Lead Opinion
Oрinion by Judge BERZON; Concurrence by Judge WATFORD; Concurrence by Judge BERZON.
OPINION
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 deci
I.
In January 2010, Los Angeles Police Department (LAPD) Detective Patrick Al-uotto 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 Grandber-ry’s criminal history, learned that Grand-berry 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 CaLCode 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 Grandber-ry’s.
After reviewing a photograph of Grand-berry, 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 Offiсers—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 offiсer 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 build
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 Grandber-ry. 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. Or-ozco picked up the keys, approached Grаndberry, 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.” Grand-berry denies that such a “conversation ... took place.”
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 Grandber-ry 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)(l)(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)(l)(A)(iii) (2006); and one count of possessing a firearm in furtherance of a drag trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (2006).
II.
The question before us is whether the warrantless search of the Arlington apartment was valid under the Fourth Amendment because Grandberry was subject to a parole search condition. The government contends that the search was permissible for either of two reasons: first, the Officers had probable cause that the Arlington apartment was Grandberry’s residence; and alternatively, the provision of Grand-berry’s search condition authorizing searches of “any property under [his] control” permitted the search. We address each argument in turn.
A.
Police or parole officers may lawfully conduct searches of parolees or their residences without satisfying the Fourth Amendment’s warrant requirement when certain conditions are met. One such condition is that the parolee is subject to a provision authorizing such warrantless searches. See United States v. Lopez,
1.
We begin by addressing the government’s argument that Motley, Howard, and their progeny are no longer binding law in light of Samson. For this proposition the government relies on language in Samson stating that the parolee in that case lacked “an expectation of privacy that society would recognize as legitimate.”
As a three judge panel, “as long as we can apply our prior circuit precedent without running afoul of [Samson], we must do so.” Lair v. Bullock,
(a) Substantively, the Motley/Howard rule is certainly not “clearly irreeoncil
Second, Motley, which did squarely address that question and was followed as to that point in Howard, proceeded from the premise that the answer does not depend on the degree of suspicion as to wrongdoing required for a parole or probation search. We recognized in Motley that “[a] state may closely supervise parolees and impinge on their privacy rights to a greater extent than on the rights of the general public.”
(b) The government maintains at some junctures in its argument that its contention is one of Fourth Amendment standing, not of substance. On that view, no parolee would have standing to seek suppression of evidence obtained in violation of the Motley/Howard rule, although a non-parolee resident whose home is searched in reliance on another individual’s parole search condition may have a suppression remedy or the right to bring аn affirmative action under 42 U.S.C. § 1983. Samson does not require such a dichotomy.
Under our precedents, Grandberry has standing to assert that the search of the Arlington apartment violated the Fourth Amendment by virtue of his status as an overnight guest there. See United States v. Gamez-Orduño,
Prior to Samson, we applied the Motley rule not only in the § 1983 context but also in cases involving parolee-defendants’ motions to suppress, as long as Fourth Amendment standing was otherwise established. In Howard, for example, the defendant stayed overnight at his girlfriend’s apartment the night before the search. See
Samson is not itself a case about Fourth Amendment standing, and it does not purport to change the requisites for raising a challenge to a substantively invalid search. Moreover, the government is wrong in asserting that Samson stripped parolees of any Fourth Amendment protection.
Samson specifically disavowed the notion that its opinion rested on “equaling] parolees with prisoners for the purpose of concluding that parolees, like prisoners, have no Fourth Amendment rights,” pointing out that “[i]f that were the basis of our holding ... there would have been no cause to resort to Fourth Amendment analysis.” Samson,
Consistent with its recognition that parolees are not exempt from Fourth Amendment protection, Samson left open, for example, the possibility that a parolee subject to a search condition could challenge searches conducted by officers who lacked “knowledge that the person stopped for the search is a parolee,” as well as for “arbitrary, capricious or harassing searches.” Id. at 856 & n. 5,
(c) For all these reasons, neither the substance of the Motley /Howard “probable cause” requirement as to a parolee’s residence, nor the recognition that a parolee-defendant who otherwise has Fourth Amendment standing can seek to exclude from trial evidence obtained from a search not meeting that requirement, is “clearly irreconcilable with [Samsоn’s] reasoning or theory.” Miller,
2.
Applying the Motley/Howard rule, probable cause as to residence exists if an officer of “reasonable caution” would believe, “based on the totality of [the] circumstances,” that the parolee lives at a particular residence. United States v. Diaz,
In implementing this standard, we have identified “certain patterns” that “clearly emerge[d]” in most cases in which officers have probable cause to conclude that a parolee lived in a residence “not reported by [the] parolee” as his address. See Howard,
The government contends that the following facts, in combination, were sufficient to establish probable cause that Grandberry lived at the Arlington apartment: (1) Grandberry responded to Orozco’s announcement that the Officers were about to search his “place” by saying: “Do what you gotta do”; (2) the Officers did not observe Grandberry at his reported Manhattan Place residence on the single occasion that they conducted “very brief’ surveillance there; (3) the Officers observed Grandberry at the Arlington apartment about six to ten times during their afternoon and evening surveillance there (but not during their less frequent nighttime operations); and (4) Grandberry used a key to enter the Arlington apartment. Under our “relatively stringent” standard, see Franklin,
First, both Orozco’s statement and Grandberry’s response were entirely ambiguous. Orozco announced that the Officers were “going to search [Grandberry’s] place.” Grandberry responded: “Do what you gotta do.” Orozco’s reference to “your place” gave no indication that Orozco viewed the Aldington apartment as Grand-berry’s residence. Grandberry could easily have understood “your place” to refer to “your garage down the block on 31st Street,” or the South Manhattan Place address. Moreover, Grandberry’s response was not an admission of anything. Instead, it signaled recognition of the fact that the Officers, who had just “restrain[ed] and controlled]” Grandberry, were going to pursue their investigation of his activities as they saw fit; they did not ask for his consent to do so, and he did not give it. Grandberry’s resigned response cannot reasonably be understood either as admitting that he lived at the Arlington address or as acquiescing that the search of that apartment was consistent with his parole condition.
The weakness of the government’s reliance on the “your place” interchange between Grandberry and Orozco is highlighted by comparing that exchange with those in cases in which we have concluded that “either the parolee’s co-resident or the parolee himself identified the residence in question as that of the parolеe.” See Cue-vas,
Second, as the district court found, the Officers’ surveillance of Grandberry’s reported residence—at South Manhattan Place—-was “very peripheral.” In more than thirty years of assessing whether officers had probable cause to believe that a parolee or probationer lived at a searched residence, we have never found probable cause where, as here, the parolee officially and consistently reported a residential address other than the one searched, unless there was an affirmative and substantial basis for concluding that he did not actually live there. See Cuevas,
Here, the Officers knew when they conducted surveillance at the Arlington apаrtment that six months earlier, Grandberry had reported to his parole officer that he resided on South Manhattan Place. The Officers also knew that Grandberry had reported that same address to the California Department of Motor Vehicles. The Officers nonetheless conducted only the most cursory surveillance of the South Manhattan Place address. They visited it exactly once, by sitting for an hour or two
The cases in which we have concluded that officers had “good reason to believe that [a parolee] was not actually residing at [his] reported address,” Howard,
In comparison, the Officers’ surveillance at South Manhattan Place was perfunctory. Their meager attempt to conduct any “further inquiries” into Grandberry’s reported residence at South Manhattаn Place, confirmed by his driver’s license address, weighs against the reasonableness of their conclusion that Grandberry lived elsewhere. See Cuevas,
Third, Grandberry’s repeated presence at the Arlington apartment is certainly entitled to some weight in the probable cause analysis. We have emphasized several times, however, that a parolee’s presence at a residence, even if frequent, does not, standing alone, establish probable cause that the parolee lives there. Our cases distinguish between evidence that a parolee had “visited” a particular residence and evidence that a parolee “lived there.” Howard,
In Howard, for example, the officers lacked probable cause as to residence even though police saw the defendant “stretching in the doorway of [the searched] apartment the morning of the search.” Id. at 1268. And in Watts v. County of Sacramento,
Here, the Officers never observed any signs that Grandberry stayed overnight at
Moreover, in cases in which we havе concluded that police officers had probable cause as to residence, they “had directly observed something that gave them good reason to suspect that the parolee was using his unreported residence as his home base.” Cuevas,
Of the facts that we have considered so far, then, Grandberry’s presence at the Arlington apartment six to ten times in two weeks is the only fact consistent with Grandberry’s living there, and it is a weak indication, on its own. That Grandberry also possessed and used a “key tо [enter] the residence in question” is, however, potentially of significance in the probable cause calculus. See Cuevas,
In analyzing the relevance of a parolee’s possession and use of a key, we have made clear that such a fact, standing alone, does not establish probable cause. In United States v. Harper,
Here, the Officers saw Grandberry using a key to enter the residence in question more times than in Harper (although with about the same frequency, given the period of observation). The number of times Grandberry used the key, however, is of relatively little additional probative value in assessing whether the apartment in question was Grandberry’s residence, as
Grandberry’s key access to the Arlington apartment would not, without more, lead a reasonably prudent person to believe that he lived there. And the other factors—especially the considerations that Grandberry was not seen at the Arlington apartment during the Officers’ nighttime surveillance, and there was no basis for doubting that Grandberry lived where he had reported he did, on South Manhattan Place—point strongly in the opposite direction. We therefore conclude that under our “relatively stringent” standard, the Officers lacked probable cause to conclude that Grandberry lived at the Arlington apartment that they searched.
B.
The government also argues that regardless of whether the Officers had probable cause to believe that Grandberry lived at the Arlington apartment, the search was nonetheless permitted under the provision of Grandberry’s search condition authorizing searches of “any property under [his] control.” As the government reads the search condition, the search was justified because the Arlington apartment was real “property under [Grandberry’s] control,” with the control evidenced by Grandberry’s repeated entry to the building with keys.
Assuming, without deciding, that Grand-berry exhibited a sufficiently strong connection to the apartment to demonstrate “control” over it, we conclude that an expansive understanding of the “property under your control” condition, if applied to residential locations, cannot coexist with our longstanding probable-cause-as-to-residence requirement. As we are bound by our precedent, we conclude that the “property under your control” provision cannot
In Motley, the California parolee on whose search condition the officers sought to rely was subject to a similar condition to Grandberry’s, authorizing searches of “his person, residence, and any property under his control.”
Notwithstanding the “any property” provisions applicable in those cases, Motley and Cuevas stated our probable-cause-as-to-residence rale as a requirement that must be independently satisfied to justify any warrantless search of a house or other residence pursuant to a parole condition:
[W]e hold that before conducting a war-rantless search 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.
Motley,
[Ajbsent such probable cause, ‘[njothing in the law justifies the entry into and search of a third person’s house to search for the parolee.’
Cuevas,
Under Motley, Cuevas, and Mayer, the probable-cause-as-to-residence requirement does not admit of the loophole that the government urges. Confirming the understanding underlying our precedents, we observe that the government has cited no case—and we have found none—applying the “property under your control” search condition to a residence. Instead, the fairly large number of cases applying that term uniformly involve searches either of vehicles or of items found in a residence. See, e.g., People v. Schmitz,
Moreover, the government’s proposed reading of Grandberry’s search condition would violate “one of the most basic interpretive canons, that ‘a statute [or regulation] should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’ ” See Corley v. United States,
Our limited reading of the “property under ... control” condition in Grandberry’s search condition also conforms to the doctrinal underpinnings of the probable-cause requirement, which implements the “special protection” “accord[ed] ... to the home” under the Fourth Amendment. See United States v. Johnson,
We conclude 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.
CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of Grandberry’s mo
AFFIRMED.
. A separate group of LAPD officers arrested the woman for possession of a controlled substance during a traffic stop shortly thereafter.
. The district court made no factual finding as to whether this conversation between Or-ozco and Grandberry took place. The court deemed Orozco's testimony credible in other respects and made no credibility determination as to Grandberry.
. Grandberry initially moved to suppress the crack cocaine found in the Pontiac, but he later abandoned that argument in the district court and does not press it on appeal. He never sought suppression of the crack cocaine sold on January 14.
. Nor does Lopez, the case in which we held that Samson applies to residential searches in reliance on a parole condition, address the Motley/Howard rule. See
. Unlike Fourth Amendment standing, which can be assessed based on evidence unknown to police officers at the time of a search, see Wayne R. LaFave, Search and Seizure § 11.3, at 162 (5th ed.2012), "the determination of probable cause is based" only on "the totality of the circumstances known to the officers at the time of the search,” Lacey v. Maricopa Cnty.,
. We have continued to cite Watts's analysis as persuasive in applying the probable cause standard. See Howard,
. Two cases post-dating Howard's and Cue-vas 's synthesis of our precedents are not to the contrary. In Franklin, the defendant had not reported any residential address.
. Of course, officers may have probable cause that a parolee lives at "more than one residence,” given sufficient observations. See Case v. Kitsap Cnty. Sheriffs Dept.,
. Grandberry argues that the government forfeited this argument because the prosecutor (1) failed to brief it before the hearing on the motion to suppress; and (2) affirmatively disavowed the argument at that hearing, stating "we’re not sure that the 'property under your control’ language would actually apply to residences, which is probably why the parties did not frame it like [t]hat.” The government soon thereafter, however, disavowed the disavowal, submitting a supplemental brief on the issue. Grandberry, in turn, filed a response, arguing that the government’s argument was forfeited because it was raised after the evidentiary hearing, but also responding to the government’s motion on the merits, proffering several exhibits in support. The district court acknowledged the supplemental briefs in an order filed the next month, and afforded the government an opportunity to reply to Grandberry’s newly introduced evidence; the government did not do so. So in the end, the issue was " ‘raised sufficiently for the [district] court to rule on it.' ” See Walsh v. Nev. Dep’t of Human Res.,
But the district court did not address the "property under ... control” issue in its final suppression order. Whether that was due to an oversight or a conclusion that the issue was not properly raised, we do not know. Although the district court would almost certainly have had the discretion to refuse to entertain an issue first raised after the briefing and hearing on the motion to suppress— and after an express disavоwal of the argument in open court—we cannot tell whether that is what the court did. We therefore choose to decide the question—which was fully briefed before us—rather than declaring it forfeited. See Whittaker,
. Boyd states in passing that the police in that case "decided to search [a parolee's] residence ... pursuant to” a search clause "statftng] that [his] “property ‘and any property under his control can be searched without a warrant.’ " ”
. As noted, the search condition at issue here is imposed uniformly on California parolees pursuant to a statutory and regulatory scheme. See Cal.Penal Code § 3067(b)(3) (2012); Cal.Code Regs. tit. 15, § 2511(b)(4) (2013).
. The California Department of Corrections and Rehabilitations (CDCR)’s own explanation of the condition is consistent with this understanding of the phrase "property ... under control": "Simply stated, the standard conditions of parole are [that] ... the parolee, their residence, and possessions can be searched at any time of the day or night....” See Cal. Dep’t of Corrections & Rehab., Parolee Conditions, http://www.cdcr.ca.gov/Parole/ Parolee_Conditions/index.html (last visited Sept. 10, 2013). Lopez suggested the same understanding, summarizing the condition as giving notice that a parolee’s “person, his property, and his residence were subject to” search. See
.For these reasons, this case does not present the question whether the search of nonresidential real “property” “under” a parolee's “control,” such as a storefront or warehouse, could be justified under the terms of this search condition.
Concurrence Opinion
concurring:
Do parolees have a greater expectation of privacy in someone else’s home than they have in their own home? I cаn’t think of any reason why they should. Yet that is the rule we established in United States v. Howard,
Although once open to debate, it’s now settled that a criminal defendant may seek suppression of evidence discovered during an illegal search only if the defendant’s own Fourth Amendment rights were violated. Rawlings v. Kentucky,
Had the warrantless search at issue here occurred at Mr. Grandberry’s own home, he would not have been able to seek suppression of the evidence. As a parolee subject to California’s stаndard condition authorizing warrantless, suspicionless searches of his residence, Mr. Grandberry has no legitimate expectation of privacy in his own home. See United States v. Lopez,
The only answer I’ve heard is that Minnesota v. Olson,
That does not mean, of course, that the host’s Fourth Amendment rights are in any way diminished. If the police conduct a warrantless search of the host’s home, on the unsupported belief that the parolee resides there, the host’s Fourth Amendment rights are undoubtedly violated. The host could seek suppression of any
The principle that a defendant can’t assert greater Fourth Amendment rights in someone else’s home than she has in her own home has been around for some time. In fact, we held exactly that while sitting en banc thirty years ago: “A person has no greater right of privacy in another’s home than in his own.” United States v. Underwood,
The only other observation I would add is the one Judge Noonan made in his concurrence in Howard. He rightly observed that the effect of our holding in that case is to give parolees who’ve decided to re-offend a “safe house” for storing contraband and conducting illicit activities. Howard,
In short, Howard is a decision ripe for reconsideration. We engaged in no Fourth Amendment analysis there to support the rule we adopted; in fact, we did not so much as cite Minnesota v. Olson,
Concurrence Opinion
concurring:
I write separately to respond to Judge Watford’s suggestion that applying United States v. Howard,
In my view, our outcome is compelled not solely by Howard, but also by the text of Grandberry’s parole search conditions, which allow suspicionlеss searches of only the parolee’s person, his residence, and property under his control. There is no provision permitting parole searches of other people’s houses in which a parolee is an overnight visitor but where he does not reside. Thus, to the degree Grandberry has more substantive protection with regard to searches of his surroundings—but not of his person, assuming proper entry— in other people’s houses, that difference stems largely from California law, as do the “doctrinal inconsistencies,” id. at 985, that trouble Judge Watford.
California may have good reason to tie its own hands with regard to parole searches. The State has an interest protecting the privacy of its law-abiding citizens from intrusion on the basis of simple association with a parolee. To allow suspi-cionless searches of any residence in which a parolee is found threatens the privacy of family, friends, and others who advance the State’s interest in “reintegrati[ng] parolees into productive society.” Samson v. California,
Judge Watford suggests that this third-party substantive interest can be accommodated by allowing a non-parolee whose home is searched to have standing to sue (or to invoke the exclusionary rule if prosecuted). This approach would run into a second line of authority, that derived from Minnesota v. Olson,
Olson recognized that a guest has a lesser privacy interest in a home in which he is a guest than in his own home, id. at 99,
[t]he host may admit or exclude from the house as he prefers, but it is unlikely that he will admit someone who wants to see or meet with the guest over the objection of the guest.... The point is that hosts will more likely than not respect the privacy interests of their guests, who are entitled to a legitimate expectation of privacy despite the fact that they have no legal interest in thepremises and do not have the legal authority to determine who may or may not enter the household.
Id. The parole conditions required in California and imposed on Grandberry do not undermine the limited privacy expectation on which Olson rests, precisely because they apply only to Grandberry’s person, residence, and the property he controls.
There is simply no precedent for precluding an individual from challenging a search in a location in which the search is indeed unconstitutional as to the resident, and the individual would have standing under Olson, and there is no condition or circumstance limiting his privacy interest as to that location. In short, if there is an anomaly here, it is Olson, and not our precedent. And, of course, we are obliged to follow Olson.