United States of America v. Tommy Leonard

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOMMY LEONARD,
Defendant-Appellant.
No. 20-10406
D.C. No.
4:14-cr-00294-JST-1
MEMORANDUM*
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
FILED
AUG 27 2021
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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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
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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.
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