United States v. Steven Vasquez

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 25, 2018
• Docket: 17-50035
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 25 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50035

Plaintiff-Appellant, D.C. No. 2:16-cr-00022-DMG-1 v.

STEVEN VASQUEZ, AKA Debo, AKA MEMORANDUM* Devo, AKA Steve-O, AKA Steven Vazquez,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Argued and Submitted July 9, 2018 Pasadena, California

Before: BERZON and N.R. SMITH, Circuit Judges, and NYE,** District Judge.

The government appeals the district court’s suppression of evidence

obtained through a warrantless apartment search. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David C. Nye, United States District Judge for the District of Idaho, sitting by designation. The district court correctly concluded that there was no probable cause to

believe that defendant Steven Vasquez, a California probationer, lived at the

searched apartment (“Apartment 26”). Considered in combination, the facts

identified by the government did not establish a “fair probability” that Vasquez

lived in Apartment 26. Florida v. Harris, 568 U.S. 237, 244 (2013) (internal

quotation marks omitted); see United States v. Grandberry, 730 F.3d 968, 975–76

(9th Cir. 2013).

First, an officer’s sighting of Vasquez in front of the apartment complex four

months before the search was a slim indication that Vasquez might have been

living in the building at the time he was seen, and essentially none that he was

living in Apartment 26 four months later.

Second, even assuming the searching officer had complete knowledge of

Vasquez’s supervision history notes (which is not clear from the record), those

notes showed that Vasquez was found at his reported address once; that no one was

at the reported address on two visits; that, during two other visits to the address, the

probation officers were told that Vasquez was not in—not that he did not live

there; and that when messages were then left for Vasquez at that residence, he

promptly responded to them. The probation supervision notes did not show the

time of day of the visits—for example, whether they occurred during times

2 Vasquez was likely to be at home—or whether the probation officer observed any

physical indications that Vasquez did or did not live in his reported room.1 On

these facts, the probation officers’ failure to find Vasquez at home in six out of

seven visits to his reported address provided scant support for the conclusion that

he lived elsewhere, considerably less than that in other cases concerning failed

attempts to locate a probationer or parolee at his reported residence. See United

States v. Watts, 67 F.3d 790, 795–96 (9th Cir. 1995), rev’d on other grounds, 519

U.S. 148 (1997); United States v. Conway, 122 F.3d 841, 842–43 (9th Cir. 1997).

Further, what had to be shown here was probable cause as to where Vasquez

did live, not as to where he did not live. The scant evidence regarding his reported

residence was for that reason as well tangential to establishing that Vasquez did

live in the apartment searched.

1 At argument, the government briefly suggested that we should consider additional evidence concerning Vasquez’s reported residence under the “collective knowledge doctrine.” See United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005). The government did not make such an argument before the district court or in its opening brief before us. The argument is therefore forfeited. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

3 Third, because the confidential informant relied upon by the government met

at most two of the four factors concerning informant reliability, his tip provided at

most some suspicion—not probable cause—as to Vasquez’s residence. See United

States v. Rowland, 464 F.3d 899, 907–08 (9th Cir. 2006). Although the informant

did not report the tip anonymously, the government did not provide evidence that

the informant had ever worked with law enforcement before or that he had

otherwise provided reliable information. Although some basis of the informant’s

knowledge as to where Vasquez lived could be gleaned from his shared gang

membership with Vasquez and the fact that he lived “very close” to the searched

apartment building, no part of the tip had been corroborated before the search was

performed.

Finally, even if we disregard Vasquez’s Fourth Amendment challenge to the

opening of the doors to Apartment 26 and so consider the presence of Vasquez and

a woman in the apartment, the woman’s statement that she was in Apartment 26

“only to visit” Vasquez said very little about whether Vasquez resided there. See

Grandberry, 730 F.3d at 977. Likewise, that Vasquez was inside the apartment

demonstrated some connection to the apartment, but not whether he was a resident

or a guest. Nothing about the initial encounter—anything he said or did—pointed

in one direction or the other.

4 Also significant is what the evidence did not show. Unlike in cases in which

probable cause as to a probationer’s or parolee’s residence was found, nothing the

officers observed before going to the apartment confirmed that Apartment 26 was

Vasquez’s “‘home base.’” Grandberry, 730 F.3d at 976 (quoting United States v.

Howard, 447 F.3d 1257, 1265–66 (9th Cir. 2006)); see United States v. Dally, 606

F.2d 861, 862–63 (9th Cir. 1979); United States v. Franklin, 603 F.3d 652, 656

(9th Cir. 2010); Conway, 122 F.3d at 843. They did not, for instance, see Vasquez

take out the garbage, bring in groceries, do laundry, use a key to enter the

apartment, drive up late at night, leave early in the morning, receive mail—or,

indeed, do any activity suggesting he resided there. Grandberry, 730 F.3d at 979.

The absence of such observations detracts from the officers’ already extremely thin

information linking Apartment 26 as Vasquez’s “home base.” Id. at 976 (internal

quotation marks omitted).

Probable cause “is not a high bar”; “[i]t requires only the kind of fair

probability on which reasonable and prudent people, not legal technicians, act.”

Kaley v. United States, 134 S.Ct. 1090, 1103 (2014) (internal quotation marks

omitted). Here, however, the very few indications that Vasquez might have been

living in Apartment 26, taken together, simply do not meet that threshold.

AFFIRMED.