Case o’ The Week: Ninth Directs Howard’s End (be reversed; appellate win)

Over a "concurrence dubitante" by Judge Noonan (left), the Ninth articulates a good Fourth Amendment analysis for probationers, parolees, and supervised releasees (?) in United States v. Curtis Ray Howard, __ F.3d __, 06 Daily Cal. Op. Serv. 5787 (9th Cir. May 25, 2006), opinion available here.

Players: Nice victory by Nevada AFPD Shari L. Kaufman.

Facts: Howard was on supervised release for bank robbery. Id. at 5791. One condition was a "warrantless search of his residence, person, property, and automobile." Id. at 796. Howard’s new girlfriend was a seven-time felon and recovering cocaine addict. Id. at 5791. Unmoved by this blooming romance, the PO prohibited the relationship. Id. A CI then called the PO, claiming Howard had a gun in the girlfriend’s apartment. Id. The PO enlisted cops and began weeks of surveillance. Id. at 5792. Despite these efforts, the showing that Howard actually lived at the girlfriend’s place was spotty. Undeterred, the PO and cops invoked the search condition, searched the girlfriend’s home, and found a gun. Id. at 5796.

Issue(s): "Howard appeals the district court’s ruling that the search of an apartment at which he had spent the night was constitutional because he was on probation and officers had probable cause to believe that he resided there." Id. at 5790 (emphasis added).

Held: "We hold that the evidence in this case was insufficient to establish probable cause and reverse the ruling of the district court." Id. "We . . . hold that the police do not have probable cause to believe that a parolee lives at an unreported residence when: (1) visits to the parolee’s reported address suggested that the parolee continued to reside there; (2) the police watched the address in question for a month and did not see the parolee there; (3) no credible witnesses had seen the parolee at the address in question for some time before the search; (4) the parolee did not have a key to the residence in question; and (5) neither the parolee nor his purported co-resident admitted to his residence there." Id. at 5807.

Of Note: Howard is a well-written opinion. Judge Bybee’s survey of Ninth precedent is exhaustive, and he carefully culls PC factors and applies these factors to Howard’s facts. Id. at 5798-806. It will be the lead case on the issue in the Ninth, and probably in other circuits as well – if it survives.

Judge Noonan counters with a "concurrence dubitante," and an unsubtle plea for the Supremes to mull over the Ninth’s rule after Knights. Id. at 5808. Noonan’s plea probably won’t go far, although the Ninth’s rules on probation searches are not popular among the Nine.

It is also interesting that although Howard was on supervised release, Bybee refers to a "parolee" when articulating the PC factors. See id. at 5807. Does it make a difference? Who knows, but it’s something to snag if the government tries to distinguish Howard in a parole case. For Bybee, at least, probation, parole, and supervised release seem interchangeable for this analysis.

How to Use: Here are the "commonalities" (aka, "factors") that a court will use on the PC issue after Howard: 1. Does the parolee appear to be residing at an address other than the one searched? Id. at 5803. 2. Did an officer directly observe something that gave them good reason to suspect the parolee was using the residence as a home base? Id. at 5803-04. 3. Did the parolee have a key to the residence? Id. at 5804. 4. Did the parolee – or a co-resident – identify the place as the residence of the parolee? Id. at 5804.

For Further Reading: What is "concurrence dubitante?" Dubitante: ['dü-bi-'tan-te, 'dyü-, -'tän-] Latin, ablative singular masculine of dubitans, present participle of dubitare to doubt: having doubts (used of a judge who expresses doubt about but does not dissent from a decision reached by a court).

It is a rare type of opinion, and it isn't entirely clear if a concurrence dubitante is a concurrence, or a dissent. See blog here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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