United States v. Howard Dixon ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10112
Plaintiff-Appellee,
D.C. No.
v. 3:18-cr-00319-CRB-1
HOWARD DIXON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted March 2, 2020
San Francisco, California
Filed December 31, 2020
Before: Eugene E. Siler, * Kim McLane Wardlaw, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Wardlaw
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. DIXON
SUMMARY **
Criminal Law
The panel vacated the district court’s denial of a motion
to suppress evidence resulting from a vehicle search
conducted pursuant to a supervised release condition;
conditionally vacated a conviction and sentence for
possession of controlled substances; and remanded for an
evidentiary hearing and (if the conviction is reinstated) for
resentencing.
Applying the Supreme Court’s analysis in United States
v. Jones, 565 U.S. 400 (2012, which reminded that the
Fourth Amendment protects not only reasonable
expectations of privacy but also against physical intrusions
by law enforcement onto property, the panel held that a
Fourth Amendment search occurs when an officer physically
inserts a key into the lock of a vehicle for the purpose of
obtaining information, as occurred in this case when an
officer inserted the key specifically to learn whether the
defendant exercised control over the vehicle. The panel
wrote that this court’s contrary decision in United States v.
$109,179 in U.S. Currency, 228 F.3d 1080 (9th Cir. 2000),
is clearly irreconcilable with the Supreme Court’s property-
based Fourth Amendment jurisprudence in Jones and
Florida v. Jardines, 569 U.S. 1 (2013).
Having concluded that the officer conducted a Fourth
Amendment search, the panel turned to the reasonableness
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. DIXON 3
of the search. The panel held that before conducting a
warrantless search of a vehicle pursuant to a supervised
release condition, law enforcement must have probable
cause to believe that the supervisee owns or controls the
vehicle. The panel observed that on the record before it, it
is unclear whether the officer had probable cause to believe
that the particular vehicle into which he inserted the key was
owned or controlled by the defendant. The panel therefore
remanded the case for the district court to conduct an
evidentiary hearing and to rule on the defendant’s
suppression motion in light of the Jones and Jardines
principles.
The panel held that the district court, at sentencing, erred
in finding that the defendant, who was convicted of a lesser
included offense of simple possession of controlled
substances, was categorically ineligible for an acceptance-
of-responsibility reduction on the ground that the defendant
did not accept responsibility for the greater offense of
possession with intent to distribute. The panel explained that
U.S.S.G. § 3E1.1(a) does not require that the defendant
admit to all the charged offenses. The panel therefore
instructed that in the event the district court upholds the
search on remand and reinstates the defendant’s conviction,
the district court should make a factual finding regarding
acceptance of responsibility in the first instance.
COUNSEL
Jonathan Abel (argued), Juliana C. DeVries, and Elizabeth
M. Falk, Assistant Federal Public Defenders; Steven G.
Kalar, Federal Public Defender; Office of the Federal Public
Defender, San Francisco, California; for Defendant-
Appellant.
4 UNITED STATES V. DIXON
Sloan Heffron (argued), Assistant United States Attorney;
Merry Jean Chan, Chief, Appellate Section, Criminal
Division; David L. Anderson, United States Attorney;
United States Attorney’s Office, San Francisco, California;
for Plaintiff-Appellee.
OPINION
WARDLAW, Circuit Judge:
Howard Dixon appeals the district court’s partial denial
of his motion to suppress evidence resulting from a search of
his vehicle. We must decide whether the insertion of a car
key into a lock on the vehicle’s door for the sole purpose of
aiding the police in ascertaining its ownership or control is a
“search” within the meaning of the Fourth Amendment. We
have previously held that it was not, applying the
“reasonable expectation of privacy” test from Katz v. United
States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).
See United States v. $109,179 in U.S. Currency, 228 F.3d
1080, 1087–88 (9th Cir. 2000). In light of recent Supreme
Court authority tying the Fourth Amendment’s reach to the
law of trespass, however, we must conclude that because
“[t]he Government physically occupied private property for
the purpose of obtaining information,” United States v.
Jones, 565 U.S. 400, 404 (2012), it conducted a search
within the meaning of the Fourth Amendment.
I.
A.
In January 2018, San Francisco Police Department
(“SFPD”) Officer Eduard Ochoa began surveilling Dixon, a
felon serving a term of supervised release and subject to a
UNITED STATES V. DIXON 5
warrantless, suspicionless search condition. Dixon was a
suspect in a shooting that occurred earlier that month in the
Bayview District of San Francisco. Based on his
observations, Officer Ochoa came to believe that Dixon
lived at the Oakdale Apartments in Bayview. Officer Ochoa
also noticed Dixon driving in the surrounding neighborhood
during the daytime—twice in a black BMW and twice in a
blue Honda minivan. He saw Dixon park the black BMW in
the Oakdale Apartments’ parking lot five times, and park the
blue Honda minivan in that lot two times.
On March 9, 2018, Officer Ochoa learned that Dixon
was under federal supervision and subject to the
suspicionless search condition. Although Dixon had
reported the Oakdale Apartments as his residence to his
probation officer, Officer Ochoa did not know this and did
not ask the probation officer what address he had on file.
Rather, Officer Ochoa searched other databases for Dixon’s
residence, which resulted in several different addresses but
none that matched the Oakdale Apartments.
Officer Ochoa nonetheless returned to the apartment
building to surveil the area with other SFPD officers. There,
they saw Dixon exit the building, re-enter it, and then exit
again holding two garbage bags. Officer Ochoa attests that
he observed Dixon walk towards a blue Honda minivan in
the parking lot, which Officer Ochoa recognized as the one
he had previously seen Dixon driving.
Officer Ochoa instructed officers to detain Dixon,
prompting Dixon to drop both garbage bags and a set of keys
on the ground. Officer Ochoa used those keys to enter the
apartment, where he discovered various illegal drugs and
drug paraphernalia in a room identified as belonging to
Dixon. Following the apartment search, officers transported
Dixon to Bayview Station.
6 UNITED STATES V. DIXON
Shortly before Dixon was transported, Officer Ochoa
began searching the blue Honda minivan, using one of the
keys that Dixon had dropped to unlock the vehicle. Inside
the trunk area, he discovered a black backpack containing a
large bag of marijuana. At Bayview Station, a further search
of Dixon recovered twenty-one baggies containing cocaine,
heroin, and methamphetamine.
B.
Dixon was indicted for possession with intent to
distribute heroin, cocaine, and methamphetamine. Dixon
moved to suppress the evidence obtained from the apartment
and vehicle searches as unconstitutional, and from the later
stationhouse search as tainted by these previous searches. In
support, Dixon submitted a declaration explaining his
relationship to the apartment and the van. In response, the
government submitted Officer Ochoa’s declaration, which
detailed his investigation of Dixon. In turn, Dixon submitted
an additional declaration that disputed several of Officer
Ochoa’s statements, including that he had never sat in or
owned a black BMW during the relevant time period and that
he did not approach the blue Honda minivan while carrying
the trash bags, but had continued walking past it before being
stopped. Dixon also attested that there were two “sky blue”
minivans parked side-by-side in front of the apartment
complex on that day, a fact confirmed by an officer’s body
camera footage. Dixon claimed that, initially, the officers
attempted to enter the other minivan before its owner “came
running out” of the complex to stop them. Dixon also
alleged that while detained, an officer repeatedly requested
Dixon provide the keys for a black Audi that was also parked
in the lot.
The district court ruled on the suppression motion
without conducting an evidentiary hearing. The district
UNITED STATES V. DIXON 7
court granted the motion as to the search of the apartment,
concluding that the officers did not have probable cause to
believe Dixon was a resident of the apartment because
Officer Ochoa’s observations amounted to information
suggesting only Dixon’s presence, but not his residence,
there. As a result, the district court suppressed the evidence
from the apartment search.
The district court upheld the search of the minivan,
however, reasoning that under United States v. $109,179 in
U.S. Currency, 228 F.3d 1080 (9th Cir. 2000), the insertion
of the key into the minivan’s lock was not itself a search, and
that possession of a key that fit the minivan’s lock amounted
to probable cause to believe that Dixon exercised control of
the minivan. Because the minivan search was constitutional,
the court held that this intervening lawful search, which
produced a large bag of marijuana, attenuated any taint from
the apartment search, and therefore declined to suppress the
evidence found when police searched Dixon at the jail.
At trial, the district court excluded the marijuana found
in the minivan because it was improperly mixed with the
suppressed marijuana found in the apartment, leaving the
drugs recovered at the jail as the only admissible evidence
against Dixon. The jury hung on the charge of possession
with intent to distribute controlled substances, but convicted
Dixon of the lesser-included offense of simple possession.
At sentencing, the district court denied Dixon a two-step
guideline reduction for acceptance of responsibility, rejected
an enhancement for obstruction of justice, and sentenced
8 UNITED STATES V. DIXON
Dixon to 21-months’ imprisonment. This timely appeal
followed. 1
II.
We have jurisdiction under 28 U.S.C. § 1291. We
review a ruling on a motion to suppress de novo, United
States v. Korte, 918 F.3d 750, 753 (9th Cir. 2019), and
findings of fact associated with that motion for clear error,
United States v. Grandberry, 730 F.3d 968, 971 (9th Cir.
2013). “[W]e ‘review de novo whether the district court
misapprehended the law with respect to the acceptance of
responsibility reduction.’” United States v. Green, 940 F.3d
1038, 1041 (9th Cir. 2019) (quoting United States v. Cortes,
299 F.3d 1030, 1037 (9th Cir. 2002)).
III.
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. But individuals “subject to a warrantless,
suspicionless search condition have ‘severely diminished
expectations of privacy by virtue of their status alone.’”
United States v. Cervantes, 859 F.3d 1175, 1182 (9th Cir.
2017) (quoting Samson v. California, 547 U.S. 843, 852
(2006)). Here, a condition of Dixon’s supervised release
mandated that he “submit to a search of his person,
residence, office, vehicle, or any property under his control
. . . at any time with or without suspicion.”
1
The government initially appealed the partial suppression
order under 18 U.S.C. § 3731 but dismissed that appeal before briefing.
See Order, United States v. Dixon, No. 18-10438, ECF No. 3 (9th Cir.
Nov. 19, 2018) (granting voluntary dismissal of appeal).
UNITED STATES V. DIXON 9
But this authority is not limitless, and we have explained
that to conduct a search of property pursuant to this
condition, the individual subject to it must “exhibit[] a
sufficiently strong connection to [the property in question]
to demonstrate ‘control’ over it.” Korte, 918 F.3d at 754
(quoting Grandberry, 730 F.3d at 980). In other words,
before the police could search Dixon’s blue Honda minivan
without a warrant or probable cause, they had to have a
sufficient basis to believe he owned or controlled that
vehicle. In this case, the police crossed that knowledge
threshold only when they inserted the key that Dixon had
dropped into the car lock, thereby confirming that he
exercised control over the minivan.
Therefore, we must determine whether inserting that key
into the minivan’s lock was itself permissible under the
Fourth Amendment. This matters because if inserting the
key into the car lock violated Dixon’s Fourth Amendment
rights, the officers’ resulting knowledge and authority to
search that vehicle would be tainted by a Fourth Amendment
violation. Given that the district court had already ruled that
the officers’ search of Dixon’s apartment violated the Fourth
Amendment, the officers would have lacked justification for
Dixon’s arrest and subsequent stationhouse search. Thus,
the trial court would have had to suppress the drugs found
on Dixon’s person, and the government would have been left
with no admissible drug evidence at Dixon’s trial.
To determine whether a Fourth Amendment violation
occurred, we ask two primary questions: first, whether the
government conduct amounted to a search within the
meaning of the Fourth Amendment; and second, whether
that search was reasonable.
10 UNITED STATES V. DIXON
A.
The district court relied on our decision in Currency, to
hold that the insertion of the key into the minivan’s lock was
not a search within the meaning of the Fourth Amendment.
It thus held that the officers could properly rely on their
knowledge that the key fit the lock for probable cause that
Dixon had control of the minivan, therefore making it
subject to Dixon’s warrantless search condition. But our
decision in Currency rested solely on an owner’s reasonable
expectation of privacy in his vehicle and predated the
Supreme Court’s reminder that the Fourth Amendment
protects not only reasonable expectations of privacy, but also
against physical intrusions by law enforcement onto
property. See United States v. Jones, 565 U.S. 400, 404–05
(2012). Applying Jones’s property-based analysis, we must
conclude that a Fourth Amendment search occurs when an
officer physically inserts a key into the lock of a vehicle for
the purpose of obtaining information, as occurred here.
Thus, our decision in Currency is “clearly irreconcilable”
with the Supreme Court’s property-based Fourth
Amendment jurisprudence, and it cannot stand to the extent
that it concluded that no search occurred on these facts. See
Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003)
(“[W]here the reasoning or theory of our prior circuit
authority is clearly irreconcilable with the reasoning or
theory of intervening higher authority, a three-judge panel
should consider itself bound by the later and controlling
authority, and should reject the prior circuit opinion as
having been effectively overruled.”).
In Currency, a criminal forfeiture proceeding, a police
officer obtained a set of car keys as the result of a lawful
Terry stop of the claimant. 228 F.3d at 1083–87. To identify
which car belonged to the claimant, the officer inserted the
UNITED STATES V. DIXON 11
keys into the locks of various cars in the parking lot until he
discovered a match. Id. at 1083. Armed with that
knowledge, the officer returned to the claimant and obtained
his consent to search the car. Id. Applying the “reasonable
expectation of privacy” test from Katz, we reasoned that the
claimant “had a minimal expectation of privacy in the lock
of his car door,” and that the officer’s conduct was
minimally intrusive, consisting solely of the insertion of a
key for the limited purpose of learning whether the car was
under the claimant’s control. Id. at 1087–88, 1087 n.44. We
thus concluded that “inserting the key into the car door lock
for the purpose of identifying [the claimant]” was not a
Fourth Amendment search. Id. at 1088.
Our holding in Currency, however, is clearly
irreconcilable with the Supreme Court’s more recent
holdings in United States v. Jones, 565 U.S. 400 (2012), and
Florida v. Jardines, 569 U.S. 1 (2013). See Miller, 335 F.3d
at 893. In the last decade, these cases have confirmed that a
search occurs when the government “physically occup[ies]
private property for the purpose of obtaining information.”
Jones, 565 U.S. at 404. Thus, “Katz did not narrow the
Fourth Amendment’s scope.” Id. at 408. Rather, “the Katz
reasonable-expectation-of-privacy test has been added to,
not substituted for, the common-law trespassory test,” and a
search may therefore be prohibited under either test. Id.
at 409 (emphasis omitted). This common-law protection
extends to vehicles notwithstanding lesser expectations of
privacy, because “[i]t is beyond dispute that a vehicle is an
‘effect’ as that term is used in the [Fourth] Amendment.” Id.
at 404; see also id. at 411.
Applying these principles, the Supreme Court in Jones
held that officers could not physically intrude on a Jeep to
plant a GPS tracking device. Id. at 406. Even if the
12 UNITED STATES V. DIXON
defendant had no reasonable expectation of privacy in the
exterior of his car or its location, the physical intrusion of the
vehicle was itself a search under the Fourth Amendment. Id.at 406–07. The Court expressly rejected the notion that the
exterior of a car is entitled to less protection under this
theory: “[b]y attaching the device to the Jeep, officers
encroached on a protected area.” Id. at 410. The Court
reaffirmed the trespass-based theory underpinning the
Fourth Amendment in Jardines, in which it held that officers
could not invade the curtilage around a home to gather
information without a warrant because they had no explicit
or implicit license to physically intrude into that
“constitutionally protected area.” 569 U.S. at 7, 11.
Jardines reiterated that the “Katz reasonable-expectations
test . . . is unnecessary to consider when the government
gains evidence by physically intruding on constitutionally
protected areas.” Id. at 11 (emphasis added).
The same principles apply here. 2 When Officer Ochoa
inserted the key into the minivan’s lock, an “effect,” he
physically intruded onto a constitutionally protected area.
This physical intrusion was done for the express purpose of
obtaining information, specifically to learn whether Dixon
exercised control over the minivan. Thus, the insertion of
2
The government argues that Jones and Jardines are inapplicable
because these cases did not concern individuals subject to suspicionless
search conditions. This observation is irrelevant to the first step of the
Fourth Amendment analysis. We rely on these cases solely to determine
whether a search occurred in the first place. Parole and supervised
release status, on the other hand, is relevant only to the next step of the
analysis—whether the search was reasonable. See, e.g., Cervantes,
859 F.3d at 1183 (“A search of a parolee that complies with the terms of
a valid search condition will usually be deemed reasonable under the
Fourth Amendment.”).
UNITED STATES V. DIXON 13
the key into the minivan’s lock constituted a search within
the meaning of the Fourth Amendment.
Our conclusion is in accord with that of our sister
circuits, which, post-Jones and Jardines, have similarly
concluded that such physical intrusion constitutes a search.
See, e.g., United States v. Bain, 874 F.3d 1, 15 (1st Cir. 2017)
(holding that testing a key in an apartment door lock to see
if it fit constituted a search under Jardines); cf. Taylor v. City
of Saginaw, 922 F.3d 328, 333 (6th Cir. 2019) (finding city’s
chalking of tires to determine how long a vehicle had been
parked in the same location constituted a search under
Jones); United States v. Richmond, 915 F.3d 352, 357 (5th
Cir. 2019) (holding that officer pushing his finger against the
defendant’s tire to learn what was inside constituted a search
under Jones); see also Schmidt v. Stassi, 250 F. Supp. 3d 99,
101 (E.D. La. 2017) (holding that an officer’s collection of
DNA from the defendant’s car door while it was parked was
a search under Jones).
B.
Having concluded that Officer Ochoa conducted a
Fourth Amendment search, we turn to the reasonableness of
the search. We have recognized that “[a] search of a parolee
that complies with the terms of a valid search condition will
usually be deemed reasonable under the Fourth
Amendment.” Cervantes, 859 F.3d at 1183 (citing Samson,
547 U.S. at 852–54). 3 It is undisputed that by the terms of
3
We see no reason to differentiate between a parolee and an
individual on federal supervised release in this context—both are subject
to “warrantless, suspicionless search condition[s] [and] have ‘severely
diminished expectations of privacy by virtue of their status alone.’”
Cervantes, 859 F.3d at 1182 (quoting Samson, 547 U.S. at 852); see also
See United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007) (“There is
14 UNITED STATES V. DIXON
his federal supervised release, Dixon was subject to a
warrantless, suspicionless search of his “vehicle, or any
other property under his control.” But before this condition
authorizes a warrantless search, officers must have a
sufficient “degree of knowledge” that the search condition
applies to the place or object to be searched. Grandberry,
730 F.3d at 974; see also Motley v. Parks, 432 F.3d 1072,
1079 (9th Cir. 2005) (en banc) (“[A] condition of parole that
permits warrantless searches provides officers with the
limited authority to enter and search a house where the
parolee resides, even if others also reside there. But they
have to be reasonably sure that they are at the right house.”),
overruled in part on other grounds by United States v. King,
687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam). In
other words, this “degree of knowledge” is a “precondition
for a search pursuant to a parole condition.” Grandberry,
730 F.3d at 975.
The level of suspicion required to determine whether a
vehicle is subject to a warrantless search condition appears
to be an issue of first impression in this circuit, although we
have squarely addressed the issue in two related contexts.
First, to search a residence “pursuant to a parolee’s parole
condition, law enforcement officers must have probable
cause to believe that the parolee is a resident of the house to
be searched.” Id. at 973 (quoting United States v. Howard,
447 F.3d 1257, 1262 (9th Cir. 2006)); see also Motley,
432 F.3d at 1080. And second, we have held that “once
no sound reason for distinguishing parole from supervised release with
respect to [a supervised release search] condition.”); Doe v. Harris,
772 F.3d 563, 571 (9th Cir. 2014) (“Parole (or supervised release, in the
federal system) is one step removed from imprisonment.”). We have
also previously declined to differentiate between parolees and
probationers under similar circumstances. See United States v. Bolivar,
670 F.3d 1091, 1094 n.2 (9th Cir. 2012).
UNITED STATES V. DIXON 15
validly inside [a residence], [officers] need only ‘reasonable
suspicion’ that an item is owned, possessed, or controlled by
the parolee or probationer.” Bolivar, 670 F.3d at 1095
(citing United States v. Davis, 932 F.2d 752, 757–58 (9th
Cir. 1991)). We have thus yet to address the degree of
knowledge that police must have to establish that an object
outside of a parolee’s residence is subject to the parolee’s
warrantless search condition. 4
We hold that before conducting a warrantless search of a
vehicle pursuant to a supervised release condition, law
enforcement must have probable cause to believe that the
supervisee owns or controls the vehicle to be searched. Our
en banc decision in Motley is instructive. There, we first
adopted the rule that before conducting a warrantless search
pursuant to a parolee’s parole condition, “officers must have
probable cause to believe that the parolee is a resident of the
house to be searched.” Motley, 432 F.3d at 1080. We
emphasized that this requirement “protects the interest of
third parties”—a consideration that carried through our
related precedents. Id. For example, we explained that
4
Our recent decision in Korte is not instructive on this point because
neither ownership nor control was at issue. See Korte, 918 F.3d at 754.
There, the parolee “admit[ted] that he rented the car and referred to [the
vehicle] as ‘my car.’” Id. We also reject the government’s argument
that we have already answered this question in Davis and Bolivar. For
support, it takes out-of-context our statement from Davis “that police
must have reasonable suspicion, that an item to be searched is owned,
controlled, or possessed by [a] probationer, in order for the item to fall
within the permissible bounds of a probation search.” 932 F.2d at 758.
But Davis was concerned with the level of suspicion officers needed to
search a container within a residence already subject to a valid search
condition. Id. at 758–60. We made this clear in Bolivar, where we
explained that Davis addressed “the level of certainty that the parolee
owns, possesses, or controls a particular item within the home.” Bolivar,
670 F.3d at 1095 (emphasis altered).
16 UNITED STATES V. DIXON
officers “must have ‘reasonable grounds for believing’ that
the subject of the warrant resides in the apartment” before
executing an arrest warrant. Id. at 1079 (quoting Perez v.
Simmons, 884 F.2d 1136, 1140 (9th Cir. 1989), as amended
900 F.2d 213 (9th Cir. 1990), as corrected 998 F.3d 775 (9th
Cir. 1993)). This avoided the risk of “diminishing the Fourth
Amendment protections owed to [a third party]
homeowner.” Id.We see no reason to depart from this standard with
respect to a supervisee’s vehicle. As in Motley, a reasonable
suspicion standard runs the risk of officers conducting
intrusive searches on vehicles that have no connection to the
individual subject to the search condition. This case
provides informative examples: Dixon attested that the
police initially confused his minivan with another parked
next to it, and that they also threatened to break into a nearby
Audi. Both of these vehicles belonged to unrelated third
parties. Applying a reasonable suspicion standard would
place innocent third parties at heightened risk of having their
vehicles searched simply because Dixon dropped his car
keys next to their locations.
Moreover, requiring probable cause that the vehicle to be
searched belongs to or is controlled by the suspect subject to
the search condition is consistent with the framework we
outlined in Bolivar and Davis, which addressed the level of
suspicion required for objects within a residence. In Bolivar,
we recognized that under Motley, law enforcement must first
determine that there is probable cause that the residence is
subject to the parolee’s warrantless search condition. See
Bolivar, 670 F.3d at 1095. But once officers have made this
initial determination, reasonable suspicion applies to the
“downstream issue of the level of certainty that the parolee
owns, possesses, or controls a particular item within the
UNITED STATES V. DIXON 17
home.” Id. (emphasis omitted). For example, in Davis, we
applied the reasonable suspicion standard in assessing
whether officers had reason to believe that a safe located in
a probationer’s bedroom in a shared apartment belonged to
the probationer and not to his roommate. 932 F.2d at 758–
59. But the minivan here, unlike the safe in Davis, was not
found inside Dixon’s residence, such as parked in his garage
or in an assigned parking space. 5 Thus, law enforcement had
not yet made an initial probable cause determination—in
other words, whether Dixon owned or controlled the
minivan was not a “downstream” issue. See Bolivar,
670 F.3d at 1095.
Because this case involves a vehicle, rather than a home,
the government suggests that we should apply the
“reasonable suspicion” standard given the lesser expectation
of privacy afforded to vehicles. We do not disagree that
“when it comes to the Fourth Amendment, the home is first
among equals.” Jardines, 569 U.S. at 6. But the government
again takes our caselaw out of context. For example, it relies
on United States v. Scott, 705 F.3d 410 (9th Cir. 2012), in
which we described “the relatively minimal expectation of
privacy that exists with respect to automobiles.” Id. at 417.
But we made this statement within the context of describing
the automobile exception to the warrant requirement—an
5
The government asserts that there is “no reason” that a heightened
suspicion level “should apply to a vehicle that is parked outside of an
apartment, as opposed to one parked inside a garage.” But this argument
illustrates precisely why probable cause is the appropriate standard here.
If officers have probable cause that a parolee lives at a particular address,
then Davis and Bolivar require only reasonable suspicion that the parolee
owned or controlled the vehicle parked in the parolee’s private garage.
The same cannot be said for a vehicle found in an open parking lot, as
Dixon’s was here, because the initial probable cause determination has
not yet been made.
18 UNITED STATES V. DIXON
exception that authorizes a warrantless search of a vehicle
only “so long as there is probable cause.” Id. (emphasis
added). Thus, regardless of lesser privacy expectations
recognized in vehicles, the automobile exception does not
justify a warrantless search in the absence of probable cause.
See Byrd v. United States, 138 S. Ct. 1518, 1530 (2018)
(remanding to address whether law enforcement “may have
been permitted to conduct a warrantless search of the car”
because they had “probable cause to believe it contained
evidence of a crime”); California v. Acevedo, 500 U.S. 565,
580 (1991) (“The police may search an automobile and the
containers within it where they have probable cause to
believe contraband or evidence is contained.”).
C.
In sum, the officers needed probable cause that the blue
Honda minivan was either owned by Dixon or under his
control before physically entering it pursuant to Dixon’s
warrantless search condition. But on the record before us, it
is unclear whether this standard was in fact met. The
government makes no distinct argument as to probable
cause, and the district court did not conduct an evidentiary
hearing because the core underlying fact—the key fit the
minivan—was undisputed. However, there are highly
contested factual disputes as to whether Officer Ochoa had
probable cause to believe that the particular blue minivan
into which he inserted the key was owned or controlled by
Dixon. We therefore remand this case for the district court
to conduct an evidentiary hearing and to rule on Dixon’s
UNITED STATES V. DIXON 19
suppression motion in light of the Jones and Jardines
principles we now apply. 6
IV.
Finally, in the event that the vehicle search is upheld on
remand, we address Dixon’s challenge to the district court’s
denial of a reduction in his offense level for acceptance of
responsibility at sentencing. The district court must begin
sentencing proceedings by correctly calculating the
applicable Sentencing Guidelines range. See United States
v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). “A
mistake in calculating the recommended Guidelines
sentencing range is a significant procedural error that
requires us to remand for resentencing.” United States v.
Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011) (per
curiam).
A defendant who “clearly demonstrates acceptance of
responsibility for his offense” is entitled to a two-level
guideline reduction to his offense level. U.S.S.G.
§ 3E1.1(a). The application notes to the Guidelines explain
that, although rare, “[c]onviction by trial . . . does not
automatically preclude a defendant from consideration” of a
reduction for acceptance of responsibility. Id. cmt. n.2. And
“a defendant is not required to volunteer, or affirmatively
admit, relevant conduct beyond the offense of conviction in
order to obtain a reduction under subsection (a).” Id. cmt.
n.1(A) (emphasis added). Rather, a defendant “may remain
silent in respect to relevant conduct beyond the offense of
6
Because we remand this case to the district court to make a finding
on probable cause in the first instance, we decline to address Dixon’s
argument that the unconstitutional apartment search tainted the jail
search regardless of the minivan search’s constitutionality.
20 UNITED STATES V. DIXON
conviction without affecting his ability to obtain a reduction
under this subsection.” Id. Thus, the failure to admit to
conduct that the jury did not convict on does not necessarily
preclude acceptance of responsibility. Id.; see also United
States v. Rutledge, 28 F.3d 998, 1003 (9th Cir. 1994) (“[The
defendant is] not required to confess to any relevant conduct
beyond the offense of conviction in order to obtain the
reduction.”); United States v. Piper, 918 F.2d 839, 841 (9th
Cir. 1990) (per curiam) (“To merit such a reduction, a
defendant must show contrition for the crime of which he
was convicted, but he need not accept blame for all crimes
of which he may be accused.”).
Given these principles, Dixon was at least eligible for the
two-point acceptance reduction because he accepted
responsibility for all conduct for which he was convicted.
Dixon argues that from the beginning, even before he was
indicted, he admitted that he possessed the controlled
substances found on his person at Bayview Station, but
contested that he possessed these drugs with an intent to
distribute—the charged offense on which the jury hung. In
other words, the jury convicted Dixon of only the lesser-
included offense of simple possession, for which he had
consistently admitted responsibility. 7 The Guidelines thus
permitted the district court to conclude that Dixon had
accepted responsibility for his criminal conduct. Cf. United
States v. Luong, 965 F.3d 973, 992–93 (9th Cir. 2020)
(holding that a defendant’s challenge solely to the presence
of an interstate-commerce element while conceding factual
guilt did not preclude acceptance of responsibility); United
7
The government disputes that Dixon accepted responsibility for his
crimes of conviction, but because the district court categorically deemed
Dixon ineligible for the two-point reduction, it did not make such a
finding for us to review.
UNITED STATES V. DIXON 21
States v. Rojas-Flores, 384 F.3d 775, 780–81 (9th Cir. 2004)
(holding that challenging a legal interpretation and cross-
examining witnesses did not preclude acceptance of
responsibility).
The district court’s denial of Dixon’s request for a two-
point reduction is at odds with this understanding of the
Guidelines. It held that Dixon could not receive this
reduction because “acceptance of responsibility is
essentially [for] the charged offense,” and Dixon did not
accept responsibility for the greater offense of possession
with intent to distribute. As we have just explained,
however, U.S.S.G. § 3E1.1(a) does not require that the
defendant admit to all the charged offenses. Therefore, the
district court erred in finding Dixon categorically ineligible
for this guideline reduction.
V.
For the foregoing reasons, we VACATE the district
court’s denial of Dixon’s motion to suppress, conditionally
VACATE Dixon’s conviction and sentence, and REMAND
this case for an evidentiary hearing. In the event the district
court upholds the search on remand and reinstates Dixon’s
conviction, the district court shall conduct a resentencing so
that it may make a factual finding regarding acceptance of
responsibility in the first instance.