United States v. Curtis Ray Howard

Appellant Curtis 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. We hold that the evidence in this case was insufficient to establish probable cause and reverse the ruling of the district court.

I. BACKGROUND

Curtis Ray Howard was convicted of bank robbery in 1996. On April 14, 2003, he was placed on supervised release, and Probation Officer Robert Aquino was assigned to monitor him. Howard’s release was subject to a number of conditions, including a search clause allowing the “warrantless search of his residence, person, property, and automobile” at any time to ensure that he was complying with the conditions of his supervised release and *1259 that he “not associate with any persons engaged in criminal activity ... or convicted of a felony.” Howard reported to Aquino that his current residence was at 4879 East Owens in Las Vegas.

Howard met Tammi Barner on a bus, and the two started having a relationship. On May 14, 2003, Barner met with Aquino to request permission to continue her relationship with…

concurring, dubitante:

“In sum, we hold that before conducting a warrantless search pursuant to a parolee’s parole condition, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir.2005) (en banc). Applying this standard with the help of five cases where we found probable cause “but just barely,” the majority concludes that probable cause was lacking here. I cannot deny the controlling standard set by Motley and the pattern of what constitutes probable cause are not unreasonably presented. Bound by circuit precedent, I cannot suppress a doubt that circuit precedent conforms with the constitution as interpreted by the United States Supreme Court.

As recently as 2000, this circuit distinguished between “probationary searches” and “investigative searches” directed at uncovering evidence of criminal activity by a felon on probation. In United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001), this distinction was held to be without foundation. Id. at 122 , 122 S.Ct. 587 . The Supreme Court analyzed the search of the probationer’s premises in terms…

447 F.3d 1257 UNITED STATES of America, Plaintiff-Appellee, v. Curtis Ray HOWARD, Defendant-Appellant. No. 05-10469. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 3, 2006. Filed May 25, 2006. Franny A. Forsman, Federal Public Defender, Las Vegas, NV, and Shari L. Kaufman, Las Vegas, NV, for the defendant-appellant. Daniel G. Bogden, United States Attorney, Karyn Kenny and Christina Brown, Assistant United States Attorneys, Las Vegas, NV, for the plaintiff-appellee. Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CR-04-00190-PMP. Before: NOONAN and BYBEE, Circuit Judges, and SCHWARZER, * District Judge. BYBEE, Circuit Judge: 1 Appellant Curtis 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. We hold that the evidence in this case was insufficient to establish probable cause and reverse the ruling of the district court. 1 I. BACKGROUND 2 Curtis Ray Howard was convicted of bank robbery in 1996. On April 14, 2003,…