine is inapposite here.

There was no warrant to rely upon, and the officers’ reliance on Claudio’s

probation condition to search Pedro’s bedroom goes beyond the scope of that

condition.

      REVERSED and REMANDED.




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