Argued and Submitted February 14, 2013—Pasadena, California
Appeal from the United States District Court for the Central District of California D.C. No. 2:10-cr-00262-SVW-1 Stephen V. Wilson, District Judge, Presiding
André Birotte Jr., United States Attorney; Robert E. Dugdale, Assistant United States Attorney, Chief, Criminal Division; Jean-Claude André (argued), Assistant United States Attorney, Criminal Appeals Section, Los Angeles, California, for Plaintiff-Appellant.
Carlton F. Gunn (argued), Of Counsel, Kaye, McLane & Bednarski, Pasadena, California, for Defendant-Appellee.
Before: Marsha S. Berzon and Paul J. Watford, Circuit Judges, and Jed S. Rakoff, Senior District Judge. [*]
The panel affirmed the district court's suppression of evidence found during a warrantless search of an apartment that the defendant, a parolee, had entered several times during the days preceding the search.
The panel rejected the government's argument that this court's precedent requiring that officers have probable cause to conclude that a parolee lives at an address before carrying out a warrantless search pursuant to a parole search condition is no longer binding law in light of Samson v. California, 547 U.S. 843 (2006).
Applying this court's "relatively stringent" standard, the panel held that the officers' observations were insufficient evidence to establish that the defendant lived at the apartment they searched.
The panel also held that where, as here, it is abundantly clear that the searched property is a residence, a parole condition permitting searches of "your residence and any property under your control" is triggered only when the officers have probable cause that the parolee lives at a residence.
The panel remanded for further proceedings.
Concurring, Judge Watford wrote that United States v. Howard, 447 F.3d 1257 (9th Cir. 2006), which established the rule that parolees have a greater expectation of privacy in someone else's home than they have in their own home, is unsound and warrants reexamination.
Concurring, Judge Berzon wrote separately to respond to Judge Watford's suggestion that applying Howard here permits a parolee to assert greater than Fourth Amendment protection in someone else's home than in his own home and is unsound and warrants reexamination.
BERZON, Circuit Judge:
After police officers arrested Lambert Grandberry, they decided to search a nearby apartment Grandberry had entered several times — at least six — in recent days. The officers relied on Grandberry's status as a parolee as their authority to search the apartment and so did not obtain a warrant. We must address whether the police complied with our precedents requiring that officers have probable cause to conclude that a parolee lives at an address before carrying out a warrantless search pursuant to a parole search condition.
The district court determined that the officers did not have the requisite probable cause with regard to whether Grandberry lived at the apartment searched and so ordered suppression of evidence found there, including a firearm and about seventy-five grams of crack cocaine. We review the district court's decision to suppress evidence de novo, and its factual findings supporting that decision for clear error. See United States v. Song Ja Cha, 597 F.3d 995, 999 (9th Cir. 2010). For the reasons that follow, we affirm.
In January 2010, Los Angeles Police Department (LAPD) Detective Patrick Aluotto received an anonymous tip that someone was selling crack cocaine out of a garage behind 2351 W. 31st Street in Los Angeles. Aluotto contacted an informant who had previously provided reliable information about drug sales. The informant identified the 31st Street garage as "Looney's spot." An LAPD officer who had previously arrested Grandberry clarified that "Looney" was Grandberry's pseudonym. Aluotto and LAPD Officer Cesar Orozco, using a database listing Grandberry's criminal history, learned that Grandberry was on parole for a California felony conviction. One of Grandberry's parole conditions was that "[y]ou and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer." See also Cal. Code Regs. tit. 15, § 2511(b)(4) (2009); Cal. Penal Code § 3067(a) (2009). The two officers also learned from that database that Grandberry lived at 10652 South Manhattan Place in Los Angeles. Aluotto and the informant drove past the 31st Street garage, where the informant identified a red Pontiac parked outside as Grandberry's.
After reviewing a photograph of Grandberry, Aluotto, Orozco, and LAPD Officer Armando Mendoza (collectively, the "Officers") conducted surveillance at the 31st Street address. On January 14, Mendoza observed Grandberry hand a woman a bag of "a substance [that] appeared to be crack cocaine" in exchange for cash.
Rather than arresting Grandberry on the spot, Aluotto, Orozco, and Mendoza decided to "conduct additional surveillance" "to gauge the extent of his narcotics activities." Sometime later in mid-January, the Officers followed Grandberry as he drove from the 31st Street garage to an apartment building at 3418 S. Arlington Avenue, a distance of about two blocks. In the following days, the Officers — sometimes individually and sometimes as a group — observed Grandberry drive between the two locations "in a peculiar manner — cutting . . . through an alley, " as if "to evade law enforcement detection."
The Officers focused their surveillance of Grandberry almost exclusively on the Arlington apartment building, which they visited on a number of occasions between January 14 and January 25, at various times, usually between noon and 10 p.m. While parked outside the building, they observed Grandberry enter the building using "keys he held" at least six times, and perhaps ten. Except once, Grandberry entered the building alone; on one occasion, he entered with a female companion. Another time the Officers saw the same woman arrive at the building alone. On some of the occasions on which the Officers observed Grandberry go into the building, they saw "movement or activity through the window of [a] second-floor unit" just after Grandberry entered, and at least once they saw Grandberry "looking out of the window of that apartment unit."
One officer conducted surveillance after 10 p.m. but never saw Grandberry at the Arlington apartment building past ten or during the early morning. None of the Officers checked the names on the building's mailboxes to see if Grandberry received mail there. None of them ever observed him carrying groceries, laundry, newspapers, or mail. None asked any neighbors whether Grandberry lived there; examined the building's trash for whether it contained anything of Grandberry's; or investigated who leased or lived in the Arlington apartment.
Once, the Officers saw Grandberry leave the Arlington apartment building, approach a parked vehicle, hand a man a white paper bag, then re-enter the building. Other officers detained the man, who was carrying $9, 000 in cash. The man was not charged with any offense.
The Officers knew that Grandberry had reported to his parole officer that he lived on South Manhattan Place, the same address the California Department of Motor Vehicles (DMV) had on file for Grandberry. Two of the Officers conducted "very brief" surveillance at that address for about an hour on a single afternoon or evening in January. They did not see Grandberry. The two observed that the house appeared occupied; they did not interview anyone at the house or any neighbors as to whether Grandberry lived there. Nor did they ask Grandberry's parole officer whether Grandberry lived on South Manhattan Place, because they "did not want to inadvertently tip [Grandberry] off to [the] continuing investigation."
On January 25, the Officers decided to arrest Grandberry for the January 14 narcotics sale. They went to the Arlington address, where they saw him leave the apartment building and drive away in the Pontiac. When he later returned and stepped out of the car, but before he had entered the building, the Officers identified themselves as police. Grandberry thereupon ran away and tossed keys to the ground; the Officers chased after him. Ultimately, Aluotto and Mendoza used physical force to detain Grandberry. Orozco picked up the keys, approached Grandberry, and according to Orozco, said: "You are on parole with search conditions. We are going to search your place now." Orozco later testified that Grandberry responded: "Do what you gotta do." Grandberry denies that such a "conversation . . . took place." The Officers did not ask Grandberry whether he lived at the Arlington apartment, or who did live there.
Orozco agreed at the suppression hearing that the Officers had "plenty of time" to get a search warrant but took no steps to do so. Instead, they used Grandberry's keys to enter first the apartment building and then the apartment in which they had previously observed Grandberry. Once in the apartment, the Officers discovered cocaine (in the kitchen and in a bedroom closet); a loaded gun (in a hallway closet); male clothing (in the hallway); and mail addressed to Grandberry at the Manhattan Place address. They later found more cocaine in the red Pontiac parked outside.
A federal grand jury indicted Grandberry of one count of distributing more than five grams of crack cocaine (the crack sold on January 14), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) (2006); one count of possessing more than fifty grams of crack cocaine (the crack found in the Arlington apartment, which alone was more than fifty grams, as well as that in the red Pontiac, which was only a few grams), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) (2006); and ...