United States v. Danny Nicolas

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2019
• Docket: 19-10049
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10049

Plaintiff-Appellee, D.C. No. 3:09-cr-00966-CRB-1

v. MEMORANDUM* DANNY SAN NICOLAS, AKA Siete,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Submitted December 11, 2019**

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

Danny San Nicolas appeals from the district court’s judgment and

challenges one special condition of supervised release imposed upon revocation of

supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

San Nicolas first argues that the district court deprived him of due process

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). by failing to give him advance notice of its intention to impose a special condition

of supervised release permitting warrantless, suspicionless searches. However,

given that the condition was imposed as a part of San Nicolas’s original sentence,

and was in effect during the revocation proceedings, “the record suggested the

condition as a possibility before it was imposed,” United States v. Quinzon, 643

F.3d 1266, 1269 (9th Cir. 2011) (internal quotations omitted), and San Nicolas was

afforded adequate notice.

San Nicolas next contends that the district court had a heightened duty to

explain its imposition of the suspicionless search condition, which it failed to

satisfy. See United States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008) (condition

involving a “significant liberty interest” requires more detailed explanation).

However, San Nicolas provides no authority for his argument that a suspicionless

search condition implicates the narrow class of significant liberty interests that

trigger the heightened requirement. See United States v. Wolf Child, 699 F.3d

1082, 1090 (9th Cir. 2012) (condition that infringes a defendant’s right to associate

with an intimate family member implicates a significant liberty interest); United

States v. Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008) (conditions that compel a

person to take antipsychotic medication, or undergo penile plethysmograph testing

or chemical castration implicate significant liberty interests). Further, contrary to

San Nicolas’s argument, the suspicionless search condition does not violate his

2 19-10049 Fourth Amendment right to privacy. See Samson v. California, 547 U.S. 843, 857

(2006) (the Fourth Amendment does not prohibit suspicionless searches of

parolees); United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007) (finding “no

sound reason for distinguishing parole from supervised release” and upholding a

warrantless search condition of supervised release). Finally, the district court’s

reasons for imposing a suspicionless search condition are apparent from the record

as a whole, which indicates that the condition was necessary and appropriate in

light of San Nicolas’s criminal history, his numerous violations of conditions of

supervised release, the frequency of his contact with law enforcement, and the

need to protect the public. See 18 U.S.C. § 3583(d); Wolf Child, 699 F.3d at 1089-

90.

AFFIRMED.

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