Metropolitan News-Enterprise


Friday, May 26, 2006


Page 3


Ninth Circuit Limits Scope of Parole Search


By a MetNews Staff Writer


The police do not have probable cause to believe that a parolee lives at an unreported residence, so as to justify a warrantless search, where the police watched the address in question for a month and did not see the parolee there, and other usual fact patterns which support probable cause were lacking, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court reversed the ruling of U.S. District Judge Philip M. Pro of the District of Nevada that the police had probable cause to believe that Curtis R. Howard resided at the searched residence, reversed the judgment of the district court, and vacated the guilty plea Howard entered after his challenge to the search was denied.

“We have applied a relatively stringent standard in determining what constitutes probable cause that a residence belongs to a person on supervised release. It is insufficient to show that the parolee may have spent the night there occasionally. Instead, the facts known to the officers at the time of the search must have been sufficient to support a belief, in “a man of reasonable caution,” that [the parolee] lived at [the residence],” Judge Jay S. Bybee wrote for the court.

Howard, who was convicted of bank robbery in 1996, was placed on supervised release in 2003. The conditions of his release included his consent to “warrantless search[es] of his residence” and a prohibition that he “not associate with any persons engaged in criminal activity . . . or convicted of a felony.”

Howard met Tammi Barner, a seven-time convicted felon, on a bus, the record showed. Barner was on probation and was recovering from cocaine addiction. The two began a relationship.

When Howard’s probation officer, Robert Acquino, learned of the relationship, he instructed them to end it.

In February 2004 a confidential informant called Acquino, claimed to know Howard, and said that Howard was living at 2221 West Bonanza, and had a firearm hidden there. Barner had told Acquino that she lived at 2221 West Bonanza, apartment 49. The informant also said that he or she had not seen Howard for at least two weeks.

Acquino investigated and found a couple of witnesses who said they had seen Howard at the West Bonanza complex.. Acquino became concerned that Howard was breaking the terms of his release, and using the West Bonanza residence to engage in illegal behavior.

Later, an officer from the police gang unit told Acquino that a reliable juvenile informant reported that Howard was a gun dealer and might be a leader of the West Coast Bloods.

Acquino drove to the West Bonanza complex one morning and found Howard’s car parked below apartment 49 at around 5 a.m. He enlisted the help of the police to surveil Howard. After 10 days, Acquino knew that the police had not seen Howard at the complex. The surveillance continued for another two weeks, during which Howard received no reports that the police had spotted Howard at the complex. The complex manager told Acquino that he had not seen Howard for at least a week and a half.

Acquino then secured an order from the probation department to search Apartment 49, and arranged to meet officers there. Upon arriving, Acquino saw Howard’s car parked below the apartment at around 6:30 a.m. He later saw Howard come out of the door with no shirt on and stretch for about 15 minutes, then go back inside.

Howard and Barner eventually left the apartment, going in different directions. Both were confronted by officers. Barner said that Howard did not live there, and did not have a key. She refused to consent to a search. Howard admitted that he had stayed there before, but denied living there, or having a key.

After Barner was allowed to leave, the police tried Howard’s keys to see if any fit the lock. None did.

The owner of the apartment, who rented it to Barner, offered to let the police in with his keys. At about the same time, another resident of the complex said that he had seen Howard there at least 80 percent of the time.

The owner let the police in. They found a gun wrapped in a towel in a closet. Howard admitted it was his. The only other items they found belonging to Howard were a business card and a prescription.

After he was indicted, Howard challenged the constitutionality of the search and his statements made afterward. When the district court ruled against him, he entered a guilty plea, reserving his right to appeal the court’s ruling on the validity of the search.

Bybee noted that in cases where it was found that police had probable cause to believe that a parolee was residing at the searched residence, the parolee did not appear to be residing at any other address the officers had directly observed something that gave them good reason to believe the parolee was using the residence and the parolee had a key to the residence.

“None of these commonalities is presented by the facts of this case,” Bybee said.

Senior U.S. District Judge William Schwarzer of the Northern District of California, sitting by designation, concurred in the opinion. Senior Judge John T. Noonan, concurring “dubitante”—with doubts—said the result was consistent with circuit precedent but questionable policy.

“That the Fourth Amendment should not offer special sanctuary to felons serving part of their sentence is an outcome not to be regretted,” he wrote.

The case is United States v. Howard, 05-10469.


Copyright 2006, Metropolitan News Company