United States of America v. Isiain Johnsonmarin

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISIAIN JOHNSONMARIN,
Defendant - Appellant.
No. 11-10666
D.C. No. 3:11-cr-00063-WHA-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted December 7, 2012
San Francisco, California
Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.
Isiain Johnsonmarin appeals the district court’s denial of his motion to
suppress evidence and the district court’s non-mandatory condition of supervised
release. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and
we affirm in part and reverse and remand in part.
FILED
DEC 21 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Johnsonmarin argues on appeal that the district court erred in denying his
motion to suppress evidence from a searched vehicle because Johnsonmarin was
not a recent occupant of the vehicle. We disagree. The circumstantial evidence
reasonably supports the conclusion that Johnsonmarin was a recent occupant of the
vehicle, and therefore the search-incident-to-arrest exception to the warrant
requirement applies. See Arizona v. Gant, 556 U.S. 332, 351 (2009) (holding that
the vehicle of a recent occupant may be searched incident to arrest as an exception
to the warrant requirement where it is reasonable to believe the vehicle contains
evidence of the offense of arrest). Johnsonmarin argued that the police officers
could not have deemed him to be a recent occupant of the vehicle, yet
Johnsonmarin was found next to his running vehicle, the officers had observed
Johnsonmarin driving the vehicle on prior occasions, a female was in the passenger
seat, and the driver’s seat was vacant. This circumstantial evidence of spatial and
temporal proximity, especially in the absence of evidence supporting any other
explanation, suffices to prove the exception to the warrant requirement by a
preponderance of the evidence. See Thornton v. United States, 541 U.S. 615, 622
(2004) (analyzing the spatial and temporal relationship of a person and a vehicle to
determine if the person was a recent occupant of the vehicle); United States v.
Vasey, 834 F.2d 782, 785 (9th Cir. 1987) (“The government must prove the

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existence of an exception to the Fourth Amendment warrant requirement by a
preponderance of the evidence.”).
We reverse and remand to the district court the sentencing of Johnsonmarin
to clarify the non-mandatory conditions of supervised release. The district court’s
oral pronouncement of the supervised-release terms differs from the more
prohibitive written terms contained in the judgment. Whereas the oral
pronouncement prohibits Johnsonmarin from visiting the City and County of San
Francisco, the written terms also prohibit Johnsonmarin from visiting “any area
frequented by gangs.” Because the oral pronouncement controls, the written
judgment must be amended to conform. See United States v. Hicks, 997 F.2d 594,
597 (9th Cir. 1993). We remand this condition of supervised release to the district
court for clarification.
We uphold the condition of supervised release prohibiting Johnsonmarin
from living in or visiting San Francisco without the prior consent of the probation
officer. See United States v. Watson, 582 F.3d 974, 984–85 (9th Cir. 2009)
(upholding a similar condition excluding a gang member from San Francisco
without the permission of his probation officer). The condition is permissible in
this instance because of Johnsonmarin’s history with gangs in San Francisco and
because the probation officer has the authority to allow Johnsonmarin to visit San

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Francisco for legitimate reasons, such as to visit his fiancée and children. Implicit
in this authority is that it will be exercised reasonably and is subject to the judge’s
supervision in case of complaint.
AFFIRMED in part and REVERSED and REMANDED in part.

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