FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30041
Plaintiff-Appellee, D.C. No.
v. 2:06-cr-00104-
FREDDIE L. FRANKLIN, EFS-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
November 5, 2009—Seattle, Washington
Filed April 29, 2010
Before: Arthur L. Alarcón, Andrew J. Kleinfeld and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
6389
6392 UNITED STATES v. FRANKLIN
COUNSEL
Tyler H.L. Tornabene, Spokane, Washington, for plaintiff-
appellee United States of America.
Christopher A. Bugbee, Spokane, Washington, for defendant-
appellant Freddie L. Franklin.
OPINION
CLIFTON, Circuit Judge:
Freddie Franklin conditionally pled guilty to being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)
and now appeals the district court’s denial of his motions to
suppress evidence and to dismiss. Franklin’s motion to sup-
press contended that a search of a motel room he occupied,
conducted without a warrant and based on Franklin’s status as
a probationer under state law, violated the Fourth Amendment
because officers did not have probable cause to believe that
he lived in the motel room. In his motion to dismiss, Franklin
argued that his plea agreement in a state court prosecution
arising out of the same conduct included a promise that fed-
eral charges would not be brought against him. We affirm.
I. Background
Because of three prior felony convictions, Franklin was in
January 2006 subject to “community custody” under Wash-
ington state law.1 As a condition of his community custody,
1
Washington law defines “community custody” as “that portion of an
offender’s sentence of confinement in lieu of earned release time or
imposed as part of a sentence under this chapter and served in the commu-
nity subject to controls placed on the offender’s movement and activities
by the department.” Wash. Rev. Code § 9.94A.030(5).
UNITED STATES v. FRANKLIN 6393
he agreed to report his current address and any change in his
address to his Community Corrections Officer (CCO), John
Hernandez. He also agreed to “abide by written or verbal
instructions issued by” Hernandez.
On January 4, 2006, Franklin told Hernandez that he was
homeless. Hernandez instructed Franklin to contact him by
midnight that night to say where he would be staying and
where he planned to reside in the future. Hernandez also
instructed Franklin to report back in person on January 17.
Franklin did not contact Hernandez before midnight as
instructed, nor did he report to Hernandez in person on Janu-
ary 17.
On January 18, between 8:30 and 9:00 am, Hernandez
received a call from a female informant with whom Franklin
had a child. The informant told Hernandez that Franklin was
living in Room 254 of a local motel. She said that Franklin
was staying with another man and that he had a handgun and
ten rounds of ammunition. Based on previous dealings with
this informant, Hernandez believed she was credible.
Hernandez spoke to his supervisor, who authorized a pro-
bation search provided that Hernandez could first confirm that
Franklin in fact resided at the motel room. Hernandez con-
tacted Spokane Police Officer Michael Roberge, who went to
The parties do not make clear whether Franklin’s community custody
was more analogous to parole (“in lieu of earned release time”) or proba-
tion (“imposed as part of a sentence”). The Government’s brief equates
Franklin’s community custody to probation, while Franklin’s brief charac-
terizes it as parole. Where this distinction might make a difference—
notably, for purposes of reasonable expectations of privacy under the
Fourth Amendment, see Samson v. California, 547 U.S. 843, 850 (2006)
(“[P]arolees have fewer expectations of privacy than probationers, because
parole is more akin to imprisonment than probation is to imprisonment.”)
—we assume, in Franklin’s favor, that his community custody is the
equivalent of probation. The assumption does not affect our result.
6394 UNITED STATES v. FRANKLIN
the motel to determine if Franklin was staying in the room.
Officer Roberge went to the front desk and showed the clerk
a booking photograph of Franklin. The clerk confirmed both
that Franklin was currently staying in Room 254 and that
Franklin had personally rented the room.
Hernandez, Roberge, and other officers went to Room 254.
They arrived before 9:45 am. Hernandez knocked on the door
and heard a loud voice, which he recognized as Franklin’s.
The voice asked, “Who is it?” Hernandez replied, “DOC”
(Department of Corrections), and Franklin opened the door.
Officers immediately restrained him. They then searched the
room and discovered a gun, which Franklin admitted was his.
Pursuant to a plea agreement, Franklin pled guilty in state
court to a state charge of unlawful possession of a firearm.
The state plea agreement provided that “[n]o person has made
promises of any kind to cause me to enter this plea except as
set forth in this statement.” The agreement made no reference
to federal prosecution.
Franklin was subsequently indicted in federal court for
being a felon in possession of a firearm and for possessing a
stolen firearm. He filed a motion to suppress evidence
obtained in the search of the motel room and a motion to dis-
miss based on the state plea agreement. After a hearing, the
district court denied both motions.
On the suppression motion, the district court found that
CCO Hernandez had probable cause to believe that Franklin
was residing in Room 254. The court also found that Her-
nandez had reasonable suspicion that Franklin had violated
his community custody agreements through his failure to
report to Hernandez on January, 17, 2006 and his failure to
comply with the address-reporting conditions of his commu-
nity custody.
The district court found that the state plea agreement was
unambiguous and that it did not preclude federal prosecution.
UNITED STATES v. FRANKLIN 6395
Because of the lack of ambiguity, the court noted that it did
not need to consider extrinsic evidence, but that even if such
evidence were considered, it would still find that there was no
agreement precluding federal prosecution.
Franklin entered a conditional guilty plea to one count of
being a felon in possession of a firearm, reserving his right to
appeal these decisions, and this appeal followed.
II. Motion to Suppress Evidence
Franklin appeals the denial of his motion to suppress on the
ground that officers lacked probable cause to believe that he
was residing in the motel room searched without a warrant.
We review the validity of a warrantless search de novo.
United States v. Johnson, 256 F.3d 895, 905 (9th Cir. 2001)
(en banc). The district court’s factual finding are reviewed for
clear error. United States v. McIver, 186 F.3d 1119, 1124 (9th
Cir. 1999).
[1] Franklin’s community custody agreements authorized
“search and seizure of [his] person, residence, automobile, or
other personal property [without a warrant upon] reasonable
cause on the part of the Department of Corrections to believe
that [he] violated the conditions/requirements or instructions”
of his community custody. The Fourth Amendment allows
officers to search the residence of a probationer like Franklin
without a warrant upon reasonable suspicion of a probation
violation. See United States v. Knights, 534 U.S. 112 (2001)
(upholding the warrantless search of a probationer’s residence
that was supported by a probation condition authorizing the
search and reasonable suspicion).
Franklin does not dispute that the officers had reasonable
suspicion that he had violated the terms of his community
custody by failing to report to CCO Hernandez as scheduled
and by failing to advise Hernandez where he was living. The
6396 UNITED STATES v. FRANKLIN
contested issue is whether the officers had sufficient basis to
believe that Room 254 was Franklin’s residence.
[2] In Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005), an
en banc panel of our court held that “before conducting a war-
rantless search [of a residence] pursuant to a parolee’s parole
condition, law enforcement officers must have probable cause
to believe that the parolee is a resident of the house to be
searched.” Id. at 1080. The probable cause standard for a
parole search necessarily applies to probation searches as
well. Both parolees and probationers “are on the ‘continuum’
of state-imposed punishments,” Samson v. California, 547
U.S. 843, 850 (2006), and parolees “have fewer expectations
of privacy than probationers, because parole is more akin to
imprisonment than probation is to imprisonment.” Id. Because
the Fourth Amendment gives parolees the benefit of probable
cause in this context, it must extend that same protection to
probationers.
[3] Probable cause requires “that the facts available to the
officer would warrant a man of reasonable caution in the
belief” that Room 254 was Franklin’s residence at the time.
Texas v. Brown, 460 U.S. 730, 742 (1983) (internal quotation
marks omitted).
[4] The facts overwhelmingly support the district court’s
finding that there was probable cause to believe that Franklin
was residing in the motel room. Before the search was con-
ducted, an officer verified with the front desk clerk that a per-
son resembling Franklin’s photograph was staying in Room
254 and had personally rented the room. After CCO Her-
nandez knocked on the door of the room, a voice from inside
called “Who is it?,” and Hernandez recognized the voice as
Franklin’s. Hernandez had previously received a tip that
Franklin was living in the room from a credible informant
whose past relationship with Franklin gave Hernandez reason
to believe that she would know where Franklin was living.
UNITED STATES v. FRANKLIN 6397
Some of those facts individually would be sufficient to sup-
port probable cause. In combination, there is no serious doubt.
That a motel room was identified as Franklin’s residence
makes this case different, but it does not make it difficult. We
recognized in United States v. Howard, 447 F.3d 1257, 1262
(9th Cir. 2006), that “[w]e have applied a relatively stringent
standard in determining what constitutes probable cause that
a residence belongs to a person on supervised release.” But
the cases cited and discussed in Howard involved parolees or
probationers thought to be living at homes identified as
belonging to others. See Motley, 432 F.3d 1072 (parolee
thought to be living at an apartment belonging to his girl-
friend); Watts v. County of Sacramento, 256 F.3d 886 (9th
Cir. 2001) (fugitive identified by an anonymous tip as possi-
bly being located at a certain address with his girlfriend and
two children); United States v. Conway, 122 F.3d 841 (9th
Cir. 1997) (probationer thought to be living at a residence not
reported as his); United States v. Watts, 67 F.3d 790 (9th Cir.
1995) (parolee said to be residing at a third party’s house);
United States v. Harper, 928 F.2d 894 (9th Cir. 1991) (paro-
lee believed to be living at his brothers’ residence); United
States v. Dally, 606 F.2d 861 (9th Cir. 1979) (parolee thought
to be residing at a third party’s apartment).
Residential arrangements take many forms. A “residence”
does not have to be an old ancestral home, but it requires
more than a sleepover at someone else’s place. “It is insuffi-
cient to show that the parolee may have spent the night there
occasionally.” Howard, 447 F.3d at 1262. That a house or
apartment belonging to someone else is also the “residence”
of a probationer is not an inference that can be drawn simply
because the probationer happens to be seen there. That a
given home is known to belong to someone else necessarily
raises at least some concern for the rights of that other person.
[5] When the location in question is a motel room, how-
ever, especially one identified as having been rented by the
6398 UNITED STATES v. FRANKLIN
person in question, establishing that location as the person’s
residence is much less difficult. There is no need to draw an
inference based solely on physical presence in someone else’s
home, and no concern about the rights of an established resi-
dent. The temporary nature of the occupancy does not change
the fact that for the night or nights that Franklin rented Room
254, he was legally entitled to use the room and to control
access to it. For that time period, the room was his residence
in the sense meant in the community custody agreements. As
such, it was subject to a warrantless search based on reason-
able suspicion.
[6] There was ample evidence to support the district
court’s finding that the officers had probable cause to believe
that Room 254 was Franklin’s residence at the time of the
search. The motion to suppress was properly denied.
III. Motion to Dismiss
Franklin also argues that the federal charges should have
been dismissed because the agreement which led to his guilty
plea in state court provided that no federal charges would be
pursued.
[7] “Plea agreements are contractual in nature and are mea-
sured by contract law standards.” United States v. De la
Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993) (quoting United
States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990)). In
United States v. Clark, 218 F.3d 1092 (9th Cir. 2000), we
stated our framework for analyzing plea agreements:
If the terms of the plea agreement on their face have
a clear and unambiguous meaning, then this court
will not look to extrinsic evidence to determine their
meaning. If, however, a term of a plea agreement is
not clear on its face, we look to the facts of the case
to determine what the parties reasonably understood
to be the terms of the agreement.
UNITED STATES v. FRANKLIN 6399
Id. at 1095 (citations omitted). We review de novo whether a
plea agreement is ambiguous. Id. A district court’s construc-
tion and interpretation of a plea agreement is a finding of fact
that we review for clear error. Id.
At the first step of the Clark analysis, the district court here
concluded that “the terms of the Plea Agreement are clear and
unambiguous and do not contain a promise that federal
charges would not be brought — nor even reference federal
prosecution.” We agree with that assessment.
[8] The only purported reference identified by Franklin in
the state plea documents to support his contention that there
was an agreement that federal charges would not be brought
is a handwritten correction of an obvious typographical error.
One line in the Findings of Fact and Conclusions of Law sup-
porting the state court guilty plea was changed, by the inser-
tion of a single handwritten word, from “The sentence holds
Mr. Franklin for his actions.” to “The sentence holds Mr.
Franklin accountable for his actions.” Franklin argues that the
word “accountable” incorporated a side agreement, referenced
nowhere else in the document, that no federal charges would
be brought against him. The district court rejected this argu-
ment, and it did not err in doing so. The insertion of the word
“accountable” simply cannot support the inference Franklin
tries to draw and is not enough to make the agreement ambig-
uous. Moreover, the plea agreement included the explicit
statement that “[n]o person has made promises of any kind to
cause me to enter this plea except as set forth in this state-
ment.” Since there was no promise not to bring federal
charges set forth in the statement, it was logical for the district
court to conclude that there was no such promise.
[9] We agree with the district court that the plea agreement
was unambiguous and did not reflect any agreement not to
prosecute Franklin on federal charges. Under Clark, that ends
the matter, and there is no need or basis for us to consider
6400 UNITED STATES v. FRANKLIN
extrinsic evidence. The motion to dismiss was properly
denied.
AFFIRMED.