By Robert Phillips, Deputy District Attorney (ret.)  

Legal Issues and Case Law

• Probation Fourth Amendment wavier searches of a residence 
• Probable cause to believe a probationer lives at the residence being searched 
• A federal evidentiary hearing on a motion to suppress 
• Probable cause vs. reasonable suspicion standard of proof 

Rule: For a warrantless probation search of a probationer’s residence to be lawful, it is required that officers have probable cause to believe that the probationer lives there. An evidentiary hearing on a motion to suppress in federal court is not required absent a showing that contested issues of fact exist.  

Note: Some authorities argue that the “reasonable suspicion” standard, rather than “probable cause,” is the correct standard of proof. 

Facts: In Nov. 2018, an anonymous tipster reported to the Los Angeles Police Department that a person named Ryan was selling drugs out of 14436 Emelita Ave., Apartment B, in Van Nuys. The tipster also reported that Ryan drove a red convertible Ford Mustang. LAPD Officer Giovanni Espinoza was assigned to investigate the tip. By researching law enforcement databases, Officer Espinoza determined that a subject named Ryan Beau Patrick Barry, the eventual defendant in this case, was subject to post-release community supervision stemming from felony firearm and drug convictions. Pursuant to the terms of his supervision, Barry had waived his Fourth Amendment rights, making him subject to the warrantless search of his person, property and residence. However, Officer Espinoza also found that Barry had listed a different residential address with his probation officer than the Emelita apartment. It was further discovered that Barry did not possess a valid driver’s license and that it was illegal for him to be driving a motor vehicle at the time.  

Intent on determining whether Barry was the “Ryan” referred to by the tipster, Officer Espinoza checked out the Emelita apartment. He observed a red convertible Mustang parked close to a walkway that led to the apartment. As Officer Espinoza watched the Mustang, Barry appeared in the walkway and got into the car. Officer Espinoza followed Barry as he drove to a nearby gas station, where the officer observed him park and sit for five to 10 minutes. Officer Espinoza approached Barry and identified himself as a police officer. As he did so, Officer Espinoza directed Barry to step out of his car. As Barry got out of the Mustang, Officer Espinoza observed that he was holding a clear plastic baggie that, as Officer Espinoza later testified, was consistent with drug packaging. It was determined that it contained a substance resembling methamphetamine.  

Officer Espinoza immediately handcuffed Barry. A search of Barry’s car revealed several pouches of illegal drugs, a scale with drug residue and a loaded pistol. During this time, Officer Espinosa told Barry that they were “going to search his apartment on Emelita Avenue next.” Barry did not act surprised, nor did he deny that he lived at that location. Upon being asked who else lived there, Barry replied that his girlfriend did. Barry explained that his girlfriend was asleep on the couch and repeatedly asked Officer Espinoza not to scare her when entering the apartment. Officer Espinoza asked whether there were dogs or weapons at the Emelita apartment. Barry stated that there were not. Finally, to avoid damaging the door, Officer Espinoza asked Barry for a key to the apartment. Barry told Officer Espinoza where his keychain was and showed him the key to the apartment’s front door. From there, they went to the apartment, where his girlfriend was found to be asleep on the couch.  

At the apartment, additional firearms, ammunition, drugs, and related paraphernalia were recovered. After the search, Barry told Officer Espinoza that he had lived at the Emelita apartment with his girlfriend for around one month and admitted to selling drugs out of that residence. Barry was charged in federal court with possession with intent to distribute drugs, pursuant to 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of drug trafficking, per 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in possession of firearms and ammunition, per 18 U.S.C. § 922(g).  

Barry filed a motion to suppress, arguing that all the drugs and firearms were discovered as the result of a Fourth Amendment violation. The federal district (trial) court denied his motion on the pleadings while also denying him an evidentiary hearing. In a negotiated guilty plea, Barry was sentenced to 15 years in federal prison. He appealed. 

Held: The Ninth Circuit Court of Appeals affirmed. On appeal, Barry did not challenge the search of his Mustang. Aside from challenging the trial court’s denial of his request for an evidentiary hearing (see (2) below), the primary issue was the legality of the search of Barry’s apartment. On this issue, Barry argued that the officers did not have sufficient probable cause to believe he lived there.  

(1) Probable Cause to Search the Apartment: Barry’s argument that Officer Espinoza did not have sufficient probable cause to search his apartment, absent more proof that he lived there, was based upon the Ninth Circuit’s prior case decision in United States v. Grandberry (9th Cir. 2013) 730 F.3rd 968. In Grandberry, the defendant was on parole with search conditions. Officers received an anonymous tip that “someone was selling crack cocaine out of a garage.” Based on this information, officers began surveilling the area of the garage. During this surveillance, officers observed Grandberry conduct an apparent drug deal. From there, the officers followed him to a nearby apartment about two blocks away. Watching Grandberry in front of the apartment building, officers observed him engage in additional conduct suggestive of drug dealing. Further investigation in the ensuing 11 days yielded minimal additional information. So the officers returned to the same apartment to arrest him.  

Finding him in front of the apartment, he was arrested. Upon taking him into custody, and while assuming that he lived in the apartment that he was standing in front of at that time, an officer told him: “You are on parole with search conditions. We are going to search your place now.” Grandberry’s only response was “Do what you gotta do.” The officers then conducted a warrantless entry and search of the apartment where they assumed he lived, discovering drugs and a loaded firearm.  

The issue on appeal was whether there was sufficient probable cause to believe that the apartment searched was in fact Grandberry’s apartment. The Ninth Circuit ultimately held that because the officers did not have sufficient probable cause to believe that Grandberry lived in the apartment that was searched, the evidence should have been suppressed.  

Pursuant to authority from the Ninth Circuit, the court found the law to be well-settled: The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  

As a general rule, warrantless searches are unreasonable under the Fourth Amendment “subject only to a few specifically established and well delineated exceptions.” (United States v. Estrella (9th Cir. 2023) 69 F.4th 958, 964.) One such exception is the “search of a parolee (or a probationer who has waived his Fourth Amendment rights) that complies with the terms of a valid search condition.” (United States v. Cervantes (9th Cir. 2017) 859 F.3rd 1175, 1183.)  

For the parolee-search-condition exception to apply, “law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” (Italics added; United States v. Grandberry, supra, at pg. 973.) “[P]robable cause as to residence exists if an officer of reasonable caution would believe, based on the totality of the circumstances, that the parolee lives at a particular residence.” (Id., at 975.) Probable cause “is not a high bar.”(Kaley v. United States (2014) 571 U.S. 320, 338.) “It requires only the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” (Ibid.)  

Barry’s argument in this case, as it was in the Grandberry case, was that the officer did not have sufficient probable cause to believe that the apartment searched was where he lived. The Ninth Circuit set out four non-exclusive factors to consider in its Grandberry decision when determining whether a parolee (or a Fourth-waiver probationer) lives at a particular residence: (1) (T)he parolee did not appear to be residing at any address other than the one searched; (2) the officers had directly observed something that gave them good reason to suspect that the parolee was using his unreported residence as his home base; (3) the parolee had a key to the residence in question; and (4) either the parolee’s co-resident or the parolee himself identified the residence in question as that of the parolee.”  

As noted, the Ninth Circuit ruled in Grandberry that there was insufficient evidence to establish the necessary probable cause to believe that the apartment searched was his apartment. But the circumstances of every case are likely to be different. In Barry’s situation, when Officer Espinoza informed him that officers would search “his apartment on Emelita Avenue,” Barry didn't express any surprise or deny living there. Upon asking Barry, “who else lived” at the Emelita apartment, Barry did not deny that that it was his apartment, but simply answered that his girlfriend lived there and that she was asleep there at the time, repeatedly asking the officer not to scare her upon making entry.  

Barry then showed intimate familiarity with the residence, offering that no dogs were present in the apartment. Most importantly, Barry supplied the key to the apartment when asked for it. All of this corroborated the anonymous tipster’s information that closely tied Barry to the Emelita apartment, who identified a person named “Ryan” as the resident, who drove a red convertible Mustang, and who sold drugs directly out of the Emelita apartment.  

Based upon all this, the Court had no trouble finding that Officer Espinoza had sufficient probable cause to believe that the apartment searched was Barry’s apartment.  

(2) An Evidentiary Hearing: As a secondary issue, Barry complained on appeal that the trial court failed to hold an evidentiary hearing on the probable cause issue. The Ninth Circuit, however, held that an evidentiary hearing was not required under the circumstances of this case. In federal court: “An evidentiary hearing is necessary only ‘when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.’” (Italics added; United States v. Howell (9th Cir. 2000) 231 F.3rd 615, 620.)  

In this case, other than a few minor inconsistencies, there were no such “contested issues of fact.” Specifically, Barry did not contest any of the facts leading up to his arrest and the search of his apartment, but only that from a pure legal standpoint, there was insufficient probable cause to search his apartment. Any alleged “inconsistencies” were, by themselves, irrelevant to the final determination of probable cause, and insufficient to require a different conclusion. Therefore, calling upon the trial court to do no more than make a legal determination based upon facts to which the parties have agreed does not require an evidentiary hearing.  

Note: In considering whether there was sufficient probable cause to believe Barry lived in the apartment that was searched, all of this could have been avoided by simply confirming with him outright that he lived there rather than just assuming that he did. Had the officer done this, both in this case and in Grandberry, there would have been no issue. If Barry denied that he lived there, other evidence to the contrary could have been sought.  

Also of importance in this case is the behind-the-scenes issue of what the correct legal standard should be: “probable cause” or merely a “reasonable suspicion.” On this issue, Justice Clifford Wallace’s concurring opinion should be considered, in which he noted that it’s possible the Ninth Circuit here, and has used for years, used the wrong standard of proof, i.e., that we should be talking about a mere “reasonable suspicion” rather than “probable cause.” There’s plenty of case law supporting the argument that only a reasonable suspicion is necessary.  

The Ninth Circuit itself started out with the proposition almost a half century ago that only a “reasonable belief” that a parolee lives at a particular residence is necessary to conduct a warrantless search of that residence. (United States v. Dally (9th Cir. 1979) 606 F.2nd 861, 863.) California adopted this standard, interpreting the term “reasonable belief” to mean a “reasonable suspicion.” (People v. Downey (2011) 198 Cal.App.4th 652, 657-662.) At least five other federal circuits that have discussed this issue have reached similar conclusions, the titles to which I can send you upon request.  

Wallace, in his concurring opinion, also noted that the Eighth Circuit just recently adopted the Ninth Circuit’s probable cause standard in United States v. Thabit (8th Cir. 2023) 56 F.4th 1145, 115, despite its earlier decisions to the contrary. (E.g., see United States v. Risse (8th Cir. 1996) 83 F.3rd 212, 216.)  

But then the Supreme Court of Arkansas expressly rejected the Eighth and Ninth Circuits’ reasoning on this issue and held that “law enforcement need only have a reasonable suspicion that the probationer is residing in the place to be searched for officers to execute a warrantless search pursuant to a residence-search waiver.” (Italics added; see State v. Bailey (Ark. 2024) 2024 Ark. 87; 687 S.W.3rd 819, 823.)   

The bottom line is that there are any number of conflicting ideas floating around among the appellate courts, state and federal, as to the correct standard of proof, thus prompting Judge Wallace to call upon the Ninth Circuit to reconsider this issue in an en banc (11-judge) decision and attempt to resolve the conflict.  

I might suggest that given the conflicting opinions throughout the country, that this is an issue better resolved by the U.S. Supreme Court. In the meantime, however, and recognizing that such a resolution is likely to be a long time in coming, it’s safer for officers to just go with the probable cause standard.