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. 1 Although Plaintiffs alleged a variety of constitutional violations 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 Constitution.
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 district 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 Dora-do. Accordingly, we affirm as to those Defendants as well. 2
This case arises out of a botched attempt by law enforcement to locate a parolee in Plaintiffs’ residence. On September 19, 1999, the parolee, Randy Witmore, was arrested in 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 telephоned the Diamond Springs address to ask how Witmore was doing, Rod-rigues informed the parole officer that Witmore did not live there and that there was an order in place requiring Witmore 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On March 5, 2002, Witmore was sent to prison after his probation was revoked, but, on July 29, 2003, he again was paroled.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 Wit-more 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 Diamond 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 Witmore’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 reрort to the parole unit as he had been 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 parolee. 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 Witmorе’s whereabouts. If de Roco found Witmore there, he would take him into custody.
On February 25, 2004, de Roco contacted the El Dorado County Sheriffs Office and was placed in contact with Deputy Sheriffs Starr, Horn and Cook. De Roco informed the deputies 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 custody.”
That evening, de Roco met with the deputies at a convenience store nеar Cue-vas’s residence. At the meeting, accord
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 Witmore, although their appearances are fаr 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 tuckеd 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 covered the front window, so the area was only slightly illuminated 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 thе 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 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 Rocо, 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 Wit-more 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 аlso began pushing against the door.
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. Deputy Starr went “to look around for Mr. Witmore” in a protective sweep of the residence, but the only other person present was Plaintiffs’ baby. The record indicates that at least one оf 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 consulting with other officers, Deputy Starr arrested Cuevas for knowingly performing a battery on a custodial officer, in violation of California Penal Code § 243.1. However, the district attorney decided not to press charges because, he concluded, Cue-vas 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 violation, it did not determine whether Defendants were protected by qualified immunity. Plaintiffs timely appealed.
II. Standard of Review
“A grant of summary judgment is reviewed de novo.”
Blankenhorn v. City of Orange,
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
“It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.”
Brigham City, Utah v. Stuart,
The warrantless entry into Plaintiffs’ home cannot be justified as a search for a pаrolee 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,
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 basically 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 understood that Witmore was not currently living at the Diamond Springs address. The record supports the inference that de Rocо 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[edj” 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 authorities an address other than the Diamond Springs address after 2002. If they had made such an effort, the deputies would have lеarned from the August 2003 parole form that Witmore’s last known address was the Ridgeview Manor in Placerville. They might also have learned that, in December 2001, Lori Rod-rigues informed Witmore’s parole officer that Witmore did not live at the Diamond Springs address. Further, the deputies conducted no surveillance at the Diamond Springs address to determine whether Witmore lived there, 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
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.
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 explanatiоn 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.
Nor does the fact that de Roco thought Cuevas resembled Witmore сhange our conclusion. Even if the deputies were permitted to rely on de Roco’s belief that Cuevas resembled Witmore,
see United States v. Jensen,
In sum, the information suggesting that Witmоre might have resided at the Diamond Springs address was several years old, uncorroborated by available sources, and contradicted 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, approximately three months after she had moved in.
More generally, in Howard we surveyed four cases in which a search was рroper 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 parolee had reported a different address, but officers had good reason to believe that he was not actually residing 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 unrepоrted 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 residence in question as that of the parolee.
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 Plaсerville, and the deputies did not have good reason to 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.
Thus, viewing the faсts 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
However, Deputies Horn and Cook did not violate Plaintiffs’ Fourth Amendment rights by entering the residence.
6
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,
B. Qualified Immunity
Deputy Starr nonetheless contends that he is protected by qualified immunity. Having concluded that Deputy Starr violated Plaintiffs’ Fourth Amendment rights, we must determine whether, in the specific context of this case, those constitutional rights were clearly established at the time of the violation.
See Saucier v. Katz,
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,
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,
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 officers in that case had a reasonable basis “for the belief that [the parolee] lived” at a residence when they saw him enter the residencе 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 “return! ] with dry cleaning, change[ ] his clothes and [leave] the apartment carrying laundry.”
In subsequent cases, as noted,
swpra
note 4, we employed the prоbable cause standard “stringently].”
Howard,
Whatever doubt might have remained on that point was disposed of by
United States v. Gorman,
Gorman
reinforced the principle that our prior parole search cases strongly suggested: The “reasonable basis” standard does not depart in any important regard from the “prоbable cause” standard, and the police therefore cannot conduct a war-rantless 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,
The information Deputy Starr acted upon fell well below the “reasonable basis” standard as applied in the cases decided before the events underlying this case. It would therefore be clear to a reasonable officer in Deputy Starr’s position, considering his actions in light of the then-existing case law, that his conduct was unlawful.
See Saucier,
Finally, the limits of a lawful protective sweep were also clearly established at the time of the search.
See Buie,
Accordingly, Deputy Starr is not protected by qualified immunity.
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 concerning 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.
Notes
. We decline to strike Plaintiffs’ opening brief, which, despite some inaccuracies, adequately states their case.
. 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.
. De Roco testified at his deposition that the telephone number associated with the Diamond Springs address on Witmore's parole form was disconnected, 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.
. Those four cases are
United States v. Conway,
. Because the warrantless entry was unconstitutional regardless of Witmore’s parole status, we need not consider Cuevas and Burlette's arguments concerning California pаrole law and policy.
.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,
. We note that Cuevas’s arrest was not unlawful because it was supported by probable cause. Accordingly, neither Deputy Starr nor any of the other Defendants is liable for damages resulting from the arrest itself.