United States v. Steven Vasquez ( 2018 )

FILED
NOT FOR PUBLICATION
JUL 25 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50035
Plaintiff-Appellant, D.C. No.
2:16-cr-00022-DMG-1
v.
STEVEN VASQUEZ, AKA Debo, AKA MEMORANDUM*
Devo, AKA Steve-O, AKA Steven
Vazquez,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted July 9, 2018
Pasadena, California
Before: BERZON and N.R. SMITH, Circuit Judges, and NYE,** District Judge.
The government appeals the district court’s suppression of evidence
obtained through a warrantless apartment search. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David C. Nye, United States District Judge for the
District of Idaho, sitting by designation.
The district court correctly concluded that there was no probable cause to
believe that defendant Steven Vasquez, a California probationer, lived at the
searched apartment (“Apartment 26”). Considered in combination, the facts
identified by the government did not establish a “fair probability” that Vasquez
lived in Apartment 26. Florida v. Harris, 568 U.S. 237, 244 (2013) (internal
quotation marks omitted); see United States v. Grandberry, 730 F.3d 968, 975–76
(9th Cir. 2013).
First, an officer’s sighting of Vasquez in front of the apartment complex four
months before the search was a slim indication that Vasquez might have been
living in the building at the time he was seen, and essentially none that he was
living in Apartment 26 four months later.
Second, even assuming the searching officer had complete knowledge of
Vasquez’s supervision history notes (which is not clear from the record), those
notes showed that Vasquez was found at his reported address once; that no one was
at the reported address on two visits; that, during two other visits to the address, the
probation officers were told that Vasquez was not in—not that he did not live
there; and that when messages were then left for Vasquez at that residence, he
promptly responded to them. The probation supervision notes did not show the
time of day of the visits—for example, whether they occurred during times
2
Vasquez was likely to be at home—or whether the probation officer observed any
physical indications that Vasquez did or did not live in his reported room.1 On
these facts, the probation officers’ failure to find Vasquez at home in six out of
seven visits to his reported address provided scant support for the conclusion that
he lived elsewhere, considerably less than that in other cases concerning failed
attempts to locate a probationer or parolee at his reported residence. See United
States v. Watts, 67 F.3d 790, 795–96 (9th Cir. 1995), rev’d on other grounds, 519
U.S. 148 (1997); United States v. Conway, 122 F.3d 841, 842–43 (9th Cir. 1997).
Further, what had to be shown here was probable cause as to where Vasquez
did live, not as to where he did not live. The scant evidence regarding his reported
residence was for that reason as well tangential to establishing that Vasquez did
live in the apartment searched.
1
At argument, the government briefly suggested that we should consider
additional evidence concerning Vasquez’s reported residence under the “collective
knowledge doctrine.” See United States v. Jensen, 425 F.3d 698, 704 (9th Cir.
2005). The government did not make such an argument before the district court or
in its opening brief before us. The argument is therefore forfeited. See Greenwood
v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
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Third, because the confidential informant relied upon by the government met
at most two of the four factors concerning informant reliability, his tip provided at
most some suspicion—not probable cause—as to Vasquez’s residence. See United
States v. Rowland, 464 F.3d 899, 907–08 (9th Cir. 2006). Although the informant
did not report the tip anonymously, the government did not provide evidence that
the informant had ever worked with law enforcement before or that he had
otherwise provided reliable information. Although some basis of the informant’s
knowledge as to where Vasquez lived could be gleaned from his shared gang
membership with Vasquez and the fact that he lived “very close” to the searched
apartment building, no part of the tip had been corroborated before the search was
performed.
Finally, even if we disregard Vasquez’s Fourth Amendment challenge to the
opening of the doors to Apartment 26 and so consider the presence of Vasquez and
a woman in the apartment, the woman’s statement that she was in Apartment 26
“only to visit” Vasquez said very little about whether Vasquez resided there. See
Grandberry, 730 F.3d at 977. Likewise, that Vasquez was inside the apartment
demonstrated some connection to the apartment, but not whether he was a resident
or a guest. Nothing about the initial encounter—anything he said or did—pointed
in one direction or the other.
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Also significant is what the evidence did not show. Unlike in cases in which
probable cause as to a probationer’s or parolee’s residence was found, nothing the
officers observed before going to the apartment confirmed that Apartment 26 was
Vasquez’s “‘home base.’” Grandberry, 730 F.3d at 976 (quoting United States v.
Howard, 447 F.3d 1257, 1265–66 (9th Cir. 2006)); see United States v. Dally, 606
F.2d 861, 862–63 (9th Cir. 1979); United States v. Franklin, 603 F.3d 652, 656
(9th Cir. 2010); Conway, 122 F.3d at 843. They did not, for instance, see Vasquez
take out the garbage, bring in groceries, do laundry, use a key to enter the
apartment, drive up late at night, leave early in the morning, receive mail—or,
indeed, do any activity suggesting he resided there. Grandberry, 730 F.3d at 979.
The absence of such observations detracts from the officers’ already extremely thin
information linking Apartment 26 as Vasquez’s “home base.” Id. at 976 (internal
quotation marks omitted).
Probable cause “is not a high bar”; “[i]t requires only the kind of fair
probability on which reasonable and prudent people, not legal technicians, act.”
Kaley v. United States, 134 S.Ct. 1090, 1103 (2014) (internal quotation marks
omitted). Here, however, the very few indications that Vasquez might have been
living in Apartment 26, taken together, simply do not meet that threshold.
AFFIRMED.
5