finding a search of parts of the home within 10 exclusive control of third-party not reasonable
How later courts described this case
- finding a search of parts of the home within 10 exclusive control of third-party not reasonable
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 ROBERT BARROCA, et al., Case No. 25-cv-00440-EMC
8 Plaintiffs,
ORDER GRANTING MOTIONS TO
9 v. DISMISS
10 HAYWARD AREA RECREATION AND
PARKS DISTRICT, et al., Docket Nos. 30, 35
11
Defendants.
12
13
14 I. INTRODUCTION
15 Plaintiffs Robert Barroca and Raelynn Gomes, both proceeding pro se, have filed a
16 complaint asserting eight claims against Hayward Area Recreation and Parks District (“HARD”);
17 HARD Park Rangers Ed Untalan, Dachineewan Oliver, and Hillary Fitzpatrick; retired HARD
18 employee Marco Hernandez; a John Doe civilian; Alameda County Sheriff’s Office spokeswoman
19 Tya Modeste; the Alameda County Sheriff’s Office (“ACSO”); and U.S. Probation Officers Razan
20 Ghishan and a Jane Doe officer.1
21 Now pending before the Court is Defendants Tya Modeste and ACSO’s motion to dismiss
22 Claim Seven, Dkt. No. 30, and Defendant Razan Ghishan’s motion to dismiss Claim Eight, Dkt.
23 No. 35. The Court hereby GRANTS both motions to dismiss.
24
25
26
27
1 II. SUMMARY OF CLAIMS AND PROCEDURAL BACKGROUND
2 Defendants Tya Modeste and ACSO move to dismiss Plaintiff Barroca’s seventh claim for
3 defamation against ASCO’s Spokeswoman Tya Modeste and ACSO wherein Plaintiff Barroca
4 claims that Ms. Modeste intentionally reported incorrect information about his criminal history to
5 seven different news sources (KRON, NBC, Alameda County Sheriff’s Office Facebook, KQED,
6 Hoodline, The Patch – Castro Valley, and California County News) to smear Barroca’s name.
7 Amend. Compl. at 40, Dkt. No. 12.
8 Defendant Razan Ghishan moves to dismiss Plaintiffs Barroca and Gomes’s eighth claim,
9 which alleges that U.S. probation officers Razan Ghishan and Jane Doe violated Plaintiffs’ Fourth
10 Amendment rights when they arrested Plaintiff Barroca in the backyard and entered and searched
11 Plaintiff Gomes’s Hayward house without probable cause. Id. at 27.
12
13 III. LEGAL STANDARD
14 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain
15 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
16 complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R.
17 Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s
18 decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v. Twombly, 550
19 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . . . suggest that the
20 claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th
21 Cir. 2014). The Court “accept[s] factual allegations in the complaint as true and construe[s] the
22 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire &
23 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not
24 simply recite the elements of a cause of action [and] must contain sufficient allegations of
25 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”
26 Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d
27 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads factual
1 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a
2 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
3 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
4
5 IV. DISCUSSION
6 A. Defendants Alameda County Sheriffs’ Department and Tya Modeste’s Motion to Dismiss
7 (Docket No. 30)
8 1. Alameda County Sheriff’s Department
9 i. California Government Code § 911.2
10 The California Tort Claims Act (“CTCA”), codified as California Government Code §
11 911.2, requires that “[a] claim relating to a cause of action [against public entities] . . . shall be
12 presented . . . not later than six months after the accrual of the cause of action.” Cal. Gov. Code §
13 911.2. This prerequisite is a mandatory condition precedent to filing suit and applies to state law
14 claims for damages asserted against public entities. Mangold v. California Public Utilities
15 Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995).
16 Plaintiff Barroca did not file a written claim for defamation with ACSO within 6 months of
17 accrual of the cause of action asserted herein – the entry and arrest on May 30, 2024; The CTCA
18 was not received by ACSO until May 22, 2025. Pl.’s Consol. Reply in Opp’n to Defs.’ Mot. to
19 Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) at 18, Dkt. No. 54. As a result, the claim is untimely
20 under Cal. Gov. Code § 911.2.
21
22
ii. California Government Code § 911.4
23
California Government Code § 911.4(b) provides that if a claim is not filed within 6
24
months of accrual of the cause of action, “a written application may be made to the public entity
25
for leave to present that claim . . . within a reasonable time not to exceed one year after the accrual
26
of the cause of action and shall state the reason for the delay in presenting the claim.” Cal. Gov.
27
Code § 911.4(b). If leave is granted by the entity, the claim may be timely filed even if it is not
1 within the normal 6-month period.
2 Although Plaintiff Barroca filed a tort claim with ACSO on May 22, 2025, Pl.’s Reply at
3 18, Dkt. No. 54, he did not file an application for leave to present a late claim. He cannot file for
4 leave now because it has been over one year since the accrual of Plaintiff’s cause of action.
5 Therefore, Plaintiff Barroca’s Claim 7 Fails to comply with Cal. Gov. Code § 911.2 and must be
6 dismissed with prejudice.
7
8 2. Defendant Tya Modeste
9 i. California Government Code § 950.2
10 Plaintiff alleges that Defendant Tya Modeste appeared on behalf of Defendant ACSO, as
11 ACSO’s spokeswoman, to smear Plaintiff’s name in a KQED article. Amend. Compl. at 39, Dkt.
12 No. 12. These alleged actions were taken in the course and scope of her employment with ACSO.
13 Id.
14 Under Cal. Gov. Code § 950.2, “a cause of action against a public employee . . . for injury
15 resulting from an act . . . in the scope of his employment as a public employee is barred if an
16 action against the employing public entity for such injury is barred under [the other sections of the
17 California Torts Claims Act].” Cal. Gov. Code § 950.2. Here, as noted above, Plaintiff Barroca
18 failed to timely file within 6 months a CTCA claim and thus Claim 7 against the ACSO is barred
19 as untimely under Cal. Gov. Code § 911.2. Under Cal. Gov. Code § 950.2, since the action
20 against the employing public entity (ACSO) is barred, the corresponding Claim 7 against
21 Defendant Tya Modeste is likewise barred.
22
23 ii. California Government Code § 950.4
24 There is a narrow exception provided by Cal. Gov. Code § 950.4 wherein “[a] cause of
25 action against a public employee . . . is not barred by Section 950.2 if the plaintiff . . . did not
26 know . . . within the period for the presentation of a claim to the employing public entity . .
27 .prescribed by Section 911.2 . . ., that the injury was caused by . . . the public entity or . . .
1 Code § 950.4.
2 This exception does not apply here. Plaintiff Barroca clearly knew that Ms. Modeste was
3 employed by Alameda County and acted in her official capacity; the amended complaint identifies
4 her as the spokesperson for the Alameda County Sheriff’s Office. Amend. Compl. at 38–40, Dkt.
5 No. 12. Nothing suggests Plaintiff Barroca was not aware she was an employee of the ACSO at
6 the time she made the challenged statements.
7 Accordingly, Plaintiff Barroca’s Claim 7 against Defendant Tya Modeste is barred under
8 the California Tort Claims Act pursuant to Cal. Gov. Code § 950.2.
9
10 B. Defendant Ghishan’s Motion to Dismiss (Docket No. 35)
11 Plaintiffs are asserting a Bivens claim alleging a Fourth Amendment violation by a U.S.
12 Probation Officer. Officer Razan Ghishan has been Plaintiff Barroca’s probation officer since
13 2022, and Barroca had provided Officer Ghishan with his Belmont address registered as his
14 probation address. Amend. Compl. at 17, Dkt. No. 12.
15 According to Officer Ghishan’s Motion to Dismiss, and the subject of the Court’s finding
16 of Plaintiff Barroca violating a term of his parole in the related Criminal Matter, “Plaintiff Barroca
17 stabbed a man in Meek Park in Hayward on the night of January 30, 2024” and stemming from the
18 victim’s description, HARD Rangers (Dachineewan Oliver according to Plaintiffs’ Amended
19 Complaint at page 19) told the ACSO Deputies “that they suspected Barroca was responsible for
20 the stabbing.” Mot. to Dismiss Amend. Compl. at 8, Dkt. No. 35. The ACSO deputies received
21 an arrest warrant and arrested Plaintiff Barroca on “May 16, 2024.” Id.
22 The next day, Officer Ghishan filed a Petition for Warrant for Person Under Supervision
23 which alleged amongst two other condition violations that “Barroca changed his address to the
24 Hayward residence without informing Probation . . . [based on] the Alameda County Sheriff’s
25 Office Incident Report #24-001486, which revealed Mr. Barocca is known by . . . (HARD)
26 Rangers [along with] prior law enforcement contacts with Mr. Barroca [to reside in] 16922
27 Harvard Avenue in Hayward, CA.” Criminal Matter Dkt. No. 983 at 3-4. This Court thereafter
1 supervision” and ordered issuance of a no-bail arrest warrant. Id. at 5.
2 On May 30, 2024, the U.S. Marshals arrested Barroca at Gomes’s residence. Defendant
3 Ghisan subsequently searched the property incident to that arrest. Amend. Compl. at 19, Dkt. No.
4 35. Plaintiffs allege that Ghishan had no legitimate reason to be at Gomes’s residence other than
5 based on the misinformation provided by Ranger Oliver and therefore no probable cause to search
6 the Hayward residence. Id.
7 Officer Ghishan explained that while surveilling Meek Estate Park on May 30, 2024 (the
8 day of the arrest), they “observed Barroca in the park at about 9:30 a.m.” Mot. to Dismiss Amend.
9 Compl. at 9, Dkt. No. 35. The surveillance concluded that none of the probation officers “saw
10 Barroca drive to the Harvard Avenue residence that morning” supporting “Barroca had stayed the
11 night at the Harvard Avenue residence and had been residing there.” Id. Following, the Deputy
12 Marshals called Plaintiff Barroca out of the Hayward residence, and he was arrested with
13 possession of a key to the front door. See Criminal Matter Dkt. No. 1020 ¶¶ 11-12. Officer
14 Ghishan concluded that “there was probable cause to believe on May 30, 2024 (as well as on May
15 17, 2024), that Barroca was residing at the Harvard Avenue residence . . . [and] decided to execute
16 a search of that residence” pursuant to Plaintiff Barroca’s search condition. Mot. to Dismiss
17 Amend. Compl. at 10, Dkt. No. 35.
18 Plaintiff Barroca concedes that his repeated absence from his Belmont address created a
19 “false impression that he was living elsewhere” for Officer Ghishan. Amend. Compl. at 25–26,
20 Dkt. No. 12. Plaintiff Barroca’s search condition applied to “any property under his . . . control”
21 which required him to “warn any residents that the premises may be subject to searches.”
22 Criminal Matter Dkt. No. 731 at 5. If his residence was at the Hayward residence, a search would
23 be permitted. Barroca disputes he resided there and that it was not constitutionally permissible to
24 search the Hayward residence.
25 Defendant Ghishan moves to dismiss Plaintiffs’ Fourth Amendment claims, arguing they
26 are barred by qualified immunity, and further, that this Court should not extend Bivens to a Fourth
27 Amendment claim against U.S. probation officers. The Court begins with Defendant Ghishan’s
1 1. Qualified Immunity
2 The Supreme Court established that “[q]ualified immunity attaches when an official’s
3 conduct does not violate clearly established statutory or constitutional rights of which a reasonable
4 person would have known.” Kisela v. Hughes, 584 U.S. 100, 104 (2018). Qualified “immunity
5 protects all but the plainly incompetent or those who knowingly violate the law.” Id. “Because
6 the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is
7 judged against the backdrop of the law at the time of the conduct.” Id. (internal quotation marks
8 omitted). For a plaintiff to overcome qualified immunity, “existing precedent must have placed
9 the statutory or constitutional question beyond debate.” Id. (internal quotation marks omitted).
10 “Defendants will not be immune if, on an objective basis, it is obvious that no reasonably
11 competent officer would have concluded [he were not violating Plaintiffs’ constitutional rights];
12 but if officers of reasonable competence could disagree on this issue, immunity should be
13 recognized.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
14 Plaintiffs allege Defendant Ghishan executed a search without probable cause or a search
15 warrant in violation of the Fourth Amendment. The Supreme Court has held that “the warrantless
16 search of [a probationer’s residence], supported by reasonable suspicion and authorized by a
17 condition of probation, was reasonable within the meaning of the Fourth Amendment.” United
18 States v. Knights, 534 U.S. 112, 122 (2001). Here, the condition of probation included that
19 Plaintiff Barroca “shall submit his/her person, residence, office, vehicle, or any property under
20 his/her control to a search,” which “shall be conducted by a United States Probation Officer at a
21 reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or
22 evidence of a violation of a condition of release.” Criminal Matter Dkt. No. 731. at 5.
23 “Both parolees and probationers ‘are on the ‘continuum’ of state-imposed punishments.’”
24 U.S. v. Franklin, 603 F.3d 652, 656 (9th Cir. 2010) (quoting Samson v. California, 547 U.S. 843,
25 850 (2006)). With regard to Plaintiff Barroca’s Fourth Amendment rights, the Supreme Court in
26 Knights explained that the right to privacy of individuals on probation is more limited:
27 Inherent in the very nature of probation is that probationers do not
enjoy the absolute liberty to which every citizen is entitled. Just as
freedoms, a court granting probation may impose reasonable
1 conditions that deprive the offender of some freedoms enjoyed by
law-abiding citizens. The judge who sentenced Knights to probation
2 determined that it was necessary to condition the probation on
Knights’s acceptance of the search provision. It was reasonable to
3 conclude that the search condition would further the two primary
goals of probation-rehabilitation and protecting society from future
4 criminal violations. The probation order clearly expressed the search
condition and Knights was unambiguously informed of it.
5 The probation condition thus significantly diminished Knights’s
reasonable expectation of privacy.
6
United States v. Knights, 534 U.S. 112, 119-20 (2001) (citations and quotations omitted). This
7
same diminishment of a right to privacy applies to third parties living with individuals on
8
probation, except to spaces that are exclusively within the third party’s control. See United States
9
v. Patterson, 276 F. Supp. 3d 994 (S.D. Cal. 2017) (finding a search of parts of the home within
10
exclusive control of third-party not reasonable). In Motley v. Parks, the Ninth Circuit made clear
11
that parole officers may conduct “warrantless search[s] pursuant to a parolee’s parole condition,”
12
even third-party residences, if there is “probable cause to believe that the parolee is a resident of
13
the house to be searched.” Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc),
14
overruled in part on other grounds by United States v. King, 687 F.3d 1189 (9th Cir. 2012) (per
15
curiam). In this case, both Plaintiffs were subject to warrantless searches of the Hayward
16
residence if there was probable cause to believe Barroca resided there.
17
Both Plaintiffs fail to allege any facts suggesting it was objectively unreasonable for
18
Officer Ghishan to believe she had probable cause to believe Barroca resided at the Hayward
19
residence. Probable cause requires “that the facts available to the officer would warrant a man of
20
reasonable caution in the belief” that the Hayward residence was Plaintiff Barroca’s residence at
21
the time. Texas v. Brown, 460 U.S. 730, 742 (1983). Even when viewing the facts in the light
22
most favorable to Plaintiffs, the record reflects ample evidence to support Officer Ghishan’s
23
search of what she believed was Plaintiff Barroca’s residence. Barroca was repeatedly absent
24
from his registered address in Belmont, prompting reasonable suspicion that he may have changed
25
residences without notifying probation. Amend. Compl. at 25–26, Dkt. No. 12. Plaintiff Barroca
26
concedes that his conduct may have created a “false impression” that he lived at a different
27
location to Officer Ghishan. Id. Plaintiff alleges that HARD Ranger Dachineewan Oliver
1 informed ASCO’s deputies that he suspected Barroca was responsible for a stabbing incident and
2 associated him with the Hayward property. Amend. Compl. at 19, Ckt. No. 12; Mot. to Dismiss
3 Am. Compl. at 8, Dkt. No. 35. The ACSO’s incident report referenced Barroca’s prior law
4 enforcement contacts linking him to that address. Mot. to Dismiss Am. Compl. at 9, Dkt. No. 35.
5 During surveillance of Meek Park on May 30, 2024, probation officers observed Barroca at 9:30
6 a.m. but did not see him drive there, supporting an inference that he had stayed the night nearby.
7 Id. Later that day, officers arrested Barroca after calling him out of the Hayward residence, and he
8 was found in possession of a key to the front door. See Criminal Matter Dkt. No. 1020 ¶¶ 11-12
9 (Defendant Ghisan’s Declaration in the related Criminal Case). These facts are far more than a
10 mere hunch; they support a reasonable conclusion by any probation officer that there was probable
11 cause to believe that Barroca resided at the Hayward address, and thus the Hayward address was
12 subject to Barroca’s parole search conditions. See e.g. U.S. v. Franklin, 603 F.3d 652 (9th Cir.
13 2010) (finding probable cause and noting that “[t]he temporary nature of the occupancy does not
14 change the fact that for the night or nights that [defendant] rented Room 254, he was legally
15 entitled to use the room and to control access to it. For that time period, the room was his
16 residence in the sense meant in the community custody agreements.”); Motley v. Parks, 432 F.3d
17 1072, 1082 (9th Cir. 2005) (en banc), overruled in part on other grounds by United States v. King,
18 687 F.3d 1189 (9th Cir. 2012) (per curiam) (“Where an officer has an objectively reasonable,
19 good-faith belief that he is acting pursuant to proper authority, he cannot be held liable if the
20 information supplied by other officers turns out to be erroneous.”).
21 Further, Plaintiff Barroca’s search condition applied to “any property under his . . .
22 control” which required him to “warn any residents that the premises may be subject to searches.”
23 Criminal Matter Dkt. No. 731 at 5. Neither Plaintiff is able to overcome qualified immunity to
24 argue that Defendant Ghisan’s conduct was so unreasonable to have placed the “constitutional
25 question beyond debate.” Kisela v. Hughes, 584 U.S. 100, 104 (2018). Defendant Ghisan’s
26 search was conducted pursuant to a reasonable belief that Barroca resided at the Hayward address.
27 Accordingly, Defendant Ghishan is entitled to qualified immunity and Plaintiffs’ Claim 8
1 against Razan Ghishan is barred.”
2
3 2. Bivens Claim as to U.S. probation officers
4 Because the Court finds Plaintiffs’ claims against Defendant Ghishan are barred by
5 qualified immunity, the Court need not reach the Bivens question.
6
V. CONCLUSION
8 The Court GRANTS Defendants ASCO and Tya Modeste’s motion to dismiss with
? prejudice. The Court GRANTS Defendant Razan Ghishan’s motion to dismiss with prejudice.
10
IT IS SO ORDERED.
a 12
©
= 13 Dated: August 1, 2025
15
16 EDWARD. CHEN
United States District Judge
it
4 18
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22 2 After Plaintiffs repeatedly failed to file timely oppositions, the Court granted Plaintiff an
3 extension of time to file any oppositions to the present Motions to Dismiss. Dkt. No. 52. Plaintiff
then filed an opposition to Defendant Ghisan’s Motion. Dkt. No. 54. Defendant Ghisan then filed
24 || Supplement Brief to address Plaintiffs’ belated Opposition because Defendant Ghisan’s previous
reply was filed without the opportunity to address Plaintiffs’ (belated) opposition. Dkt. No. 57.
95 || Plaintiffhas now moved to strike Defendant Ghisan’s Supplemental Brief, arguing it was made in
“bad faith,” and contesting whether there was a key in Plaintiff Barroca’s pocket to the Hayward
26 || tesident’s front door. He argues that instead the key was only to the “screen door.” Dkt. No. 59.
Plaintiff Barroca then asks the Court for an evidentiary hearing to address “probable cause.” The
97 || Court DENIES Plaintiff's motion to strike as it meritless. As noted above, there is ample evidence
to support that Defendant Ghisan had probable cause to search the Hayward residence. Whether
2g || the key was to the “screen door” of the Hayward residence, or to the front door, is immaterial.
Either way, it showed he had special access.