U.S. v. Howard

• Citation: 447 F.3d 1257
• Decision Date: 25 May 2006
• Docket Number: No. 05-10469.,05-10469.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Curtis Ray HOWARD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

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:

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

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 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 Howard. Barner was a seven-time convicted felon, was on state probation, and was recovering from an addiction to cocaine. Since the conditions of Howard's supervised release prevented him from associating with known felons and Aquino and his supervisor determined that the relationship was not conducive to Howard's rehabilitation, he informed Barner and Howard that they would have to terminate their relationship. Howard agreed that he would terminate his relationship with Barner.

On February 3, 2004, a confidential informant ("CI") called Aquino. The CI identified himself or herself, claimed to know Howard, and told Aquino that Howard was staying at an apartment on 2221 West Bonanza and that Howard had a firearm hidden there. Tammi Barner had previously told Aquino that she lived at 2221 West Bonanza in apartment 49. However, there are well over a hundred apartments in the West Bonanza complex, spread over three buildings; the CI did not know in which apartment, or even in which building, the gun was hidden. The CI also stated that he or she had not seen Howard for at least two weeks, and denied having any motive to lie. Aquino drove out to investigate at eight o'clock that evening, but he did not observe Howard's car at either the East Owens or the West Bonanza residence. The CI also mentioned a local tavern where the CI claimed Howard had spent time. Aquino drove by the tavern the following day, but did not see Howard's car there. Aquino did not otherwise attempt to verify the CI's information with anyone else.

The day after he received the CI's call, Aquino returned to the 2221 West Bonanza apartment complex and spoke with Bob, a manager there. Aquino showed Bob a picture of Howard, and Bob confirmed that he had seen Howard in the complex before. He also stated that he had seen a vehicle parked in the complex that matched the description of Howard's vehicle. Manager Bob directed Aquino to speak with Curtis Sanders, the president of the complex's condominium owner's association.² Officer Aquino then spoke to Mr. Sanders, who confirmed that he had also seen Howard in the apartment complex. Mr. Sanders also suggested that Howard had been there visiting Tammi Barner. Aquino then spoke by phone with Jim Jacobs, the owner of Barner's condominium. Jacobs confirmed that Tammi Barner was the legal occupant of apartment 49, and that he had contact with someone who, based on Aquino's description over the phone, might have been Howard.

Aquino was now concerned that Howard was not abiding by the terms of his supervised release, and that he might be using the West Bonanza residence, which Howard had not reported to Aquino, to engage in criminal activity. This concern was heightened by the fact that, during the course of his supervision, Aquino made ten visits to Howard at his East Owens address at early morning hours and only found him there twice. Aquino had chosen to make early morning visits because, based on his knowledge of Howard's work schedule, he concluded that this was the time at which Aquino was most likely to find Howard in his home.

Prior to receiving the tip from the CI, however, Aquino had not been concerned that Howard was living elsewhere. Aquino knew that a high percentage of his visits to his supervises were unsuccessful, and Aquino had seen Howard at the East Owens residence on his most recent surprise visit. At that time, the residence appeared as if Howard was still living there; there were pictures on the walls and there were clothes and furniture in the house. Aquino also knew that one reason he might not have seen Howard more frequently on his surprise visits was because Howard's work schedule was subject to change, and that Howard was not obligated to report changes in his work schedule to him. Moreover, on three of Aquino's attempted visits to Howard at the East Owens residence, Aquino had spoken with one of Howard's neighbors, who confirmed that Howard was still living there. On one occasion, the neighbor told Aquino that he had just missed Howard; another time, he said that Howard was a very quiet guy.

After his visit to the West Bonanza complex, Aquino contacted local police to determine whether Howard was the subject of any investigations. Because Howard's file indicated that he was previously a member of the Bloods gang, Aquino spoke to the Las Vegas Metropolitan Police Department Gang Unit ("Gang Unit"). He also contacted the Repeat Offender Enforcement Squad. Neither group had any further investigations against Howard or information about his activities, but both groups said they would contact Aquino if they received any information implicating Howard's involvement in criminal activity. An officer with the Gang Unit later called Aquino to inform him that a reliable confidential juvenile informant had reported that Howard was a gun dealer and that he might possibly be among the leaders of the West Coast Bloods.

On February 7, 2004, the CI called Aquino again at approximately 4:30 a.m. and informed him that Howard's vehicle was at the West Bonanza address. Aquino then drove to the West Bonanza address and observed Howard's vehicle there at roughly 5:00 a.m., parked in the lot right below apartment 49.

Meanwhile, in response to the information that Aquino had received from the Gang Unit, he enlisted the help of other law enforcement to surveil Howard, both at the West Bonanza residence and at the East Owens residence. Surveillance began on February 10; as of February 20, Aquino affirmatively knew that police had not seen Howard at the West Bonanza residence. Surveillance continued for roughly two weeks, until roughly March 8; Aquino did not receive any reports from the surveilling officers stating that Howard had been observed at the West Bonanza residence at this time, but he did not know for certain whether Howard had been observed there. On March 17th, Aquino returned to the leasing office at West Bonanza to ask whether the leasing agent had seen Howard in the complex. The agent told Aquino that he had not seen Howard there in at least a week and a half.

Aquino then secured an order from the probation department to search both the West Bonanza and the East Owens residences. He arrived at the East Owens complex at 6:00 a.m. on March 30, more than seven weeks after surveillance began, but he did not see Howard's car in the parking lot. He then proceeded to the West Bonanza complex, where he observed Howard's car parked below Barner's apartment at roughly 6:30 a.m. Aquino remained in his car and watched the West Bonanza apartment until the rest of the search team arrived, which was between 7:45 and 8:00 a.m. While Aquino watched the apartment, he saw Howard come out and stand in the doorway with no shirt on. Howard stood in the doorway and stretched for approximately ten or fifteen minutes, then returned to the apartment, shutting the door behind him.

Howard and Barner subsequently left the West Bonanza apartment and began walking in different directions. After they had separated, Aquino and another member of the search team confronted Barner, while other officers detained Howard. The officers told Barner that they were going to conduct a search of her apartment based on Howard's presence there. Barner stated that Howard did not live in the West Bonanza residence and that he did not have a key, and she refused to consent to a search of the apartment. Aquino and the other officer then brought Barner over to where Howard was being held. En route, Barner continued to insist that Howard did not live at the West Bonanza apartment, but acknowledged that he had a few personal belongings, such as some clothing, in her apartment.

Meanwhile, out of concern for officer safety, Howard had been handcuffed by other members of the search team, who had also read him his Miranda rights. Aquino informed Howard that the West Bonanza apartment was going to be searched. Howard admitted that he had stayed at the West Bonanza apartment before, but denied living there and told officers that he did not have...