11/15/19: Search case with a supervised release issue

In United States v. Ped, --- F.3d ---, No. 18-50179 (9th Cir. 2019), the Court affirmed the denial of the defendant's suppression motion but vacated a few supervised release conditions.

I believe this is the first published criminal case by the newly appointed Judge Miller. 

The Court found the warrantless home search here was permissible because the police had probable cause to believe the defendant's brother (who was on post-release community supervision with a 4th waiver) lived at the house.  This was so despite the fact that the defendant and the defendant's mother told police he did not live there and the brother having previously reported that he did not live there.  The Court concluded that the officers reasonably relied on a probation list, notwithstanding that it was three months old.

As to the supervised release issue, the district court required that the defendant “support his . . . dependents and meet other family responsibilities,” that he “work regularly at a lawful occupation,” and that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.

Based on Circuit precedent, the Court found these conditions were unconstitutionally vague.  The Court held it needed to remand the case to the district court, rather than rewrite the conditions: “a remand is required under § 3742(f)(1) whenever the reviewing court concludes that the sentence was imposed 'in violation of law.'”

11/4/19: Two cases today, two affirms

Two cases today.  One on the Fourth Amendment and one on SORNA

In United States v. Norris, --- F.3d ---, No. 17-10354 (9th Cir. 2019), the Court affirmed the defendant's conviction for distribution and possession of material involving the sexual exploitation of minors.

The case involved the government's use of software and a directional antenna to find the location of the defendant's computer.

The basic facts were that the defendant hacked into his neighbor's wireless network from an adjacent apartment and used that internet connection to share contraband images on a peer-2-peer network.  

To find the defendant's location (that is, the location of his computers), agents used a wireless tracking software program, Moocherhunter, designed to identify computers trespassing on wireless networks, and a wireless antenna. The software pointed the agents to the defendant's apartment.  They obtained a search warrant and found contraband. 

The district court denied the defendant's motion to suppress, and the Court affirmed.  

First, it held there was "no actual physical intrusion into Norris’s apartment," because the signal extended outside of his home and was captured outside of his home:  "The FBI’s actions may be likened to locating the source of loud music by standing and listening in the common area of an apartment complex. Although the music is produced within the apartment, the sound carries outside the apartment. Just as no physical intrusion 'on constitutionally protected areas' would be required to determine the source of the loud music, no physical intrusion into Norris’s residence was required to determine the strength of the wireless signal emanating from the devices in his apartment."

Second, the Court held that, under the Katz test, there was no reasonable expectation of privacy in the signal because it extended outside of the home (and on this basis, the Court distinguished Kyllo).  Further, the Court explained, "[w]e have also generally concluded that society is not prepared to recognize as reasonable a subjective expectation of privacy in the content of property obtained through unauthorized means."

The Court also rejected the defendant's argument that he was entitled to a Franks hearing. 

Moving on, in United States v. Dailey, --- F.3d ---, No. 18-10134 (9th Cir. 2019), the Court dismissed an appeal from the district court’s imposition of a probation condition requiring the defendant to register as a sex offender pursuant to the Sex Offender Notification and Registration Act.

This is one of those cases where the Court had to decide the merits of the appeal to determine whether it was covered by the appellate waiver.

On that subject, the Court summarized the relevant waiver law: 

There are, however, several exceptions to waivers of the right to appeal. “An appeal waiver will not apply if: 1) a defendant’s guilty plea failed to comply with [Federal Rule of Criminal Procedure] 11; 2) the sentencing judge informs a defendant that she retains the right to appeal; 3) the sentence does not comport with the terms of the plea agreement; or 4) the sentence violates the law.”  Among other things, a sentence that violates the law is a sentence “in excess of the permissible statutory penalty for the crime,” a category that includes unlawful probation conditions. 

The defendant argued the last exception applied, because she was wrongly required to register under SORNA.  She claimed her conviction for violating the Travel Act did not constitute a “sex offense.”  

In rejecting her claim, the Court held the categorical approach does not apply: "faced with the question whether the only acceptable interpretation of [SORNA's] residual clause is to apply a noncategorical approach regarding the age of the victim, we hold that it is." 

Thus, because the defendant admitted in her plea that the offense of conviction involved a minor, registration was required.