Cuevas v. State of California ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO CUEVAS; HEATHER 
BURLETTE,
Plaintiffs-Appellants,
v.
JON DE ROCO; THE EL DORADO
COUNTY SHERIFF’S OFFICE; JEFF
NEVES; RICHARD HORN; MICHAEL No. 06-15403
COOK; CHRISTOPHER STARR; BRIAN D.C. No.
GOLMITZ,  CV-04-02092-
Defendants-Appellees, MCE/GGH
and OPINION
RICK RIMMER; SHARON JACKSON,
and THE VON HOUSEN AUTOMOTIVE
GROUP, doing business as
Mercedes Benz of El Dorado
Hills,
Defendants.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted December 3, 2007
Submission Vacated December 5, 2007
Resubmitted June 27, 2008
San Francisco, California
Filed June 27, 2008
Before: Betty B. Fletcher, Marsha S. Berzon, and
Johnnie B. Rawlinson, Circuit Judges.
7661
7662 CUEVAS v. DE ROCO
Per Curiam Opinion
7666 CUEVAS v. DE ROCO
COUNSEL
Mark A. Miller (argued), of the El Dorado Hills Law Group,
for the plaintiffs-appellants.
James E. Flynn (argued), David A. Carrasco, Frances T.
Grunder, James M. Humes, and Bill Lockyer, of the office of
the Attorney General of the State of California, for the state
defendant-appellee.
Franklin G. Gumpert (argued), of Barkett & Gumpert, for the
county defendants-appellees.
CUEVAS v. DE ROCO 7667
OPINION
PER CURIAM:
Plaintiffs Armando Cuevas and Heather Burlette appeal the
district court’s grant of summary judgment against them on
their civil rights action brought pursuant to 42 U.S.C. § 1983.1Although Plaintiffs alleged a variety of constitutional viola-
tions in the district court, they press on appeal only their claim
that a warrantless entry into their residence on February 25,
2004, was unlawful under the Fourth Amendment to the Con-
stitution.
Viewing the facts in the light most favorable to Plaintiffs,
as we must, we conclude that Deputy Sheriff Christopher
Starr violated Plaintiffs’ Fourth Amendment rights and is not
entitled to qualified immunity. We therefore reverse the dis-
trict court’s grant of summary judgment to Starr. However,
we conclude that Deputy Sheriffs Richard Horn and Michael
Cook did not violate Plaintiffs’ Fourth Amendment rights,
and we therefore affirm as to them. Plaintiffs do not argue on
appeal that their Fourth Amendment rights were violated by
Sheriff Jeff Neves, Sergeant Brian Golmitz, or the County of
El Dorado. Accordingly, we affirm as to those Defendants as
well.2
I. Statement of Facts
This case arises out of a botched attempt by law enforce-
ment to locate a parolee in Plaintiffs’ residence. On Septem-
ber 19, 1999, the parolee, Randy Witmore, was arrested in
1
We decline to strike Plaintiffs’ opening brief, which, despite some
inaccuracies, adequately states their case.
2
Plaintiffs also sued several other parties, including Parole Agent Jon de
Roco, but they have either settled with those parties or have not pursued
their case against them on appeal. De Roco’s superiors, Rick Rimmer and
Sharon Jackson, were dismissed by stipulation in the district court.
7668 CUEVAS v. DE ROCO
Diamond Springs, California, for possession of explosive
devices, apparently after he was stopped for driving under the
influence. On the arrest form, Witmore’s residence is listed as
464 Capella Drive in Diamond Springs (“the Diamond
Springs address”).
However, from 1990 to May 2003, that address belonged
to the family of Lori Rodrigues, a friend of Witmore’s. While
it is not clear whether Witmore also may have lived at the
Diamond Springs address around the time of his 1999 arrest,
Rodrigues declared that Witmore did not live at the Diamond
Springs address between September 2001 and May 2003. In
December 2001, when Witmore’s parole officer telephoned
the Diamond Springs address to ask how Witmore was doing,
Rodrigues informed the parole officer that Witmore did not
live there and that there was an order in place requiring Wit-
more to stay away from her.
On March 5, 2002, Witmore was sent to prison after his
probation was revoked, but, on July 29, 2003, he again was
paroled. Witmore’s parole form lists Witmore as “homeless,”
as living with “no one,” and as having no telephone number.
The parole form also notes that Witmore is “[t]rying to get
into Ridgeview.” The form does list Rodrigues at the Dia-
mond Springs address, but only as an emergency contact.
Witmore’s parole was again revoked when, on August 1,
2003, Witmore was arrested for battery. The Department of
Corrections “charge sheet,” dated August 11, 2003, lists Wit-
more’s last known address as “2980 Coloma Rd., Placerville.”
Public telephone records reveal that this address belongs to a
boarding house called Ridgeview Manor. Witmore was
returned to prison on September 10, 2003.
On January 16, 2004, Witmore was once more released on
parole. In February 2004, Parole Agent Jon de Roco was
assigned to Witmore’s case. Witmore’s case file revealed that
Witmore had failed to report to the parole unit as he had been
CUEVAS v. DE ROCO 7669
instructed to do. Accordingly, de Roco and his supervisor
decided that de Roco would prepare the paperwork necessary
to seek a warrant for Witmore’s arrest as an absconded paro-
lee. De Roco and his supervisor further decided that, as part
of the process of preparing the paperwork, de Roco would go
to the emergency contact address listed on Witmore’s July
2003 parole form — the Diamond Springs address — and
attempt to obtain information about Witmore’s whereabouts.
If de Roco found Witmore there, he would take him into cus-
tody.
On February 25, 2004, de Roco contacted the El Dorado
County Sheriff’s Office and was placed in contact with Dep-
uty Sheriffs Starr, Horn and Cook. De Roco informed the dep-
uties that he intended to do a “knock and talk” at the Diamond
Springs address, which is “where you knock on the door and
talk to who opens it.”3 De Roco informed the deputies that
“Witmore was wanted and if located would be taken into cus-
tody.”
That evening, de Roco met with the deputies at a conve-
nience store near Cuevas’s residence. At the meeting, accord-
ing to Deputy Horn’s deposition, de Roco showed the
deputies a “flyer” with a photo of Witmore and an address on
it, which, the record suggests, was a “face sheet” from the
Parole and Community Services Division of the California
Department of Corrections. The “face sheet” lists Witmore’s
most recent address as “Self, Placerville” with a street address
“to be determined.” The “face sheet” further indicates that
Witmore had lived in Placerville since December 2002. In
addition to viewing the “flyer” or “face sheet,” the deputies
looked up Witmore in the ACIS local law enforcement data-
base, which indicated that during three contacts with the Sher-
3
De Roco testified at his deposition that the telephone number associ-
ated with the Diamond Springs address on Witmore’s parole form was dis-
connected, but he did not know when it had been disconnected and did not
remember whether he called the number on the day of the search.
7670 CUEVAS v. DE ROCO
iff’s Office in 2001 and 2002 Witmore had provided the
Diamond Springs address. The deputies made no further
inquiries into Witmore’s current residence.
After the meeting, the deputies and de Roco headed to the
Diamond Springs address. By that time, Rodrigues no longer
lived there. She had sold the house in April 2003 and moved
out in May 2003. Plaintiffs and their infant child had moved
in. Plaintiff Cuevas may bear a general resemblance to Wit-
more, although their appearances are far from identical.
When the deputies and de Roco arrived at the Diamond
Springs address they saw cars parked in the driveway and
lights on inside the house. They did not run a check on the
cars’ license plates but instead approached the house and got
into position. The deputies wore bullet-proof black vests with
a cloth star on the left breast and the word “Sheriff” on the
right breast as well as on the back. De Roco, too, wore a dark-
colored bullet-proof vest, but his vest bore no insignia. Over
his vest de Roco wore an open Hawaiian shirt with the tails
tucked behind his “duty belt,” on which were his holstered
gun, his handcuff pouch, and his badge. De Roco also wore
hiking boots and jeans.
Deputies Cook and Horn walked to the back of the house,
through an open gate in the fence, and stood in the yard. De
Roco and Deputy Starr walked up to the front door. It was
dark outside, there was no porch light on, and curtains cov-
ered the front window, so the area was only slightly illumi-
nated by ambient light from inside the home and from
surrounding residences.
De Roco knocked on the door several times. Plaintiffs, who
were working in their home office, heard the knocks, and
Cuevas walked to the door. Cuevas looked out the window
but, because of the darkness, could not see anything. Deputy
Starr, looking through an opening in the curtains on the front
window, saw someone by the door and said to de Roco, “He’s
CUEVAS v. DE ROCO 7671
right here.” Next, de Roco heard Cuevas say, “Who is it?,” to
which de Roco answered “State Parole.” De Roco then heard
Cuevas say, “Who?,” to which de Roco again responded,
“State Parole,” but in a louder voice.
At that point Cuevas opened the door approximately four
to six inches. De Roco, who had been standing by the left
door jamb, stepped to his right towards the door opening.
Deputy Starr stood behind and to the left of de Roco. De Roco
made eye contact with Cuevas and said either, “Is your name
Randy,” or, “Randy?” Cuevas looked down for a moment
with his hands at his sides, paused briefly, and then began to
swing the door closed. De Roco, who thought he had found
Witmore and wanted to arrest him, put his foot between the
door and the door jamb and began pushing against the door
with his shoulder and his hands to prevent it from closing.
Deputy Starr moved to de Roco’s right and also began push-
ing against the door.
Cuevas was “really scared” and believed that someone was
trying to break into his house and hurt his family. He called
out for Plaintiff Burlette to dial 911. Cuevas pushed back
against the door and, when de Roco and Deputy Starr gained
momentum, he reached around the door and punched de Roco
in the mouth, chipping his teeth. De Roco and Deputy Starr
continued to push against the door and gained entrance into
the residence. A short struggle ensued during which Deputy
Starr repeatedly announced, “Sheriff’s Department, put your
hands behind your back.” Eventually de Roco and Deputy
Starr were able to subdue and handcuff Cuevas.
When Deputy Starr went to look for Burlette, he found her
on the telephone with the 911 dispatcher and “in hysterics.”
The dispatcher and Deputy Starr calmed Burlette down and
explained that the officers were looking for Witmore. Burlette
informed Deputy Starr that Witmore did not live there. Dep-
uty Starr went “to look around for Mr. Witmore” in a protec-
tive sweep of the residence, but the only other person present
7672 CUEVAS v. DE ROCO
was Plaintiffs’ baby. The record indicates that at least one of
the Plaintiffs consented to Deputy Starr’s protective sweep.
In the meantime, Deputies Cook and Horn, who had heard
an altercation and a woman screaming inside, moved from the
backyard to the front of the house. Deputy Horn entered the
house and spoke briefly with Burlette to further explain the
situation. He then went back outside and waited on the porch.
Deputy Cook did not go inside the house but waited in the
doorway.
Next, Burlette retrieved Cuevas’s driver’s license and the
deputies confirmed that Cuevas was not Witmore. After con-
sulting with other officers, Deputy Starr arrested Cuevas for
knowingly performing a battery on a custodial officer, in vio-
lation of California Penal Code § 243.1. However, the district
attorney decided not to press charges because, he concluded,
Cuevas had not known that de Roco was an officer.
Plaintiffs sued for damages, alleging violations of their
rights under the Fourth, Fifth and Fourteenth Amendments, as
well as various violations of state law. Defendants moved for
summary judgment and, in the alternative, for qualified
immunity. The district court submitted the case on the briefs
and granted summary judgment in favor of Defendants on all
claims. Because the district court found no constitutional vio-
lation, it did not determine whether Defendants were pro-
tected by qualified immunity. Plaintiffs timely appealed.
II. Standard of Review
“A grant of summary judgment is reviewed de novo.”
Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.
2007). Summary judgment is appropriate only “if the plead-
ings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any mate-
rial fact and that the movant is entitled to judgment as a mat-
ter of law.” Fed. R. Civ. P. 56(c). “In determining whether
CUEVAS v. DE ROCO 7673
summary judgment is appropriate, we view the facts in the
light most favorable to the non-moving party and draw rea-
sonable inferences in favor of that party.” Scheuring v. Tray-
lor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007).
III. Discussion
A. Violation of the Fourth Amendment
The entry into Plaintiffs’ home commenced when de Roco
put his foot in the door opening and, together with Deputy
Starr, began pushing against the door in an attempt to open it.
This warrantless entry was unconstitutional.
[1] “It is a basic principle of Fourth Amendment law that
searches and seizures inside a home without a warrant are pre-
sumptively unreasonable.” Brigham City, Utah v. Stuart, 126
S. Ct. 1943, 1947 (2006) (quotation marks omitted). Indeed,
“physical entry into the home is the chief evil against which
the wording of the Fourth Amendment is directed.” Frunz v.
City of Tacoma, 468 F.3d 1141, 1142 (9th Cir. 2006) (quota-
tion marks omitted); see also Silverman v. United States, 365
U.S. 505, 511 (1961).
[2] The warrantless entry into Plaintiffs’ home cannot be
justified as a search for a parolee in what might have been the
parolee’s residence. Although the residence of a parolee may
be searched even if the police suspect no wrongdoing, see
Samson v. California, 547 U.S. 843, 856 (2006), “before con-
ducting a warrantless search . . . law enforcement officers
must have probable cause to believe that the parolee is a resi-
dent of the house to be searched,” Motley v. Parks, 432 F.3d
1072, 1080 (9th Cir. 2005) (en banc). And, absent such proba-
ble cause, “[n]othing in the law justifies the entry into and
search of a third person’s house to search for the parolee.” Id.
at 1079. We consider, therefore, what information the depu-
ties had about Witmore’s residence at the moment they began
the entry.
7674 CUEVAS v. DE ROCO
The record reveals that de Roco provided the deputies with
the Diamond Springs address and informed them that it was
an “emergency contact address.” There is no indication that
de Roco represented to the deputies that Witmore actually
lived at the Diamond Springs address. When asked in his
deposition whether de Roco had made such a representation,
Deputy Horn responded only that de Roco “had reason to
believe that he thought Witmore could possibly be there.”
Moreover, the fact that de Roco told the deputies that he
wanted to do a “knock and talk” indicates that he was basi-
cally trying to learn of Witmore’s whereabouts and, at most,
was hoping that he might be fortunate enough to find Wit-
more there.
Indeed, despite the fact that the ACIS database indicated
that Witmore had provided the Diamond Springs address in
2001 and 2002, the record indicates that the deputies under-
stood that Witmore was not currently living at the Diamond
Springs address. The record supports the inference that de
Roco showed the deputies a “face sheet” stating that Witmore
lived in Placerville. In their depositions, Deputy Horn testified
that he understood the Diamond Springs address to be an
“emergency contact address,” and Deputy Starr testified that
he merely “assum[ed]” that the Diamond Springs address was
Witmore’s residence “at some time.”
Even if the “flyer” that de Roco showed the deputies was
not the “face sheet,” the deputies made no effort to determine
whether Witmore had provided de Roco or any other authori-
ties an address other than the Diamond Springs address after
2002. If they had made such an effort, the deputies would
have learned from the August 2003 parole form that Wit-
more’s last known address was the Ridgeview Manor in
Placerville. They might also have learned that, in December
2001, Lori Rodrigues informed Witmore’s parole officer that
Witmore did not live at the Diamond Springs address. Fur-
ther, the deputies conducted no surveillance at the Diamond
Springs address to determine whether Witmore lived there,
CUEVAS v. DE ROCO 7675
they did not even determine that Rodrigues still lived there
(by checking property records, for example), and they did not
run a check on the license plates of the cars parked outside the
residence on the night of the search.
Viewing the record in the light most favorable to Plaintiffs,
we conclude that, based on the limited information in their
possession, the deputies lacked probable cause to believe that
Witmore resided at the Diamond Springs address.
[3] The fact that Cuevas tried to close the door when he
was asked whether his name was “Randy” does not change
our conclusion. Cuevas explained that he thought de Roco —
whose Hawaiian shirt, jeans and hiking boots masked that he
was a government officer — was a “bad man” who might
harm his family. This explanation is a plausible reason for
closing the door when a stranger came to his house at night.
Although Deputy Starr’s clothing more clearly identified him
as a government officer, the evidence indicates that Deputy
Starr was not visible to Cuevas because he was standing
behind and to the side of de Roco. That Cuevas subsequently
punched de Roco does not affect our analysis, because the
punch occurred after de Roco and Deputy Starr had already
begun to enter the house.
[4] Nor does the fact that de Roco thought Cuevas resem-
bled Witmore change our conclusion. Even if the deputies
were permitted to rely on de Roco’s belief that Cuevas resem-
bled Witmore, see United States v. Jensen, 425 F.3d 698, 705
(9th Cir. 2005) (observing that when there has been communi-
cation among agents, probable cause can rest upon the investi-
gating agents’ collective knowledge), the deputies would not
have had probable cause to believe that Witmore resided at
the Diamond Springs address, see Watts v. County of Sacra-
mento, 256 F.3d 886, 890 (9th Cir. 2001) (“Watts II”) (“[T]he
mere fact that [plaintiff] answered the door of his girlfriend’s
home in his boxer shorts did not establish a reasonable belief
that he lived there.”).
7676 CUEVAS v. DE ROCO
[5] In sum, the information suggesting that Witmore might
have resided at the Diamond Springs address was several
years old, uncorroborated by available sources, and contra-
dicted by two more recent pieces of information, both of
which indicated that Witmore lived in Placerville. Neither de
Roco nor the deputies had contact with Witmore — or anyone
who knew Witmore and could reliably provide information
concerning his residence — prior to the search. Moreover, de
Roco knew, and so informed the deputies, that the Diamond
Springs address was merely an emergency contact address at
which he sought to perform a “knock and talk.”
The contrast with the kind of information that does meet
the applicable probable cause standard is stark. For example,
in Motley the police searched the apartment of the parolee’s
girlfriend, where the parolee also lived at some point, approx-
imately three months after she had moved in. 432 F.3d at
1075-76. While the parolee was, as it turned out, in custody
at the time of the search, the police had gathered information
about the parolee within a month of the search that indicated
the apartment as the parolee’s last known address. Id. at 1076,
1080 & n.6. In addition, a police officer who participated in
the search had had contact with the parolee on previous occa-
sions — including once at the apartment — during which the
parolee and his grandmother had confirmed that the parolee
lived at the apartment. Id. at 1080-81. Although the girlfriend
— “a less than disinterested source” — told the officers who
came to search the apartment that the parolee did not live
there and that he was in custody, we concluded that the offi-
cers nonetheless had probable cause to believe that the paro-
lee resided at the apartment. Id. at 1076, 1082.
The information available to de Roco and the deputies sug-
gesting that Witmore might have lived at the Diamond
Springs address was significantly less reliable than the infor-
mation available to the officers in Motley. Thus, the informa-
tion did not meet our “relatively stringent standard [for]
determining what constitutes probable cause that a residence
CUEVAS v. DE ROCO 7677
belongs to a person on supervised release.” United States v.
Howard, 447 F.3d 1257, 1262 (9th Cir. 2006).
More generally, in Howard we surveyed four cases in
which a search was proper and identified several patterns:4
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 paro-
lee had reported a different address, but officers had
good reason to believe that he was not actually resid-
ing at the reported address. . . .
Second, in each of these four cases, the officers
had directly observed something that gave them
good reason to suspect that the parolee was using his
unreported residence as his home base[.] . . .
Third, in each of [these cases] the parolee had a
key to the residence in question. . . .
Lastly, in two of these cases, either the parolee’s
co-resident or the parolee himself identified the resi-
dence in question as that of the parolee.
447 F.3d at 1265-66.
The facts of this case fit into none of the patterns identified
in Howard. First, the evidence indicating that Witmore might
have lived at the Diamond Springs address stemmed from
2002 or earlier, Department of Corrections records from 2003
and 2004 indicated that Witmore’s last known address was in
Placerville, and the deputies did not have good reason to
4
Those four cases are United States v. Conway, 122 F.3d 841 (9th Cir.
1997), United States v. Watts, 67 F.3d 790 (9th Cir. 1995), United States
v. Harper, 928 F.2d 894 (9th Cir. 1991), and United States v. Dally, 606
F.2d 861 (9th Cir. 1979).
7678 CUEVAS v. DE ROCO
believe that Witmore was nonetheless residing in Diamond
Springs. Second, the deputies had made no observations that
gave them good reason to believe that Witmore lived at the
Diamond Springs address. Third, there is no evidence that
Witmore had a key to Plaintiffs’ residence. Fourth, there is no
evidence that after 2002 Witmore ever indicated that he lived
at the Diamond Springs address, nor that Rodrigues, his listed
emergency contact, lived there after 2003, nor that Plaintiffs
ever indicated that Witmore lived there.
[6] Thus, viewing the facts in the light most favorable to
Plaintiffs, we conclude that the officers lacked probable cause
to believe that Witmore lived at the Diamond Springs address
and that, accordingly, Deputy Starr violated Plaintiffs’ Fourth
Amendment rights by assisting de Roco in pushing against the
door and forcibly entering the residence.5
[7] However, Deputies Horn and Cook did not violate
Plaintifffs’ Fourth Amendment rights by entering the residence.6
Deputy Horn briefly entered the residence, and Deputy Cook
went to stand in the doorway, only after they heard an alterca-
tion and a woman screaming inside the residence. At that
point there was an objectively reasonable basis for concluding
that there was an immediate need to protect persons inside the
5
Because the warantless entry was unconstitutional regardless of Wit-
more’s parole status, we need not consider Cuevas and Burlette’s argu-
ments concerning California parole law and policy.
6
Plaintiffs have not alleged in their complaint that Deputies Horn and
Cook violated their Fourth Amendment rights by entering their fenced
backyard before leaving the backyard and entering the residence through
the front door. Nor do they “coherently develop[ ]” such an argument on
appeal. United States v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997); see
also Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007); Fed. R.
App. P. 28(a)(9). Accordingly, we do not consider whether Deputies Horn
and Cook’s warrantless entry into the backyard constituted an unlawful
intrusion into the residence’s curtilage. See United States v. Dunn, 480
U.S. 294, 300-01 (1987); United States v. Romero-Bustamente, 337 F.3d
1104, 1107 (9th Cir. 2003).
CUEVAS v. DE ROCO 7679
home from serious harm. See United States v. Snipe, 515 F.3d
947, 951-52 (9th Cir. 2008).
[8] Deputy Starr’s protective sweep “to look around for Mr.
Witmore” also did not violate Plaintiffs’ Fourth Amendment
rights. It is clear that at least one of the Plaintiffs consented
to such a sweep and neither objected. See United States v.
Murphy, 516 F.3d 1117, 1122 (9th Cir. 2008) (“It is well
established that a person with common authority over prop-
erty can consent to a search of that property without the per-
mission of the other persons with whom he shares that
authority.”) (citations omitted). However, the record indicates
that, as part of the sweep, Deputy Starr opened at least one
drawer. Doing so exceeded both the consent given and the
limits of a lawful protective sweep incident to an in-house
arrest. See Maryland v. Buie, 494 U.S. 325, 327 (1990)
(explaining that a permissible protective sweep “is narrowly
confined to a cursory visual inspection of those places in
which a person might be hiding”). Accordingly, Deputy Starr
also violated Plaintiffs’ Fourth Amendment rights in this
regard, although any damages caused are likely minimal.
B. Qualified Immunity
Deputy Starr nonetheless contends that he is protected by
qualified immunity. Having concluded that Deputy Starr vio-
lated Plaintiffs’ Fourth Amendment rights, we must determine
whether, in the specific context of this case, those constitu-
tional rights were clearly established at the time of the viola-
tion. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Motley,
432 F.3d at 1077. We conclude that they were.
[9] First, it was well-established at the time of the entry of
Plaintiffs’ home that, absent exigent circumstances, police
may not enter a person’s residence for purposes of search or
seizure without a warrant. See, e.g., Payton v. New York, 445
U.S. 573, 586 (1980) (“It is a basic principle of Fourth
Amendment law that searches and seizures inside a home
7680 CUEVAS v. DE ROCO
without a warrant are presumptively unreasonable.”) (internal
quotation marks omitted).
[10] Second, it was well-established at the time of the entry
that police could search a residence for a parolee without a
warrant only if their belief that a parolee lived there was
based on the equivalent of probable cause.
In so holding, we recognize that the terms used to describe
this standard were somewhat unclear at the time of the entry
into Plaintiffs’ home. In United States v. Dally, 606 F.2d 861,
863 (9th Cir. 1979), we held that officers must have a “rea-
sonable basis” to think that a parolee lived at an address they
wished to search. We later stated that “probable cause” to
think so was required, see United States v. Harper, 928 F.2d
894, 896 (9th Cir. 1991); United States v. Watts, 67 F.3d 790,
795-96 (9th Cir. 1995) (“Watts I”), overruled on other
grounds, 519 U.S. 148 (1997), so “this question was a matter
of some confusion,” Howard, 447 F.3d at 1262 n.5, before we
held that probable cause was the proper standard in Motley,
432 F.3d at 1080.
[11] This inconsistency does not, however, settle the matter
in Deputy Starr’s favor. However the standard was described,
his conduct fell well below it. The facts of Dally make clear
how stringent the “reasonable basis” standard was. The offi-
cers in that case had a reasonable basis “for the belief that [the
parolee] lived” at a residence when they saw him enter the
residence a week before the police entry; “photographed him
taking out the garbage, bringing in his laundry and talking
with neighbors”; later saw that his car had been parked there
overnight, and, on the day of the entry, observed him “re-
turn[ ] with dry cleaning, change[ ] his clothes and [leave] the
apartment carrying laundry.” 606 F.2d at 862. And the police
did not commence entry until the parolee “returned again with
more dry cleaning” and “used a key to open the door.” Id.Recounting the facts of Dally in Howard, we concluded that
the “police had strong evidence” supporting their search, and
CUEVAS v. DE ROCO 7681
analyzed Dally as part of a line of “probable cause”-based
cases, see Howard, 447 F.3d at 1262-63 & 1262 n.6.
In subsequent cases, as noted, supra note 4, we employed
the probable cause standard “stringent[ly].” Howard, 447 F.3d
at 1262; see also id. at 1263-64 (discussing later cases). So,
despite some confusion as to the formulation of the standard,
we have long held that there must be strong evidence to think
that a parolee resides at an address before the address can be
searched without a warrant.
[12] Whatever doubt might have remained on that point
was disposed of by United States v. Gorman, 314 F.3d 1105(9th Cir. 2002). Gorman is not a parole search case, but con-
cerned the “related context[ ],” Motley, 432 F.3d at 1079, of
whether police had “reason to believe” that a criminal for
whom they had an arrest warrant was present in a third party’s
residence, justifying entry into that residence without a search
warrant or consent. Gorman, 314 F.3d at 1110. We concluded
that our case law’s requirement that the police have a “reason-
able belief” that a person lives at a particular residence
“should be read to entail the same protection and reasonable-
ness inherent in probable cause.” Id. at 1114-15.
Gorman reinforced the principle that our prior parole
search cases strongly suggested: The “reasonable basis” stan-
dard does not depart in any important regard from the “proba-
ble cause” standard, and the police therefore cannot conduct
a warrantless search of a residence in search of a parolee
unless their belief that the parolee resides there is based on the
equivalent of probable cause. See Gorman, 314 F.3d at 1110-
11, 1114-15. Motley, of course, cleared up any remaining
ambiguity by acknowledging the holding in Gorman and stat-
ing, in the parole search context, that “[w]e see no reason to
depart from [its] conclusion here.” 432 F.3d at 1080.
[13] The information Deputy Starr acted upon fell well
below the “reasonable basis” standard as applied in the cases
7682 CUEVAS v. DE ROCO
decided before the events underlying this case. It would there-
fore be clear to a reasonable officer in Deputy Starr’s posi-
tion, considering his actions in light of the then-existing case
law, that his conduct was unlawful. See Saucier, 533 U.S. at
202.
Finally, the limits of a lawful protective sweep were also
clearly established at the time of the search. See Buie, 494
U.S. at 327.
[14] Accordingly, Deputy Starr is not protected by quali-
fied immunity.
IV. Conclusion
[15] The record, viewed in the light most favorable to
Plaintiffs, establishes that Deputy Starr violated Plaintiffs’
Fourth Amendment rights by participating in the forced entry
of the residence and by opening at least one drawer during the
protective sweep. Moreover, Deputy Starr is not protected by
qualified immunity. Accordingly, we reverse the grant of
summary judgment to Deputy Starr and remand for trial con-
cerning the constitutional violations.7 However, we affirm as
to the other Defendants.
The parties shall bear their own costs.
AFFIRMED in part, REVERSED in part, and
REMANDED.
7
We note that Cuevas’s arrest was not unlawful because it was sup-
ported by probable cause. Accordingly, neither Deputy Starr nor any of
the other Defendants is liable for damages resulting from the arrest itself.