Page 1
Judges Decry Case Law on Searches of Probationers’ ‘Homes’
Two Jurists Urge En Banc Ninth Circuit Panel to Take on Rule Requiring Probable Cause That Defendant Lives at Residence, Saying Precedent Allows for Creation of ‘Safe Houses’ Free From Supervision
By Kimber Cooley, associate editor
Two Ninth U.S. Circuit Court of Appeal jurists yesterday called for a “revisiting” of governing case law requiring that officers have probable cause to believe that a parolee or probationer, who agreed to warrantless inspections as a condition of release, actually lives at the target property before a search is conducted, saying that the rule allows those under supervision to create “safe houses” in which they can conduct criminal activities free from government oversight.
Senior Circuit Judge J. Clifford Wallace called in a concurring opinion for the rethinking of the circuit’s governing precedent. The court’s decision upholding a denial of a motion to suppress evidence by a probationer who agreed to warrantless searches was unanimous.
Wallace wrote:
“I join the court’s opinion in full. I write separately to state specifically my reasons why our cases in this area should be revisited. As they stand, these cases stretch the Fourth Amendment to provide individuals on supervised release, probationers, and parolees safe houses in which to recidivate free from the oversight to which they agreed.”
Circuit Judge Patrick Bumatay wrote the opinion for the court and joined in Wallace’s concurrence. Senior Circuit Judge Susan P. Graber disagreed with her colleagues as to the soundness of the rule, writing separately to say that “[t]he solution to my colleagues’ concern lies with state legislatures and state courts” which can choose to impose broader search conditions.
Community Supervision
The topic arose after Los Angeles Police Department Officer Giovanni Espinoza was assigned to investigate an anonymous tip, made in November 2018, that a man named “Ryan” was selling drugs out of a Van Nuys apartment located on Emelita Avenue.
Espinoza conducted surveillance of the area and saw Ryan Barry, who was on post-release community supervision for felony firearm and drug convictions, near the building and getting into a car that matched information provided by the tipster. Barry’s terms of supervision included a warrantless search condition, and the supervisee had given a different home address to his probation officer.
After Barry drove from the building to a nearby gas station, Espinoza contacted him and searched the vehicle. He found suspected methamphetamine and a key to the apartment unit’s front door.
Espinoza informed the suspect that officers were “going to search his apartment on Emelita Avenue next.” Barry said that his girlfriend was sleeping on the couch, which was confirmed when officers entered the home.
Inside the residence, they found firearms, drugs, ammunition, and other paraphernalia. Barry was charged with several counts of possession with the intent to distribute narcotics, in violation of 21 U.S.C. §841(a)(1), and related drug and firearm charges. District Court Judge Michael Fitzgerald of the Central District of California denied Barry’s motion to suppress the evidence found in his car and at the Emelita apartment.
The defendant entered a conditional plea, reserving the right to appeal the suppression motion, and was sentenced to 15 years in prison.
Grandberry Case
Yesterday’s opinion affirms the denial of Barry’s motion to suppress. The defendant cited the 2013 Ninth Circuit decision in U.S. v. Grandberry which held that, under California law, a search-condition exception to the general rule that warrantless searches are unreasonable under the Fourth Amendment only applies if officers have probable cause to believe that the probationer or parolee is a resident of the home to be searched.
In that case, a search following an anonymous tip that “someone was selling crack cocaine out of a garage” was found to be unlawful. In yesterday’s opinion, Bumatay distinguished the case, saying:
“Here, officers gathered more facts supporting their reasonable belief that Barry resided at the Emelita apartment. We thus conclude that officers had probable cause to search the Emelita apartment, and we affirm the denial of the motion to suppress.” Then-Circuit Judge Paul J. Watford (now in private practice) wrote a concurring opinion in the Grandberry case, expressing concern that case law in this area “is unsound and warrants reexamination.”
Wallace cited this concurrence and said that “[u]nfortunately, our court has not heeded…Judge Watford’s clarion calls, and this line of problematic cases persists.”
Balancing of Interests
He wrote:
“Programs such as supervised release, probation, and parole, which reduce a criminal’s length of incarceration, are important tools for successfully rehabilitating criminals and reintegrating them into society as productive citizens while balancing the need for public safety….But a lesser prison sentence or avoiding incarceration all together comes with a cost. Indeed, when entering such a program in California, a person consents ‘to warrantless searches and seizures in exchange for the opportunity to avoid serving a state prison term.’ ”
The jurist continued:
“The practical effect of our probable-cause-as-to residence rule and cases like Grandberry is, as two of my former colleagues have aptly put it, to create ‘safe house[s]’ for recidivists to hide their renewed illicit activities from supervising law enforcement, frustrating the public safety goals of such programs.”
Noting that the concept of standing in Fourth Amendment cases typically prohibits a defendant from challenging a search of someone else’s home, he said “the probable-cause-as-to-residence rule creates tension” with this principle. He explained:
“Someone like Barry, who typically would have standing to challenge a search of his residence, knowingly relinquished that expectation of privacy when he agreed to the terms of his post-release community supervision. Given that Barry generally lacks standing to challenge the search of others’ residences, it appears that law enforcement would be free to conduct a search related to Barry in any residence, provided that they comply with the relevant statutory provisions. No, says Grandberry, because Barry may have standing as an overnight guest in the residence of another….That does not make sense.”
Expansion of Doctrine
Wallace also took issue with the court having expanded the doctrine to cars, such that officers must have probable cause to believe a vehicle belongs to the supervisee before searching it, and argued:
“The answer…has been that the probable-cause-as-to residence (or car ownership) rule is required to protect the privacy of third parties….That reasoning could be applied to every search—doing away with Fourth Amendment standing would undoubtedly better protect the privacy rights of third parties.”
Wallace pointed out that “California courts have expressly rejected our probable cause-as-to residence rule,” adopting instead a rule requiring only “reasonable belief” of a defendant’s residency, a lower threshold. The judge declared:
“Keeping in mind that ‘[t]he touchstone of the Fourth Amendment is reasonableness,’…most would think that individuals like Barry relinquished any expectation of privacy in whatever abode they spend their time….Our strict probable cause requirement appears to me unreasonable and unrequired by the Fourth Amendment. I hope our court soon takes the appropriate case en banc to revisit this important issue and consider whether a lesser showing than probable cause would better serve society’s compelling goals in the successful supervision of individuals like Barry.”
The case is U.S. v. Barry, 23-2101.
Copyright 2025, Metropolitan News Company