United States v. Tommy Leonard

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2021
• Docket: 20-10406
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 27 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10406

Plaintiff-Appellee, D.C. No. 4:14-cr-00294-JST-1 v.

TOMMY LEONARD, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Submitted August 4, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

Tommy Leonard appeals the district court’s imposition of a special

condition of supervised release requiring that he submit “his person, residence,

office, vehicle, or any property under his control” to searches “by a United States

* 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). Probation Officer or any federal, state or local law enforcement officer at any time

with or without suspicion.” We have jurisdiction under 28 U.S.C. § 1291. We

“generally review conditions of supervised release for abuse of discretion,” but we

review constitutional challenges to supervised release conditions de novo. United

States v. Gibson, 998 F.3d 415, 418 (9th Cir. 2021) (citation omitted). We vacate

and remand.

1. The challenged search condition does not violate the Fourth

Amendment. See Samson v. California, 547 U.S. 843, 857 (2006) (“[T]he Fourth

Amendment does not prohibit a police officer from conducting a suspicionless

search of a parolee.”); United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007)

(“There is no sound reason for distinguishing parole from supervised release with

respect to [a supervised release search] condition.”); United States v. Rusnak, 981

F.3d 697, 712 (9th Cir. 2020) (rejecting Fourth Amendment challenge to a

condition permitting suspicionless searches of Rusnak’s person and property).

2. We nevertheless vacate the suspicionless search condition because the

district court ordered suspicionless searches of Leonard’s “electronic devices and

their data, including cell phones, computers, and electronic storage media” without

making “a properly supported factual finding” that “establish[es] some nexus

between computer use” and the supervised release goals of deterrence, public

2 protection, or rehabilitation. United States v. Bare, 806 F.3d 1011, 1013, 1017 (9th

Cir. 2015) (citing 18 U.S.C. §§ 3553(a)(2)(B)–(D)). Any nexus is not apparent

from the record. See United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir.

2012) (clarifying that the district court need not state reasons for supervised release

conditions only “if the reasoning is apparent from the record”). We remand for the

district court either to modify the search condition consistent with this decision or

make the appropriate findings.

VACATED & REMANDED.