United States v. Howard ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10469
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00190-PMP
CURTIS RAY HOWARD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted
April 3, 2006—San Francisco, California
Filed May 25, 2006
Before: John T. Noonan and Jay S. Bybee, Circuit Judges,
and William W Schwarzer,* District Judge.
Opinion by Judge Bybee;
Concurrence by Judge Noonan
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
5787
5790 UNITED STATES v. HOWARD
COUNSEL
Franny A. Forsman, Federal Public Defender, Las Vegas,
Nevada, and Shari L. Kaufman, Las Vegas, Nevada, for the
defendant-appellant.
Daniel G. Bogden, United States Attorney, Karyn Kenny and
Christina Brown, Assistant United States Attorneys, Las
Vegas, Nevada, for the plaintiff-appellee.
OPINION
BYBEE, Circuit Judge:
Appellant Curtis Howard appeals the district court’s ruling
that the search of an apartment at which he had spent the night
was constitutional because he was on probation and officers
had probable cause to believe that he resided there. We hold
that the evidence in this case was insufficient to establish
probable cause and reverse the ruling of the district court.1
1
Howard also challenges the magistrate judge’s limitations on his cross-
examination of his probation officer, Robert Aquino, as an abuse of dis-
UNITED STATES v. HOWARD 5791
I. BACKGROUND
Curtis Ray Howard was convicted of bank robbery in 1996.
On April 14, 2003, he was placed on supervised release, and
Probation Officer Robert Aquino was assigned to monitor
him. Howard’s release was subject to a number of conditions,
including a search clause allowing the “warrantless search of
his residence, person, property, and automobile” at any time
to ensure that he was complying with the conditions of his
supervised release and that he “not associate with any persons
engaged in criminal activity . . . or convicted of a felony.”
Howard reported to Aquino that his current residence was at
4879 East Owens in Las Vegas.
Howard met Tammi Barner on a bus, and the two started
having a relationship. On May 14, 2003, Barner met with
Aquino to request permission to continue her relationship
with Howard. Barner was a seven-time convicted felon, was
on state probation, and was recovering from an addiction to
cocaine. Since the conditions of Howard’s supervised release
prevented him from associating with known felons and
Aquino and his supervisor determined that the relationship
was not conducive to Howard’s rehabilitation, he informed
Barner and Howard that they would have to terminate their
relationship. Howard agreed that he would terminate his rela-
tionship with Barner.
On February 3, 2004, a confidential informant (“CI”) called
Aquino. The CI identified himself or herself, claimed to know
Howard, and told Aquino that Howard was staying at an
apartment on 2221 West Bonanza and that Howard had a fire-
arm hidden there. Tammi Barner had previously told Aquino
that she lived at 2221 West Bonanza in apartment 49. How-
ever, there are well over a hundred apartments in the West
cretion. Because we hold that the search of the West Bonanza residence
was unconstitutional, we do not reach this question.
5792 UNITED STATES v. HOWARD
Bonanza complex, spread over three buildings; the CI did not
know in which apartment, or even in which building, the gun
was hidden. The CI also stated that he or she had not seen
Howard for at least two weeks, and denied having any motive
to lie. Aquino drove out to investigate at eight o’clock that
evening, but he did not observe Howard’s car at either the
East Owens or the West Bonanza residence. The CI also men-
tioned a local tavern where the CI claimed Howard had spent
time. Aquino drove by the tavern the following day, but did
not see Howard’s car there. Aquino did not otherwise attempt
to verify the CI’s information with anyone else.
The day after he received the CI’s call, Aquino returned to
the 2221 West Bonanza apartment complex and spoke with
Bob, a manager there. Aquino showed Bob a picture of How-
ard, and Bob confirmed that he had seen Howard in the com-
plex before. He also stated that he had seen a vehicle parked
in the complex that matched the description of Howard’s
vehicle. Manager Bob directed Aquino to speak with Curtis
Sanders, the president of the complex’s condominium
owner’s association.2 Officer Aquino then spoke to Mr. Sand-
ers, who confirmed that he had also seen Howard in the apart-
ment complex. Mr. Sanders also suggested that Howard had
been there visiting Tammi Barner. Aquino then spoke by
phone with Jim Jacobs, the owner of Barner’s condominium.
Jacobs confirmed that Tammi Barner was the legal occupant
of apartment 49, and that he had contact with someone who,
based on Aquino’s description over the phone, might have
been Howard.
2
It is not entirely clear from the record, but it appears that the complex
at 2221 West Bonanza may have had both apartments and condominiums
in it, or that the complex contained only condominiums, but that some of
the condominium owners rented them out, in whole or in part, as apart-
ments. In any event, it is clear both that Barner rented an apartment that
was owned by Jim Jacobs and that the exact nature of the complex’s hous-
ing units is not relevant to the disposition of this case.
UNITED STATES v. HOWARD 5793
Aquino was now concerned that Howard was not abiding
by the terms of his supervised release, and that he might be
using the West Bonanza residence, which Howard had not
reported to Aquino, to engage in criminal activity. This con-
cern was heightened by the fact that, during the course of his
supervision, Aquino made ten visits to Howard at his East
Owens address at early morning hours and only found him
there twice. Aquino had chosen to make early morning visits
because, based on his knowledge of Howard’s work schedule,
he concluded that this was the time at which Aquino was most
likely to find Howard in his home.
Prior to receiving the tip from the CI, however, Aquino had
not been concerned that Howard was living elsewhere.
Aquino knew that a high percentage of his visits to his super-
visees were unsuccessful, and Aquino had seen Howard at the
East Owens residence on his most recent surprise visit. At that
time, the residence appeared as if Howard was still living
there; there were pictures on the walls and there were clothes
and furniture in the house. Aquino also knew that one reason
he might not have seen Howard more frequently on his sur-
prise visits was because Howard’s work schedule was subject
to change, and that Howard was not obligated to report
changes in his work schedule to him. Moreover, on three of
Aquino’s attempted visits to Howard at the East Owens resi-
dence, Aquino had spoken with one of Howard’s neighbors,
who confirmed that Howard was still living there. On one
occasion, the neighbor told Aquino that he had just missed
Howard; another time, he said that Howard was a very quiet
guy.
After his visit to the West Bonanza complex, Aquino con-
tacted local police to determine whether Howard was the sub-
ject of any investigations. Because Howard’s file indicated
that he was previously a member of the Bloods gang, Aquino
spoke to the Las Vegas Metropolitan Police Department Gang
Unit (“Gang Unit”). He also contacted the Repeat Offender
Enforcement Squad. Neither group had any further investiga-
5794 UNITED STATES v. HOWARD
tions against Howard or information about his activities, but
both groups said they would contact Aquino if they received
any information implicating Howard’s involvement in crimi-
nal activity. An officer with the Gang Unit later called Aquino
to inform him that a reliable confidential juvenile informant
had reported that Howard was a gun dealer and that he might
possibly be among the leaders of the West Coast Bloods.
On February 7, 2004, the CI called Aquino again at approx-
imately 4:30 a.m. and informed him that Howard’s vehicle
was at the West Bonanza address. Aquino then drove to the
West Bonanza address and observed Howard’s vehicle there
at roughly 5:00 a.m., parked in the lot right below apartment
49.
Meanwhile, in response to the information that Aquino had
received from the Gang Unit, he enlisted the help of other law
enforcement to surveil Howard, both at the West Bonanza res-
idence and at the East Owens residence. Surveillance began
on February 10; as of February 20, Aquino affirmatively
knew that police had not seen Howard at the West Bonanza
residence. Surveillance continued for roughly two weeks,
until roughly March 8; Aquino did not receive any reports
from the surveilling officers stating that Howard had been
observed at the West Bonanza residence at this time, but he
did not know for certain whether Howard had been observed
there. On March 17th, Aquino returned to the leasing office
at West Bonanza to ask whether the leasing agent had seen
Howard in the complex. The agent told Aquino that he had
not seen Howard there in at least a week and a half.
Aquino then secured an order from the probation depart-
ment to search both the West Bonanza and the East Owens
residences. He arrived at the East Owens complex at 6:00
a.m. on March 30, more than seven weeks after surveillance
began, but he did not see Howard’s car in the parking lot. He
then proceeded to the West Bonanza complex, where he
observed Howard’s car parked below Barner’s apartment at
UNITED STATES v. HOWARD 5795
roughly 6:30 a.m. Aquino remained in his car and watched the
West Bonanza apartment until the rest of the search team
arrived, which was between 7:45 and 8:00 a.m. While Aquino
watched the apartment, he saw Howard come out and stand
in the doorway with no shirt on. Howard stood in the doorway
and stretched for approximately ten or fifteen minutes, then
returned to the apartment, shutting the door behind him.
Howard and Barner subsequently left the West Bonanza
apartment and began walking in different directions. After
they had separated, Aquino and another member of the search
team confronted Barner, while other officers detained How-
ard. The officers told Barner that they were going to conduct
a search of her apartment based on Howard’s presence there.
Barner stated that Howard did not live in the West Bonanza
residence and that he did not have a key, and she refused to
consent to a search of the apartment. Aquino and the other
officer then brought Barner over to where Howard was being
held. En route, Barner continued to insist that Howard did not
live at the West Bonanza apartment, but acknowledged that he
had a few personal belongings, such as some clothing, in her
apartment.
Meanwhile, out of concern for officer safety, Howard had
been handcuffed by other members of the search team, who
had also read him his Miranda rights. Aquino informed How-
ard that the West Bonanza apartment was going to be
searched. Howard admitted that he had stayed at the West
Bonanza apartment before, but denied living there and told
officers that he did not have a key to the apartment. After
again denying officers permission to enter her apartment, a
furious Barner was given permission to leave the scene, and
did so. The officers took Howard’s keys and attempted to use
them to gain entry to the search site, but none of Howard’s
keys fit the lock on the West Bonanza apartment.
Jim Jacobs, the owner of Barner’s apartment, then
approached the officers and offered to use his keys to let them
5796 UNITED STATES v. HOWARD
into her apartment.3 Aquino was also approached by another
resident of the complex, who stated that she had seen Howard
there “at least eighty to ninety percent of the time.” Jacobs
then let the officers into the apartment; they conducted a
search and found a gun in a closet, wrapped in a hat. Howard
acknowledged that the gun was his. The only other items
belonging to Howard that were found in the West Bonanza
residence were Aquino’s business card, found next to an
alarm clock in the bedroom, and a prescription with Howard’s
name on it.
After his indictment in May 2004, Howard challenged the
constitutionality of the police search. He also sought to sup-
press the incriminating statements he made after the search
(i.e., admitting the gun was his) as fruit of the poisoned tree.
Following an evidentiary hearing, the magistrate entered find-
ings and recommendations concluding that the search was
constitutional and the incriminating statements were volun-
tary. The district court adopted these findings and recommen-
dations. Howard subsequently entered a conditional plea of
guilty to charges that he had knowingly received a stolen fire-
arm in violation of 18 U.S.C. § 922(j) while reserving the
right to appeal the validity of his probation search. Howard
was sentenced to 120 months followed by a term of super-
vised release of three years. This appeal followed.4
II. ANALYSIS
[1] As a condition of his supervised release, Howard con-
sented to the “warrantless search of his residence, person,
property, and automobile” at any time. Officer Aquino and
the other officers who searched the West Bonanza residence
3
The government concedes that Jacobs did not have the power to con-
sent to a search of the apartment.
4
We review the denial of a motion to suppress evidence de novo. United
States v. Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002). The district
court’s findings of fact are reviewed for clear error. Id.
UNITED STATES v. HOWARD 5797
relied on this clause for the authority to search the residence;
they did not have a search warrant, nor were there exigent cir-
cumstances. However, by its own clear and explicit language,
the search clause only applies if the West Bonanza apartment
was Howard’s residence. “[B]efore conducting a warrantless
search pursuant to a parolee’s parole condition, law enforce-
ment officers must have probable cause to believe that the
parolee is a resident of the house to be searched.” Motley v.
Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc).5 See
generally Georgia v. Randolph, ___ U.S. ___, 126 S. Ct. 1515
(2006) (discussing and analyzing the rights of co-tenants and
the Fourth Amendment implications of co-tenancy).
[2] We have applied a relatively stringent standard in deter-
mining what constitutes probable cause that a residence
belongs to a person on supervised release. It is insufficient to
show that the parolee may have spent the night there occa-
sionally. Instead, the facts known to the officers at the time
of the search must have been sufficient to support a belief, in
“a man of reasonable caution,” that Howard lived at 2221
West Bonanza. Texas v. Brown, 460 U.S. 730, 742 (1983)
(internal quotation omitted); Dawson v. City of Seattle, 435
F.3d 1054, 1062 (9th Cir. 2006); see also Illinois v. Gates,
462 U.S. 213, 238 (1983). This is a higher standard than a
mere well-founded suspicion. See United States v. Martell,
654 F.2d 1356, 1358 (9th Cir. 1981).
5
Before Motley, this question was a matter of some confusion in our
case law. Compare, e.g., United States v. Dally, 606 F.2d 861, 863 (9th
Cir. 1979) (holding that police must have reason to believe that a resi-
dence belonged to a parolee before executing a search pursuant to a search
clause), with United States v. Harper, 928 F.2d 894, 896 (9th Cir. 1991),
(requiring that officers have probable cause to believe that the probationer
lived there). See generally United States v. Watts, 67 F.3d 790, 795 (9th
Cir. 1995) (“We need not resolve the apparent tension between Harper’s
probable cause standard and the ‘reasonableness’ standard enunciated in
Dally . . . .”), overruled on other grounds, 519 U.S. 148 (1997). Our en
banc decision in Motley has conclusively settled this question: The Fourth
Amendment requires probable cause in these circumstances. See Motley,
432 F.3d at 1080.
5798 UNITED STATES v. HOWARD
An examination of our case law demonstrates just how
stringent this standard is. In Dally, officers surveilled Holi-
day, a parolee they were investigating, at Dally’s apartment.
606 F.2d at 862. After arresting Holiday, and over Dally’s
vehement objections, the police searched Dally’s apartment.
Id. The government argued that the search was lawful under
the search clause of Holiday’s parole. However, the search
clause only permitted officers to search his residence; thus,
the question was whether probable cause supported the
police’s belief that Holiday resided at Dally’s apartment.6
In Dally, the police had strong evidence to conclude that
Holiday was living with Dally; for starters, a federal agent
who was also investigating Holiday had told Holiday’s parole
officer that he was living there. 606 F.2d at 862. The police
then conducted surveillance, during which they photographed
Holiday taking out the trash, bringing in his laundry, and chat-
ting with the neighbors. Id. Officers returned a week later to
find Holiday’s car parked near the house with fogged win-
dows, indicating it had been parked overnight; Holiday left
the house the next morning, driving in a different car that had
also been parked there overnight. Id. He returned with dry
cleaning, changed his clothes, and left the house again, carry-
ing laundry. Id. He later returned with more dry cleaning, and
officers observed him use a key to open the door. Id. Holiday
had also failed to return a message left for him at his reported
address. Id. We upheld the search of the residence, finding
that these facts were sufficient to establish probable cause.
We were similarly stringent in Harper. In that case, an
arrest warrant had been issued for parolee David Harper, but
his parole officer did not have a current address for him and
could not locate him. Harper, 928 F.2d at 895. A tip focused
6
Technically, the Court considered whether the facts “supported a rea-
sonable belief” that Holiday lived with Dally. Id. at 863. Prior to our dis-
cussion in Motley, we had occasionally conflated this standard with
probable cause. See Gorman, 314 F.3d at 1115; see also footnote 5, supra.
UNITED STATES v. HOWARD 5799
the police’s attention on 10 Manzanita, where Harper’s broth-
ers lived. Id. After some surveillance, Harper’s parole officer
executed the warrant by entering the 10 Manzanita residence
and arresting him. Id. However, the warrant only authorized
the police to enter the residence of David Harper; it did not
authorize entry into his brothers’ residence. Therefore, the
arrest was lawful only if the police had probable cause to
believe that he lived at 10 Manzanita. We wrote that:
Here, the police knew that the home at 10 Manza-
nita was leased to the Harper family and that Tommy
and James Harper, two of David’s brothers, lived
there; an uncorroborated source had informed them
that David lived there as well. Through intermittent
surveillance, the police observed David entering the
home with his own key once or twice during a three
day period. The police also knew that David had
lived with his family at another address immediately
before he was incarcerated, suggesting that he had
no independent residence and would resume living
with them upon his release. In addition, the police
saw cars belonging to known associates of David’s
parked at the Harper family home. This information
was sufficient to give the police probable cause to
believe that David resided there—but just barely. It
would have been far more prudent for the police to
have obtained a search warrant.
Id. at 896.
In Watts, officers searched the house of Sonia Lee on the
basis that probationer Watts was residing in the house with
her. 67 F.3d at 793. We again found that the police had proba-
ble cause to believe that Watts lived with Lee, but only on
very strong facts. “In weekly visits to [Watts’s reported
address, Watts’s parole officer] had located Watts there only
once in fourteen months.” Id. at 795. On the one occasion that
he found Watts there, the parole officer “looked around the
5800 UNITED STATES v. HOWARD
house and concluded that what was supposed to be Watts’s
bedroom lacked the usual signs of residency, such as clothing
and personal belongings.” Id. A “confidential reliable infor-
mant, who had provided information . . . more than a dozen
times and whose tips had resulted in multiple convictions,”
informed officers that Watts was living with Sonja Lee. Id.
Subsequent police surveillance confirmed both the details and
the substance of the informant’s tip. Id. The police observed
Watts enter Lee’s house while he was under surveillance. Id.
“[O]fficers saw Watts go to [the address Watts had claimed
as his residence], knock on the door, then leave when no one
responded, strongly suggesting that Watts did not live there.”7
Id. Finally, Sonja Lee told the police that Watts lived in her
house with her. Id. at 793.
In United States v. Conway, 122 F.3d 841 (9th Cir. 1997),
the police searched a residence at 1930 West College; Con-
way, a probationer, had not reported this as his address. The
search revealed a gun and Conway pled guilty to being a felon
in possession of a firearm while reserving the right to chal-
lenge the legality of the search. On appeal, he argued that the
search was not permitted by the terms of his probation
because, under the facts known to them at the time, the police
did not have probable cause to believe that Conway lived at
the West College address.8 We again approved the search, but
only on a similarly strong fact pattern. First, there was strong
evidence to suggest that Conway was not actually residing at
his reported address: Conway’s probation officer “had been to
7
Watts also had a key to, and a garage door opener for, Lee’s residence,
but we explicitly did not consider this evidence in finding that probable
cause existed. Id. at 796 n.1.
8
The majority in Conway did not apply Dally or Harper and their prog-
eny. For state law reasons, the majority only required a “well-founded sus-
picion” that Conway was residing at the residence in question. However,
Judge Wallace, in his concurrence, applied Dally, Harper, and Watts, and
concluded that probable cause supported the search. Conway, 122 F.3d at
844-45 (Wallace, J., concurring). We therefore include the facts of this
case in the discussion.
UNITED STATES v. HOWARD 5801
[Conway’s] reported address on 21 occasions, but had found
[him] there only once.” Id. at 842. The only possessions there
that could be identified as belonging to him were a pair of
socks. Id. at 843. The evidence tying Conway to the West
College address was even more powerful:
A confidential informant told [officer] Turcin[, Con-
way’s parole officer,] that a man who met Conway’s
description and who went by the name “Arab,” Con-
way’s known street moniker, often walked his dog at
night outside the 1930 West College address. Turcin
discovered independently that Conway had a dog.
Police observed Conway leaving the 1930 West Col-
lege home at 8:45 am. When Turcin told Conway
that he wanted to go to 1930 West College, Conway
said that “his” dog was there and would attack any-
one who entered. At the residence, Conway opened
the front door with his own keys. Turcin observed
mail and notes addressed to Conway; Conway iden-
tified a bedroom in the house as “his,” and Turcin
saw clothes in the bedroom that Conway had worn
on visits to Turcin’s office.
Id.
In Motley, the most recent development in this line of
cases, officers were looking for a parolee at an apartment
belonging to his girlfriend, and we again found that their
belief that the parolee lived there was supported by probable
cause.9 432 F.3d at 1075. “ ‘[E]verything’ was in her name”
and “she paid the rent and all bills associated with the apart-
ment,” id.; however, her address was the most recent address
9
The facts of Motley are sufficiently different from those presented here
that it is not of much use for comparison purposes. However, since Motley
is a very recent en banc case that considers the issue presented here, any
comprehensive examination of our case law on this subject must discuss
it, at least briefly.
5802 UNITED STATES v. HOWARD
the parolee had reported to his parole officer, id. at 1075-76.
At the time of the search, the parolee was actually in state
custody, but the officers conducting the search were not aware
of this. Id. at 1076. When the officers knocked on the door,
they were informed repeatedly by the parolee’s girlfriend,
who lived there with their infant son, that the parolee did not
live there and that he was in state custody. Id. The police
refused to listen and proceeded to search the residence. Id. We
affirmed the district court, holding that the officers were enti-
tled to rely on their knowledge of the parolee’s most recent
address, as reported by the parolee to his parole officer. Id. at
1082.
When presented with weaker facts, we have not hesitated
to rule that officers could not justify a search for lack of prob-
able cause. In Watts v. County of Sacramento (Watts II), 256
F.3d 886 (9th Cir. 2001), the police received an anonymous
tip on the whereabouts of Chris Burgess, a suspected mur-
derer for whom an arrest warrant had been issued. The police
officer assigned to investigate the tip was informed that: “(1)
Burgess was a black male standing [6’ 1”] and weighing 200
pounds; (2) there was a warrant for Burgess’s arrest on a mur-
der charge; and (3) Burgess was possibly located at a certain
address with his girlfriend and two children.” Id. at 888. Offi-
cers went to the residence and knocked on the door, which
was opened by Chris Pryor. Pryor was wearing boxer shorts
and he fit Burgess’s general description. Id. The officers
asked Pryor if his name was Chris; when he said that it was,
they handcuffed him and performed a protective sweep of the
house. Id.
Pryor and his girlfriend Watts then brought suit, alleging
various state torts and civil rights claims. The district court
dismissed Watts’s claim for illegal entry because it found that
officers had probable cause to believe that Burgess was a resi-
dent of the Pryor home. Watts v. County of Sacramento, 65 F.
Supp. 2d 1111, 1117 (E.D. Cal. 1999). We reversed. We held
that the anonymous tipster’s information had not been suffi-
UNITED STATES v. HOWARD 5803
ciently corroborated, and that “the mere fact that Pryor
answered the door of his girlfriend’s home in his boxer shorts
did not establish a reasonable belief that he lived there.” Watts
II, 256 F.3d at 890.
[3] In considering the cases where this Court upheld the
search of an address not reported by a parolee—i.e., Dally,
Harper, Watts, and Conway—certain patterns clearly emerge.10
First, in each of these cases, the parolee did not appear to be
residing at any address other than the one searched. In three
of these four cases, the parolee had reported a different
address, but officers had good reason to believe that he was
not actually residing at the reported address. In Dally, the
parolee did not return messages left for him at his reported
address and the parole officer was unable to locate him there.
In Watts, the parole officer had found the parolee at his
reported residence only once after more than fifty prior visits
to his reported address. On that one trip, the officer found that
the “residence” “lacked the usual signs of residency, such as
clothing and personal belongings.” Watts, 67 F.3d at 795.
Then, while conducting surveillance of Watts, the police
observed him walk up to his reported address and knock on
the door; when no one responded, he left, “strongly suggest-
ing that Watts did not live there.” Id. In Conway, after more
than twenty visits, the officer had only found Conway at his
reported residence once, and the only property there that
could be identified as Conway’s was a single pair of socks.
Only in Harper did we uphold a search when police lacked
grounds to believe that the parolee had reported a sham
address—and in Harper the parolee did not have any reported
address on file.
[4] Second, in each of these four cases, the officers had
directly observed something that gave them good reason to
10
We do not consider Motley in this analysis, because in that case the
police were searching the residence that Motley had most recently
reported as his own.
5804 UNITED STATES v. HOWARD
suspect that the parolee was using his unreported residence as
his home base: In Dally and Watts, the police saw the parolee
running errands to and from the residence. In Harper, the
police saw Harper entering and leaving the house on his own
multiple times in the days before the search; they also saw the
cars of his known associates parked outside. In Conway, the
officer saw mail and notes addressed to Conway at the
address in question.
[5] Third, in each of Dally, Harper, Watts, and Conway, the
parolee had a key to the residence in question.11 In three of
these four cases—Dally, Harper, and Conway—the police
saw the parolee use his key to enter the residence.12 In Dally
and Conway, officers saw the parolee use his key on the same
day that they searched the residence in question; Harper was
observed entering with his key a few times over the three-day
period preceding the search.
[6] Lastly, in two of these cases, either the parolee’s co-
resident or the parolee himself identified the residence in
question as that of the parolee. Conway referred to one of the
bedrooms as “his,” Conway, 122 F.3d at 843, and Sonja Lee,
Watts’s girlfriend and the legal occupant of the house in ques-
tion, told police that she and Watts lived there together, Watts,
67 F.3d at 793. It will often be against a parolee’s penal inter-
ests to admit to living at an unreported residence; such an
admission is thus unlikely to be motivated by self-interest and
is therefore entitled to some credibility. The same logic
applies to a similar statement made by a co-resident of the paro-
lee.13
11
The Watts court explicitly did not consider this fact in making its deci-
sion. 67 F.3d at 796 n.1. However, it is worth noting that, as a factual mat-
ter, Watts did have a key.
12
In Watts, the police saw Watts enter the residence searched, but it is
unclear whether or not he used his key to do so. See 67 F.3d at 793, 795.
13
By the same logic, the denial by a parolee or his co-resident that the
parolee lives at an unreported address is not necessarily entitled to credi-
UNITED STATES v. HOWARD 5805
[7] None of these commonalities is presented by the facts
of this case. While Aquino had visited Howard at home ten
times and had only found him there twice, Aquino testified
that this was not a particularly low success rate, especially in
light of Howard’s potential work schedule. At 20%, Aquino’s
success rate in visiting Howard was much higher than the
parole officers in Watts (< 2%) and Conway (< 5%).14 Aquino
also spoke to a neighbor on at least three of those visits; in
one of those conversations the neighbor informed Aquino that
he had just missed Howard, and in the other the neighbor con-
firmed that Howard was still living at the East Owens resi-
dence. Unlike Watts and Conway, on the occasions when
Aquino did find Howard at the East Owens address, the resi-
dence looked as if Howard was still living there. Nor was this
case like Dally; there is no indication that Howard did not
respond to messages left at his East Owens address. Aquino
testified that he had not been worried that Howard was not
bility because it is frequently tinged with self-interest. We have therefore
accorded little import to such denials in our case law. See, e.g., Motley,
432 F.3d at 1082 (“[The co-resident’s] statement that [the parolee] did not
live at that address, coming from a less-than-disinterested source, did not
undermine the information the officers previously had received . . . .”);
Dally, 606 F.2d at 862, 863. In this case, Barner clearly had a motive to
lie. Even though she knew that Howard was already violating the condi-
tions of his release by seeing her, she might well have reasoned that he
was more likely to be re-incarcerated if officers discovered that he had
completely flouted the conditions of his supervised release by moving in
with her. Since their relationship was presumably a violation of her parole
as well, she would also want to downplay the extent of contact she had
with Howard in order to keep herself out of custody. But, of course, the
fact that she denied that Howard lived there certainly cannot be taken as
evidence that he actually did live there.
14
In Watts, the parole officer had made weekly visits to the reported res-
idence for fourteen months but had only seen him there once, constituting
one successful visit in at least sixty attempts. 67 F.3d at 795. In Conway,
the parole officer had one successful visit in twenty-one attempts. 122
F.3d at 842. It is not clear from Dally what the officer’s success rate was
with home visits. In Harper, the parolee did not have a reported address,
so there was no success rate to consider.
5806 UNITED STATES v. HOWARD
living at the East Owens address until after he got the call
from the CI.
Just as there was more evidence that Howard was still liv-
ing at the East Owens address than that the parolees in Dally,
Watts, and Conway were living in their reported residences,
there was also less evidence that Howard was living on West
Bonanza. Aquino’s investigation revealed that several of the
Bonanza complex’s residents and staff had seen Howard there
before, and that he had been there with Barner. However, the
mere fact that he had visited Barner there in early February
was not sufficient to create probable cause that Howard lived
there at the end of March. This is especially true in light of
the fact that the police had watched the West Bonanza resi-
dence for nearly an entire month and there were no reports of
Howard even entering the apartment complex, let alone
Barner’s apartment. The search was conducted on March 30;
prior to that day, the police had not seen either Howard or his
car in the West Bonanza complex since February 7. February
7 was also the last time that police had had contact with the
CI, the only person who had ever actually said that Howard
was living at West Bonanza. On the day of the search, even
the apartment manager who had seen Howard in the complex
in early February told the police that he had not seen Howard
there in at least a week and a half.
The best evidence the police had that Howard lived at West
Bonanza was the statement by one of Barner’s neighbors that
she had seen Howard there “at least eighty to ninety percent
of the time.” However, this statement was not credible, as it
was utterly irreconcilable with the prior observations of the
surveilling officers; it was also contradicted by the statements
of the complex’s staff. The evidence that Harper was living
at West Bonanza was much flimsier than the strong evidence
the police directly observed in other cases—repeated errand-
running in Dally and Watts, numerous comings and goings
and known associates congregating in Harper, and mail,
notes, and personal effects in Conway.
UNITED STATES v. HOWARD 5807
The police also affirmatively knew that Howard did not
have a key to the West Bonanza residence, as they checked
each of his keys against Barner’s door on the morning of the
search. Ultimately, the police needed to be let in by Jacobs,
the apartment’s owner, before they could conduct their search.
This stands in stark, diametric contrast to Dally, Harper,
Watts, and Conway, in each of which the parolee had a key,
and in three of which the police saw him use it.
Nor did either Howard or Barner tell police that Howard
lived at West Bonanza, as happened in Watts and Conway.
While each acknowledged that Howard had a few things
there, each repeatedly and consistently denied that Howard
lived at the West Bonanza residence in the strongest possible
terms, and Barner ultimately stormed off, furious. The facts
of this case simply do not track the exacting fact patterns that
we approved in Dally, Harper, Watts, and Conway.
On the other hand, this case does resemble Watts II in an
important way. Here, the police significantly relied on the fact
that they saw Howard stretching in the doorway of Barner’s
apartment the morning of the search. This very closely paral-
lels Watts II, where we held that “the mere fact that [a man]
answered the door of his girlfriend’s home in his boxer shorts
did not establish a reasonable belief that he lived there.” 256
F.3d at 890.
[8] We therefore hold that the police do not have probable
cause to believe that a parolee lives at an unreported residence
when: (1) visits to the parolee’s reported address suggested
that the parolee continued to reside there; (2) the police
watched the address in question for a month and did not see
the parolee there; (3) no credible witnesses had seen the paro-
lee at the address in question for some time before the search;
(4) the parolee did not have a key to the residence in question;
and (5) neither the parolee nor his purported co-resident
admitted to his residence there.
5808 UNITED STATES v. HOWARD
[9] The magistrate judge and district court erred in finding
that the facts of this case provided the police with probable
cause to believe that Howard resided in the West Bonanza
apartment. Because Howard only admitted that the gun was
his after the police search found the gun, these self-
incriminating statements must also be excluded as fruit of the
poisonous tree.
III. CONCLUSION
We reverse the district court’s ruling that the police had
probable cause to believe that Howard resided at the West
Bonanza residence.
[10] The judgment of the district court is REVERSED, and
the plea of guilty is VACATED.
NOONAN, Circuit Judge, concurring, dubitante:
“In sum, we hold that before conducting a warrantless
search pursuant to a parolee’s parole condition, law enforce-
ment officers must have probable cause to believe that the
parolee is a resident of the house to be searched.” Motley v.
Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc). Apply-
ing this standard with the help of five cases where we found
probable cause “but just barely,” the majority concludes that
probable cause was lacking here. I cannot deny the controlling
standard set by Motley and the pattern of what constitutes
probable cause are not unreasonably presented. Bound by cir-
cuit precedent, I cannot suppress a doubt that circuit precedent
conforms with the constitution as interpreted by the United
States Supreme Court.
As recently as 2000, this circuit distinguished between
“probationary searches” and “investigative searches” directed
at uncovering evidence of criminal activity by a felon on pro-
UNITED STATES v. HOWARD 5809
bation. In United States v. Knights, 534 U.S. 112 (2001), this
distinction was held to be without foundation. Id. at 122. The
Supreme Court analyzed the search of the probationer’s prem-
ises in terms of what was reasonable, assessing “reasonable,”
on the one hand, in the degree a search intruded on a proba-
tioner’s privacy and, on the other hand, in the degree a search
was needed to promote legitimate governmental interests. Id.
at 118-19.
As far as the individual was concerned, the Supreme Court
noted that a probationer was a person undergoing punishment.
A probationer did not enjoy “some freedoms enjoyed by law-
abiding citizens.” Id. at 119. The condition set on probation
as to search “significantly diminished Knights’ reasonable
expectation of privacy.” Id. at 120.
As to the government’s interest, it is “the very assumption
of the institution of probation” that a probationer is more
likely than an ordinary citizen to violate the law. Id. at 120
(quotation omitted). And that assumption is borne out by the
discouraging statistics on the criminal acts of probationers. Id.
Along with the consequent need for greater governmental vig-
ilance goes the incentive that a probationer has to go to
greater lengths to conceal his new criminal activity, which, if
detected, will send him back to prison in a summary proceed-
ing. Id.
It does not seem to me that the majority’s conclusion here
takes into account either Howard’s diminished expectation of
privacy or the government’s interest in keeping him from pos-
session of a firearm. In effect, Howard is given a safe house
where, as long as he has a cooperative girlfriend, he can stash
his gun. That safety zone is surely not what the majority
wants to create but it is the result of the rigid application of
our precedents without attention to the perspectives on rea-
sonableness introduced by Knights.
My doubt is doubled by the teaching that “the Fourth
Amendment protects people, not places.” Katz v. United
5810 UNITED STATES v. HOWARD
States, 389 U.S. 347, 351 (1967). Application of this insight
in Katz enlarged the scope of the protection. Application here
contracts it: a probationer gets less protection than the inno-
cent homeowner. The contraction is not a problem. Applica-
tion of axioms across the board sometimes help, sometimes
hurt particular parties. That the Fourth Amendment should not
offer special sanctuary to felons serving part of their sentence
is an outcome not to be regretted.