Chong v. United States

112 F.4th 848

Harson CHONG, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Tac Tran, aka Tran Tac, aka Bruce Tran, aka Tack Tran, aka Tak Tran, aka Tau Tran, aka Ouc Wong, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 23-55140, No. 23-55142

United States Court of Appeals, Ninth Circuit

Argued and Submitted March 26, 2024 San Francisco, California

Filed August 14, 2024

D.C. Nos. 2:19-cv-04028-ODW, 2:12-cr-01016-ODW-2, 2:19-cv-04025-ODW, 2:12-cr-01016-ODW-1

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Todd W. Burns (argued), Burns & Cohan Attorneys at Law, San Diego, California, for Petitioner-Appellant.

Rosalind Wang (argued) and David R. Friedman, Assistant United States Attorneys; Bram M. Alden, Assistant United States Attorney, Chief, Criminal Appeals Section; E. Martin Estrada, United States Attorney; United States Department of Justice, Office of the United States Attorney, Los Angeles, California; for Respondent-Appellee.

Before: Daniel A. Bress and Patrick J. Bumatay, Circuit Judges, and Robert S. Lasnik,^* District Judge.

Per Curiam Opinion;

Concurrence by Judge Bumatay.

OPINION

PER CURIAM:

In their federal post-conviction motions, Harson Chong and Tac Tran allege they received ineffective assistance of counsel because their counsel failed to object to the search of Chong's home on Fourth Amendment grounds. They claim that a Los Angeles County Sheriff's Department deputy entered the curtilage of Chong's home without a warrant or other proper justification. And because trespassing the curtilage led to spotting Tran with a baggie of drugs and the eventual discovery of guns, money, and more drugs in the home, they assert all the evidence should have been suppressed. Whether they are right depends on where the sheriff's deputy was standing—on Chong's curtilage or elsewhere —and why the deputy entered this part of Chong's property. On remand from this court, the district court was asked to determine exactly where the deputy stood when he saw the drugs in the garage.

We now have that answer. Just one foot away from the home. At that distance, we have no doubt that the deputy physically trespassed onto the curtilage. And the deputy's unconventional manner of entry onto the property objectively manifested his investigatory purpose, confirming that this trespass was unlicensed. Without a warrant, consent, or other exigency, this was unreasonable under the Fourth Amendment. The unreasonableness of the search was not merely debatable but obvious, especially in the wake of the Supreme Court's seminal curtilage decision in Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), which was issued well before Chong and Tran's trial. But for no strategic reason, defense counsel failed to make this clearly winning curtilage argument. Given this, Chong's counsel was ineffective in failing to move to suppress the evidence found in his house. But because Tran lacked standing to challenge the search, we see no ineffective assistance on his counsel's part.

For these reasons, we reverse the district court's denial of Chong's motion under 28 U.S.C. § 2255 and direct the district court to grant that relief on remand. As to the denial of Tran's post-conviction motion, we affirm.

I. Background

We begin with some of the key facts. In early 2012, a federal wiretap intercepted telephone calls between Hao Tang, a drug distributor who was the target of a Department of Homeland Security investigation, and Tran, a state parolee. Those phone calls led authorities to believe that Tran had violated his parole conditions by engaging in criminal activity.

This is where Chong's house comes in. The phone calls linked Tran to a house located in the Los Angeles suburbs, after Tran was overheard giving Tang directions there. Although detectives at the time claimed they thought Tran lived at the house, he did not. The house was actually owned by Chong. Chong, who was Tran's nephew, lived in the house with his girlfriend, sister, his sister's husband, and their infant son.

In July 2012, Los Angeles County Sheriff's Department deputies set up surveillance outside Chong's house. The house was located at the end of a cul-de-sac with a short driveway and a two-car, attached garage facing the street. At around 9:00 p.m., Tran arrived at the house and walked through the front door without waiting for someone to open the door, although the deputy conducting surveillance did not see if Tran had a key to the residence. Shortly after, the garage door opened. At that point, the deputies believed they could conduct a parole search at the home based on Tran's presence there.

The deputies, including Deputy Choong Lee, approached Chong's home by entering the next-door neighbor's yard and hopping over the retaining wall and bushes on the left side of the property line. The deputies then crossed the front of Chong's house and approached the open garage by walking between the left-side doorframe and a car parked on the driveway. As they approached the garage door and driveway, they hugged a white lattice fence that partially shielded the front door. As Deputy Lee stood on the driveway, about one foot from the open garage door, he saw Tran at a coffee table in the garage with two other men. On seeing Deputy Lee, Tran appeared startled and tossed a baggie of methamphetamine onto the table in front of him. The deputies subsequently detained Tran and seized the baggie.

The following depiction overlaid on a photograph of the house shows the path the deputies took to approach the garage. As seen below, the garage entrance was fully exposed from the sidewalk and no more than 1½ car lengths from the sidewalk. There was no fencing, vegetation, or other permanent obstruction or barrier between the sidewalk and the garage entrance. The garage was attached to the front of the house.

The deputies then conducted a protective sweep of the house, finding a large amount of cash in the living room. After the house was secured, a little after 11:00 p.m., the deputies obtained a search warrant for the house. Deputies then found large amounts of ecstasy, methamphetamine, cocaine, and marijuana; three guns; ammunition; and digital scales. Tran and Chong were later charged with federal drug and gun offenses.

During pretrial proceedings, Tran moved to suppress evidence from the search of Chong's house. He argued the deputies lacked probable cause to believe he was residing at the house, and so the parole-search justification was not valid. In a declaration, Tran stated that he did not live at the house. Chong also moved to suppress. In his declaration, Chong asserted that Tran "does not live with me," but he "visit[s] me from time to time." Neither declaration discussed whether Tran was staying at the house overnight that evening.

The district court denied the suppression motions. At first, the district court ruled that the search was justified by the parole-search exception. It found that the deputies had probable cause to believe that Tran was using the house as his "abode" based on his "comings and goings." After the district court's pre-trial ruling, we decided United States v. Grandberry, 730 F.3d 968 (9th Cir. 2013). Grandberry explained that for parole searches, "probable cause as to residence exists if an officer of 'reasonable caution' would believe, 'based on the totality of [the] circumstances,' that the parolee lives at a particular residence." Id. at 975 (simplified). We further emphasized that this is "a 'relatively stringent' standard" that requires "'strong evidence' that the parolee resides at the address." Id. at 976 (simplified).

In light of Grandberry's explanation of the probable cause requirement, the district court reversed course and decided that law enforcement had not adequately surveilled Chong's home and thus could not point to sufficient facts to demonstrate probable cause that Tran lived there. Even so, the district court denied the suppression motion, concluding that Deputy Lee observed Tran discard the drugs in "plain view" and thus the later search of the garage was justified by exigent circumstances —needing to secure the drugs. At trial, Chong and Tran were found guilty on all charges.

After their convictions were affirmed on direct appeal, Chong and Tran moved for post-conviction relief under 28 U.S.C. § 2255. Chong and Tran alleged that their counsel was ineffective for failing to assert that the deputies trespassed onto the curtilage of Chong's home. Tran also alleged that his counsel was ineffective for failing to submit three declarations from residents of Chong's home supporting Tran's standing to challenge the search of the home. Based on the lack of boundaries in front of Chong's house, the district court determined that the deputies didn't enter the curtilage, found no ineffective assistance of counsel, and denied the post-conviction relief motions.

Chong and Tran appealed. We consolidated the appeals and vacated and remanded. We wanted the district court to figure out precisely where Deputy Lee stood when he observed Tran with the baggie of drugs, which we thought crucial to the curtilage analysis. On remand, the district court conducted an evidentiary hearing, at which Deputy Lee testified that he was just one foot away from the threshold of the garage entrance when he witnessed Tran throw the baggie of methamphetamine. The district court still denied post-conviction relief because it did not consider the area where the deputy stood curtilage and found no expectation of privacy in the opened garage.

We review a district court's decision to deny a § 2255 motion de novo. United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010). We review the factual findings underlying a district court's § 2255 decision for clear error. Id.

II. Ineffective Assistance for Failing to File ...