                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 29 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50023

                Plaintiff-Appellee,             D.C. No. 2:17-cr-00362-AB-1

 v.
                                                MEMORANDUM*
SAMUEL TRULY FLEMING, AKA Sam
Trully Fleming, AKA Sam Truly Fleming,
AKA Sam Truly Fleminy, AKA Sam
Flemming, AKA Thomas Whittaker,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andre Birotte, Jr., District Judge, Presiding

                     Argued and Submitted November 7, 2019
                              Pasadena, California

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

      Samuel Fleming was found guilty of possession with intent to distribute

cocaine base in violation of 21 U.S.C. § 841. He appeals the denial of his motion


      *
             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.
to suppress the evidence that he possessed the controlled substance, which was

found in a search of his home. He also challenges several conditions of supervised

release imposed as part of his sentence. We conclude that the search was lawful,

but the supervised-release conditions are not. Accordingly, we affirm the

conviction, but remand for modification of the conditions.

      We review the denial of a motion to suppress de novo, and factual findings

for clear error. United States v. Lustig, 830 F.3d 1075, 1079 (9th Cir. 2016).

Although we generally review supervised-release conditions for abuse of

discretion, we review de novo whether such conditions violate the Constitution.

United States v. Evans, 883 F.3d 1154, 1159–60 (9th Cir. 2018). We have

jurisdiction over Fleming’s appeal under 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291.

      We reject Fleming’s argument that the search of his apartment was illegal

because the condition of his probation authorizing suspicionless searches of his

“person and property” did not authorize a search of his residential property.1 “The

meaning of such a California term of probation is a question of state law.” United



1
  Fleming’s probation condition is set forth in the minute order of his April 2016
probation and sentencing hearing. It states, in relevant part: “Submit your person
and property to search and seizure at any time of the day or night, by any probation
officer or other peace officer, with or without a warrant, probable cause or
reasonable suspicion.” Fleming assented to the condition verbally at the hearing
and later by signing a copy of the minute order.

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States v. King, 736 F.3d 805, 807 n.3 (9th Cir. 2013) (emphasis removed). We

therefore look to California law to ascertain the meaning of Fleming’s search

condition. In People v. Bravo, the California Supreme Court articulated a

controlling test for determining the meaning and scope of a California term of

probation:

      Law enforcement officers who rely on search conditions in probation
      orders, the probationer himself, and other judges who may be called
      upon to determine the lawfulness of a search, must be able to
      determine the scope of the condition by reference to the probation
      order. We cannot expect police officers and probation agents who
      undertake searches pursuant to a search condition of a probation
      agreement to do more than give the condition the meaning that would
      appear to a reasonable, objective reader. They can neither inquire
      into the subjective understanding of the probationer, nor analyze the
      condition in light of legal precedent drawing fine points based on
      minor differences in the wording of search conditions in other
      probation orders. The search condition must therefore be interpreted
      on the basis of what a reasonable person would understand from the
      language of the condition itself, not on the basis of appellant’s
      subjective understanding, or under a strict test in which a
      presumption against waiver is applied.

738 P.2d 336, 339–40 (Cal. 1987) (in bank) (emphases added). In short, the

California Supreme Court applies an objective, reasonable reader test. Applying

that objective test to an identically worded condition, Bravo held that such a

“condition of appellant’s probation . . . justified the search of his home.” Id. at

343. We therefore conclude that the search of Fleming’s apartment was authorized

by the search condition of his probation, as a reasonable reader of the term “person




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and property” would interpret the word “property” to encompass both personal and

real property.

      With the meaning and scope of the condition resolved, and because we may

affirm on any basis supported by the record, United States v. Pope, 686 F.3d 1078,

1080 (9th Cir. 2012), we affirm the denial of Fleming’s motion to suppress on the

basis that the searching officers had reasonable suspicion to search Fleming’s

home. A warrantless search of a probationer’s apartment, supported by reasonable

suspicion, and authorized by a search condition of his probation, is reasonable

within the meaning of the Fourth Amendment. United States v. Knights, 534 U.S.

112, 122 (2001). The officers here searched Fleming’s home only after observing

him engage in what appeared to be a drug transaction in an area of Los Angeles

known for illegal drug activity, recognizing him as someone with a criminal

history of drug offenses, and recovering several thousand dollars in bundled cash

from his vehicle. These facts satisfy the reasonable suspicion standard.2

      As to Fleming’s conditions of supervised release, we held in United States v.

Evans that certain of the conditions are unconstitutionally vague. 883 F.3d at

1162–64. Accordingly, we vacate conditions five, six, and fourteen, and remand to


2
 Reasonable suspicion is “not a particularly high threshold to reach,” and is
defined as “a particularized and objective basis for suspecting the particular
person” of criminal activity. United States v. Valdes-Vega, 738 F.3d 1074, 1078
(9th Cir. 2013) (en banc) (second quoting United States v. Cotterman, 709 F.3d
952, 968 (9th Cir. 2013) (en banc)).

                                         4
the district court with instructions to impose whatever alternative conditions it

deems appropriate in light of Evans.

      AFFIRMED in part, VACATED in part, and REMANDED.




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