                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               )     No. 10-10050
                                        )
      Plaintiff – Appellee,             )     D.C. No. 3:09-cr-00344-MMC-1
                                        )
      v.                                )     MEMORANDUM *
                                        )
JUSTIN SMITH,                           )
                                        )
      Defendant – Appellant.            )
                                        )
                                        )

                  Appeal from the United States District Court
                     for the Northern District of California
               Maxine M. Chesney, Senior District Judge, Presiding

                              Submitted March 17, 2011 **
                               San Francisco, California

Before:      WALLACE, FERNANDEZ, and CLIFTON, Circuit Judges.

      Justin Smith appeals from his conviction for being a felon in possession of a

firearm. 18 U.S.C. § 922(g)(1). He asserts that the district court erred when it



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
denied his motion to suppress evidence that he claims was obtained as a result of

an illegal search and seizure. See U.S. Const. amend. IV. We affirm.

      Smith was subject to a parole search term imposed pursuant to California

law.1 At the time in question, the vehicle (a U-Haul truck) from which the items in

question (guns) were seized, was not being driven by Smith himself, but contained

his possessions, was being driven by a close relative, and was closely following an

automobile belonging to Smith and his wife. He was in the automobile and she

was driving. Smith asserts that the officers, who pulled his automobile and the U-

Haul over,2 lacked probable cause 3 to believe that he was in control of the U-Haul.4



      1
       See Cal. Penal Code § 3067. Smith does not argue that a warrantless and
suspicionless search would be invalid as applied to him and his possessions. See
United States v. Lopez, 474 F.3d 1208, 1209, 1214 (9th Cir. 2007); see also
Samson v. California, 547 U.S. 843, 851–57, 126 S. Ct. 2193, 2199–2202, 165 L.
Ed. 2d 250 (2006).
      2
       We assume, as did the district court and the parties, that the U-Haul was
pulled over.
      3
        Probable cause is the standard applied when a search is made at a place that
is said to be the parolee’s residence. See Motley v. Parks, 432 F.3d 1072, 1080
(9th Cir. 2005) (en banc); see also United States v. Franklin, 603 F.3d 652, 656
(9th Cir. 2010) (explicating the probable cause standard); United States v. Garcia-
Villalba, 585 F.3d 1223, 1233 (9th Cir. 2009) (same).
      4
        The parties and the district court assumed that the probable cause standard
applied to the determination of whether Smith had control of the U-Haul. Without
deciding whether that high of a standard is required, we use it for the purposes of
this disposition.

                                          2
Based upon the facts known to the officers before they made the stop, the district

court did not err when it determined that there was probable cause to believe that

Smith did control the U-Haul.5

      AFFIRMED.6




      5
       While it cannot and does not influence our decision, we note that a brief
inquiry after the vehicles were stopped made it pellucid that the officers’ belief that
Smith controlled the U-Haul was absolutely correct.
      6
       Because there was probable cause regarding control, we need not consider
whether there was reasonable suspicion to believe that the U-Haul contained
contraband before the stop was made.

                                           3
