United States v. Lambert Grandberry

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50498 Plaintiff-Appellant, D.C. No. v. 2:10-cr-00262-SVW-

LAMBERT T. GRANDBERRY,

Defendant-Appellee. OPINION

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted February 14, 2013—Pasadena, California

Filed September 17, 2013

Before: Marsha S. Berzon and Paul J. Watford, Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Berzon; Concurrence by Judge Watford; Concurrence by Judge Berzon

* The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. SUMMARY**

Criminal Law

The panel affirmed the district court’s suppression of evidence found during a warrantless search of an apartment that the defendant, a parolee, had entered several times during the days preceding the search.

The panel rejected the government’s argument that this court’s precedent requiring that officers have probable…

concurring:

Do parolees have a greater expectation of privacy in someone else’s home than they have in their own home? I can’t think of any reason why they should. Yet that is the rule we established in United States v. Howard, 447 F.3d 1257 (9th Cir. 2006), which we, as a three judge panel, are bound to follow here. For the reasons the court explains, faithful application of Howard requires us to affirm the district court’s suppression ruling. But, like the district court, I think that decision is unsound and warrants reexamination.

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, 448 U.S. 98, 104-06 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 133-34 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978). A defendant may not vicariously assert the Fourth Amendment rights of others. Alderman v. United States, 394 U.S. 165, 174 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969). Thus, the Supreme Court has held, a defendant generally cannot seek suppression of evidence discovered during an illegal…

concurring:

I write separately to respond to Judge Watford’s suggestion that applying United States v. Howard, 447 F.3d 1257 (9th Cir. 2006), here permits a parolee to assert greater Fourth Amendment protection in someone else’s home than in his own and is “unsound and warrants reexamination.” Cone, at 983.

In my view, our outcome is compelled not solely by Howard , but also by the text of Grandberry’s parole search conditions, which allow suspicionless 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…

Opinion 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 *971 sion to suppress evidence de novo, and its factual findings supporting that decision for clear error. See United States v. Song Ja Cha, 597 F.3d 995, 999 (9th Cir.2010). For the reasons that follow, we affirm.

I.

In January 2010, Los Angeles Police Department…