FILED
NOT FOR PUBLICATION
DEC 08 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10442
Plaintiff-Appellee, D.C. No.
4:13-cr-00750-CKJ-JR-1
v.
BENJAMIN FORNES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted November 15, 2016
San Francisco, California
Before: SCHROEDER, REINHARDT, and OWENS, Circuit Judges.
Defendant-Appellant Benjamin Fornes appeals from the district court’s
imposition of a condition of supervised release, which requires him to submit to
suspicionless searches of his person, property, house, residence, vehicle, and
papers. We review conditions of supervised release for abuse of discretion.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
United States v. Bare, 806 F.3d 1011, 1016 (9th Cir. 2015). As the parties are
familiar with the facts, we do not recount them here. We affirm.
Section 3583(d)(2) requires that a supervised release condition “involve[] no
greater deprivation of liberty than is reasonably necessary for the purposes set forth
in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).” 18 U.S.C.
§ 3583(d)(2). Fornes contends that the district court’s determination that a
suspicionless search condition was reasonably necessary failed to adequately
consider his individualized circumstances. However, the record shows that the
district court sufficiently considered Fornes’s individual circumstances in imposing
the suspicionless search condition. The district court stated that the condition was
reasonable “based on the underlying nature of this conviction, which is possession
with intent to distribute a large quantity of heroin” and “given the substance abuse
issues.” The court acknowledged that the suspicionless search condition was
broad, but justified the lack of a reasonable suspicion requirement by noting that “I
think that this search condition will enhance the probation officer’s ability to
adequately supervise you.”
Furthermore, we have held that suspicionless search requirements in
conditions of supervised release are not an abuse of discretion. In United States v.
Betts, we held that a district court did not abuse its discretion when it imposed a
2
suspicionless search condition on a defendant convicted of conspiracy to commit
fraud in the credit reporting sector. 511 F.3d 872, 876 (9th Cir. 2007). Here, as in
Betts, the district court justified the reasonableness of a suspicionless search
condition based on Fornes’s individualized circumstances. In this case, these
circumstances included the nature of his crime, his risk of substance abuse, and the
probation officer’s need to adequately supervise him. Accordingly, the district
court did not abuse its discretion because it did not fail to consider whether the
suspicionless search condition was reasonably necessary, as required by section
3583(d)(2).
Fornes also argues that the district court violated section 3583(d)(3) by
failing to consider that the Sentencing Commission’s policy statements recommend
imposing a suspicionless search condition only on sex offenders, and do not
explicitly recommend such a condition for drug traffickers. Section 3583(d)(3)
provides that a supervised release condition must be “consistent with any pertinent
policy statements issued by the Sentencing Commission pursuant to 28 U.S.C.
994(a).” 18 U.S.C. § 3583(d)(3).
However, Fornes mischaracterizes the Sentencing Commission’s policy
statement as implying that suspicionless search conditions should only be imposed
on sex offenders. While the Sentencing Guidelines recommend suspicionless
3
search conditions for sex offenders, see U.S.S.G. § 5D1.3(d)(7)(C), they also state
that the same suspicionless search condition “may otherwise be appropriate in
particular cases.” U.S.S.G. § 5D1.3(d). Therefore, there is no Sentencing
Commission policy limiting suspicionless searches to sex offenders, and Fornes
fails to cite any authority to the contrary. The district court did not abuse its
discretion in imposing the suspicionless search condition without expressly
considering the Sentencing Commission’s policy statements. To the extent Fornes
suggests that reasonable suspicion is required even for sex offenders, he is
mistaken. See U.S.S.G. 5D1.3(d)(7)(c) (allowing for searches “upon reasonable
suspicion . . . , or by any probation officer in the lawful discharge of the officer’s
supervision functions”) (emphasis added).
AFFIRMED.
4
FILED
United States v. Fornes, No. 15-10442
DEC 08 2016
Reinhardt, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the memorandum disposition, but I do so noting two concerns. First,
the search condition in this case did not explicitly state that Fornes could be
searched without a warrant or reasonable suspicion. This issue, however, was not
raised on appeal and thus is not before us. Second, I am concerned by the
representation made during oral argument that suspicionless searches are, in some
districts, becoming a common condition of supervised release. Such a condition is
a serious infringement upon a defendant’s liberty and privacy, and should be
imposed only when, as here, it is specially justified by the facts of the case at hand.