                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 21 2012

                                                                        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. 11-10666

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00063-WHA-1

  v.
                                                 MEMORANDUM *
ISIAIN JOHNSONMARIN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                      Argued and Submitted December 7, 2012
                             San Francisco, California

Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.

       Isiain Johnsonmarin appeals the district court’s denial of his motion to

suppress evidence and the district court’s non-mandatory condition of supervised

release. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and

we affirm in part and reverse and remand in part.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
                                         -2-

      Johnsonmarin argues on appeal that the district court erred in denying his

motion to suppress evidence from a searched vehicle because Johnsonmarin was

not a recent occupant of the vehicle. We disagree. The circumstantial evidence

reasonably supports the conclusion that Johnsonmarin was a recent occupant of the

vehicle, and therefore the search-incident-to-arrest exception to the warrant

requirement applies. See Arizona v. Gant, 556 U.S. 332, 351 (2009) (holding that

the vehicle of a recent occupant may be searched incident to arrest as an exception

to the warrant requirement where it is reasonable to believe the vehicle contains

evidence of the offense of arrest). Johnsonmarin argued that the police officers

could not have deemed him to be a recent occupant of the vehicle, yet

Johnsonmarin was found next to his running vehicle, the officers had observed

Johnsonmarin driving the vehicle on prior occasions, a female was in the passenger

seat, and the driver’s seat was vacant. This circumstantial evidence of spatial and

temporal proximity, especially in the absence of evidence supporting any other

explanation, suffices to prove the exception to the warrant requirement by a

preponderance of the evidence. See Thornton v. United States, 541 U.S. 615, 622

(2004) (analyzing the spatial and temporal relationship of a person and a vehicle to

determine if the person was a recent occupant of the vehicle); United States v.

Vasey, 834 F.2d 782, 785 (9th Cir. 1987) (“The government must prove the
                                         -3-

existence of an exception to the Fourth Amendment warrant requirement by a

preponderance of the evidence.”).

       We reverse and remand to the district court the sentencing of Johnsonmarin

to clarify the non-mandatory conditions of supervised release. The district court’s

oral pronouncement of the supervised-release terms differs from the more

prohibitive written terms contained in the judgment. Whereas the oral

pronouncement prohibits Johnsonmarin from visiting the City and County of San

Francisco, the written terms also prohibit Johnsonmarin from visiting “any area

frequented by gangs.” Because the oral pronouncement controls, the written

judgment must be amended to conform. See United States v. Hicks, 997 F.2d 594,

597 (9th Cir. 1993). We remand this condition of supervised release to the district

court for clarification.

        We uphold the condition of supervised release prohibiting Johnsonmarin

from living in or visiting San Francisco without the prior consent of the probation

officer. See United States v. Watson, 582 F.3d 974, 984–85 (9th Cir. 2009)

(upholding a similar condition excluding a gang member from San Francisco

without the permission of his probation officer). The condition is permissible in

this instance because of Johnsonmarin’s history with gangs in San Francisco and

because the probation officer has the authority to allow Johnsonmarin to visit San
                                           -4-

Francisco for legitimate reasons, such as to visit his fiancée and children. Implicit

in this authority is that it will be exercised reasonably and is subject to the judge’s

supervision in case of complaint.

      AFFIRMED in part and REVERSED and REMANDED in part.
