United States v. Yu Park

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2021
• Docket: 18-50230
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50230

Plaintiff-Appellee, D.C. No. 8:08-cr-00197-AG-2

v. MEMORANDUM* YU SUNG PARK, AKA Sung Park,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted November 19, 2021 Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH,** District Judge.

Yu Sung Park was convicted of four offenses related to a conspiracy to rob a

fictitious stash house. Park filed a 28 U.S.C. § 2255 motion, and one of the

convictions was invalidated under Johnson v. United States, 576 U.S. 591 (2015),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The district court held

resentencing hearings, reduced Park’s custodial sentence, and imposed the

following suspicionless supervised release search condition:

Defendant shall submit his person and property including any residence, premises, vehicle, container, papers, effects, and computers or other electronic communication or digital storage devices or media under his control, to search and seizure at any time of the day or night by any law enforcement officer or probation officer, with or without a warrant, probable cause, or reasonable suspicion. The court invites the defendant to present to the Court any issues with this condition, including if the defendant feels he is being harassed.

Park appeals the “search condition as it applies to computers and other

electronic devices” on two grounds. First, he argues that allowing suspicionless

searches of his electronic data violates the Fourth Amendment. Second, he argues

that the district court abused its discretion by imposing this electronic search

condition without establishing a nexus between Park’s use of electronic devices

and the statutory goals of supervised release. Having jurisdiction under 28 U.S.C.

§ 1291, we hold that although the district court correctly found that the condition is

reasonable under the Fourth Amendment, it failed to establish the required

statutory nexus.

1. “Whether a supervised release condition . . . violates the Constitution

is reviewed de novo.” See United States v. Watson, 582 F.3d 974, 981 (9th Cir.

2009). Although the condition at issue authorizes significant intrusions into Park’s

digital privacy—an area subject to heightened protection under Riley v. California,

2 573 U.S. 373 (2014)—we agree with the district court that the condition is not

facially unconstitutional. We have permitted suspicionless searches of federal

supervisees in the past, see United States v. Betts, 511 F.3d 872, 876 (9th Cir.

2007), as well as searches of federal supervisees’ electronic data, see United States

v. Bare, 806 F.3d 1011, 1018 n.4 (9th Cir. 2015). It remains possible that on

another day we could find a particular search executed under this search condition

unconstitutional due to the “totality of the circumstances,” but the condition is at

least facially constitutional. See United States v. Knights, 534 U.S. 112, 118–19

(2001). And the district court expressly invited Park to present “any issues with

this condition” that might arise in the future.

2. However, the district court abused its discretion by imposing the

suspicionless electronic search condition without establishing a nexus between

Park’s use of electronic devices and the statutory goals of supervised release. “The

principal statutory provision that constrains the district court's discretion to impose

conditions of supervised release is 18 U.S.C. § 3583(d).” Bare, 806 F.3d at 1017

(quoting United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008)). Under

§ 3583(d), when the district court “impose[s] a condition of supervised release

permitting the search of a defendant’s personal computers,” the court must “make[]

a factual finding establishing some nexus between computer use and one of the

goals articulated in 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), or (a)(2)(D).” Id. at

3 1017. Here, the sentencing judge failed to make a factual finding that established a

nexus between computer use and a supervised release sentencing goal. Although

the court vaguely referenced a concern for public safety, see 18 U.S.C.

§ 3553(a)(2)(c), it failed to demonstrate any connection between Park’s use of

electronic devices and protection of the public. Without the required nexus, the

electronic search condition cannot stand.

Therefore, we VACATE the search condition insofar as it allows

suspicionless searches of “computers or other electronic communication or digital

storage devices or media under [Park’s] control,” and REMAND to the district

court for further sentencing proceedings.