OFFICERS’ SEARCH OF A HOME LAWFUL BASED ON THEIR REASONABLE, THOUGH MISTAKEN, BELIEF THAT PAROLEE SUBJECT TO SEARCH CONDITION LIVED THERE

Courtesy of James R. Touchstone, Esq.

On November 15, 2019, in the case of United States v. Ped,[1] the Ninth Circuit Court of Appeals determined that a District Court did not err in denying a defendant’s motion to suppress firearm evidence found in a warrantless search of his home. The Court concluded that the officers had probable cause to believe that the defendant’s parolee brother lived at defendant’s house based upon a list provided to police by the parolee’s probation officer, which stated that the parolee had reported living at the defendant’s address. The parolee had informed the probation officer of a different current address shortly before the search, but the officers were never informed of the new address and did not otherwise learn of this information by the time of the search.

Background

Defendant Anthony Lee Ped and Nick Wilson are brothers. In April 2016, Wilson was released from the custody of the California Department of Corrections and placed on post-release community supervision. The terms of that supervision permitted officers to search Wilson’s “residence and any other property under [his] control . . . without a warrant day or night.” When Wilson was released from prison, he informed his probation officer that he lived at his family’s home on Eliot Street in Santa Paula, California. Ped also lived there.

Soon thereafter, officers conducted a warrantless search of the house. Wilson was not present at that time. Officers spoke with Wilson’s mother and confirmed that Wilson lived there. Later, officers went to the Eliot Street address in response to a family disturbance call, and were met during that visit by Ped and his mother. Again, officers confirmed that Wilson lived there.

In June 2016, Wilson’s probation officer provided the Santa Paula Police Department with a list of names and addresses of persons living in Santa Paula who were subject to supervision. The list included Wilson at the Eliot Street address. The next day, however, Wilson was arrested on unrelated charges and held at the Ventura County Jail, where he remained for three months. Upon his release, Wilson told the probation officer that he would be living in Newbury Park, California. The probation officer did not independently verify that new address, nor did he update the list he previously had given the Santa Paula Police Department.

About ten days after Wilson’s release, Santa Paula Police Department officers—including one of the officers involved in the response to the earlier family disturbance call—randomly selected Wilson for a routine search of individuals on supervised release. Because the officers were unaware that Wilson had reported that he moved to Newbury Park, the officers went to the Eliot Street address. As they approached the house, they heard a commotion inside. The officers pushed open the door, and saw Ped holding a methamphetamine pipe. Both Ped and his mother said that Wilson no longer lived there. The officers did not believe them and searched the residence anyway. The search produced seven firearms. Ped admitted under questioning that the weapons were his and that he had previously been convicted of a felony.

A grand jury indicted Ped on three counts, including being a felon in possession of a firearm, in violation of 18 U.S.C. section 922(g)(1). After the District Court denied a motion to suppress the evidence found in his house, Ped entered into a conditional plea agreement in which he pled guilty to the Section 922(g)(1) count but retained the right to appeal the denial of the suppression motion. Ped appealed, challenging the denial of his motion to suppress.

Discussion

The Ninth Circuit Court of Appeals explained that it is a “basic principle of Fourth Amendment law . . . that searches and seizures inside a home without a warrant are presumptively unreasonable,” Kentucky v. King, 563 U.S. 452, 459 (2011) (citation omitted). Parolees, however, “have severely diminished expectations of privacy by virtue of their status,” Samson v. California, 547 U.S. 843, 852 (2006). Parolees may be subject to warrantless searches of their homes without a warrant or suspicion of wrongdoing (Cuevas v. De Roco, 531 F.3d 726, 732 (9th Cir. 2008) (per curiam)), even if other people also live there. United States v. Bolivar, 670 F.3d 1091, 1092-93, 1096 (9th Cir. 2012); see also Samson, 547 U.S. at 856-57.

However, the Court observed, the police must “be reasonably sure that they are at the right house”; a parolee’s diminished expectation of privacy cannot “justif[y] the entry into and search of a third person’s house to search for the parolee.” Motley v. Parks, 432 F.3d 1072, 1079 (9th Cir. 2005) (en banc), overruled in part on other grounds by United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam). To protect the interests of third parties, “officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Id. at 1080. “[P]robable 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.” Grandberry, 730 F.3d at 975 (quoting United States v. Diaz, 491 F.3d 1074, 1077-78 (9th Cir. 2007)).

Here, the Court of Appeals declared that the list the probation officer provided to the police officers – which stated that Wilson had reported living at the Eliot Street address – was the most important circumstance establishing probable cause. The Court noted that it had held in Motley that officers acted reasonably when they relied on a similar list. 432 F.3d at 1080-82.

Ped pointed out that the list in Motley was one month old whereas the list here was three months old. The Court acknowledged that at a certain point, a reported address would become so old that it would no longer be reasonable for officers to rely on it. However, nothing about Wilson’s reported address indicated that it was likely to be temporary, and although a person living in a house with family members might move away in less than three months, it would be reasonable to expect that he would still live there.[2]

The Ninth Circuit also noted that the staleness of information establishing probable cause must be evaluated “in light of the particular facts of the case.”[3]  The Court determined that the particular facts here included substantial information corroborating the listed address. Specifically, the Court found that the officers reasonably relied on their earlier visits to the Eliot Street address, in which they had confirmed that Wilson lived there from Wilson’s mother and Ped. Those facts supported the reasonableness of their belief that they were at the right residence for Wilson.

The Court noted the assessment of probable cause takes into account “the totality of the circumstances known to the officers at the time of the search.” Lacey v. Maricopa County, 693 F.3d 896, 918 (9th Cir. 2012) (en banc) (quoting United States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir. 2004); italics added).  Although Wilson had told his probation officer that his new residence was in Newbury Park ten days before the officers conducted the search at his old residence in Santa Paula, the officers did not know that. The Court thus found that the probable cause assessment was not affected by this information.

The Court reflected that the officers could have made additional inquiries to verify that Wilson still lived at Ped’s house in Santa Paula. However, because the officers had a reasonable basis for believing that Wilson lived there, they were not required to take further steps to confirm his last reported address.

The Court rejected Ped’s contention that even if the officers had probable cause when they arrived at the house, it became unreasonable for them to proceed with a search once Ped and his mother informed the officers that Wilson no longer lived there. The Court explained that as long as the officers had information establishing probable cause, they were entitled to proceed unless “presented with convincing evidence that the information they had relied upon was incorrect.” Motley, 432 F.3d at 1082 (quoting Moore v. Vega, 371 F.3d 110, 118 (2d Cir. 2004)). The Court did not find Ped’s and his mother’s statements constituted “convincing evidence.” Ped’s attempt to discourage the search came right after the officers saw him with a methamphetamine pipe, and neither Ped nor his mother provided an alternate address for Wilson. Those statements, coming from “less-than-disinterested source[s], did not undermine the information the officers previously had received.” Id.

The Ninth Circuit Court of Appeals accordingly affirmed Ped’s conviction but remanded for modification of the conditions.

How This Affects Your Agency

As the Ninth Circuit observed here, “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.” Grandberry, 730 F.3d at 975 (quoting United States v. Diaz, 491 F.3d 1074, 1077-78 (9th Cir. 2007)). The Court noted that “[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Heien v. North Carolina, 574 U.S. 54, 60-61 (2014). In its decision here, the Court makes clear that probable cause may exist even when officers rely on mistaken information reasonably believed.

Agencies should be aware that the Court did note, however, that the officers could have made additional inquiries to verify Wilson’s listed residence as his current one, although they were not required to do so in this case. In similar circumstances, where such verifications may feasibly be pursued prior to such searches, doing so can only supplement the totality of the circumstances in defending against claims arguing a lack of probable cause. Agencies should also be aware of the Court’s admonition that the at a certain point, a reported address would become so old that it would no longer be reasonable for officers to rely on it. What that staleness threshold might be is yet undetermined.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] United States v. Ped, 2019 U.S. App. LEXIS 34092 (9th Cir. Nov. 15, 2019).

[2] See United States v. Harper, 928 F.2d 894, 896-97 (9th Cir. 1991) (holding that officers had probable cause to believe that the parolee lived in a particular house because, among other factors, the parolee’s family rented the house and two of his brothers lived there), overruled in part on other grounds by King, 687 F.3d at 1189.

[3] United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991).