NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

TONY MILLER,

Defendant-Appellant.

No. 16-10236

D.C. No. 4:15-cr-00197-JD-1

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

James Donato, District Judge, Presiding

Argued and Submitted July 13, 2017

San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO,** District Judge.

 

Following a stipulated-facts bench trial, Tony Miller was convicted of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Miller

appeals the district court’s denial of his motion to suppress evidence. We affirm.

FILED

AUG 03 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Eduardo C. Robreno, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.
First, the officers’ search of the Nissan in which Miller was sitting when the

officers encountered him was reasonable, because the governmental interests in

searching Miller’s seat in the car outweighed his expectation of privacy. Samson v.

California, 547 U.S. 843, 848 (2006). On one hand, the government had

significant interests in conducting the search: countering recidivism among

individuals who previously have been convicted of crimes, both to protect the

public from additional crimes committed by recidivists, and to reintegrate into

society individuals who have been convicted of crimes. See Cal. Penal Code §

3450(b); see also Cal. Penal Code § 17.5, 17.7.

On the other hand, Miller had a low expectation of privacy. As a person on

Postrelease Community Supervision (“PRCS”), Miller was subject to a mandatory

search condition that permitted the officers to perform a warrantless search of his

possessions. See Cal. Penal Code § 3453(f) (“The person, and his or her residence

and possessions, shall be subject to search at any time of the day or night, with or

without a warrant, by an agent of the supervising county agency or by a peace

officer.”). Moreover, California regulation requires that persons subject to PRCS

be advised, “You, your residence, and any other property under your control may

be searched without a warrant day or night by an agent of the supervising county,

any peace officer, or law enforcement officer.” Cal. Code Regs. tit. 15, §

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3075.2(b)(5)(A) (incorporating CDCR Form 1515-CS (Rev. 08/12) by reference). 

Upon being released under PRCS, inmates are required to sign CDCR Form

1515-CS, which advises them of this search condition. Although a CDCR Form

1515-CS signed by Miller is not in the record, Miller does not claim he did not sign

the form. 

A warrantless search condition alone, even in the absence of reasonable

suspicion of criminal wrongdoing, is enough to justify a warrantless search of a

parolee. See Samson, 547 U.S. at 850. California appellate courts have likened

PRCS to parole. See People v. Douglas, 240 Cal. App. 4th 855, 864 (2015), as

modified on denial of reh’g (Oct. 19, 2015); People v. Jones, 231 Cal. App. 4th

1257, 1266 (2014). On the continuum of state-imposed punishments, “parolees

have fewer expectations of privacy than probationers, because parole is more akin

to imprisonment than probation is to imprisonment.” Samson, 547 U.S. at 850.

Therefore, Miller’s expectation of privacy was low, akin to a parolee’s expectation

of privacy.

The officers knew that Miller was subject to a search condition. Both

officers filed declarations stating that they knew that Miller was on PRCS. 

Because he was on PRCS, Miller was subject to a mandatory search condition. See

Cal. Penal Code § 3453(f). 

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Moreover, Miller’s search condition authorized search of property under his

control. See Cal. Code Regs. tit. 15, § 3075.2(b)(5)(A) (“You, your residence, and

any other property under your control may be searched without a warrant day or

night by an agent of the supervising county, any peace officer, or law enforcement

officer.” (incorporating CDCR Form 1515-CS (Rev. 08/12) by reference)

(emphasis added)). Although Miller did not own the Nissan, it was under his

control at the time of the search.

Second, the officers had the authority to detain Miller in order to accomplish

the search of his person and the property under his control. Muehler v. Mena, 544

U.S. 93, 98 (2005). The officers’ handcuffing of Miller and his placement in the

back of the patrol car were reasonable measures that did not convert his detention

into an arrest. See Halvorsen v. Baird, 146 F.3d 680, 685 (9th Cir. 1998). The

concern for officer and civilian safety as well as the possibility that Miller posed a

flight risk justified these measures. See Bailey v. United States, 568 U.S. 186,

194-99 (2013); Michigan v. Summers, 452 U.S. 692, 704-05 (1981).

AFFIRMED.

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