Cuevas v. State of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO CUEVAS; HEATHER 

BURLETTE,

Plaintiffs-Appellants,

v.

JON DE ROCO; THE EL DORADO

COUNTY SHERIFF’S OFFICE; JEFF

NEVES; RICHARD HORN; MICHAEL No. 06-15403

COOK; CHRISTOPHER STARR; BRIAN D.C. No.

GOLMITZ,  CV-04-02092-

Defendants-Appellees, MCE/GGH

and OPINION

RICK RIMMER; SHARON JACKSON,

and THE VON HOUSEN AUTOMOTIVE

GROUP, doing business as

Mercedes Benz of El Dorado

Hills,

Defendants.



Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted December 3, 2007

Submission Vacated December 5, 2007

Resubmitted June 27, 2008

San Francisco, California

Filed June 27, 2008

Before: Betty B. Fletcher, Marsha S. Berzon, and

Johnnie B. Rawlinson, Circuit Judges.

7661

7662 CUEVAS v. DE ROCO

Per Curiam Opinion

7666 CUEVAS v. DE ROCO

COUNSEL

Mark A. Miller (argued), of the El Dorado Hills Law Group,

for the plaintiffs-appellants.

James E. Flynn (argued), David A. Carrasco, Frances T.

Grunder, James M. Humes, and Bill Lockyer, of the office of

the Attorney General of the State of California, for the state

defendant-appellee.

Franklin G. Gumpert (argued), of Barkett & Gumpert, for the

county defendants-appellees.

CUEVAS v. DE ROCO 7667

OPINION

PER CURIAM:

Plaintiffs Armando Cuevas and Heather Burlette appeal the

district court’s grant of summary judgment against them on

their civil rights action brought pursuant to 42 U.S.C. § 1983.1

Although Plaintiffs alleged a variety of constitutional viola-

tions in the district court, they press on appeal only their claim

that a warrantless entry into their residence on February 25,

2004, was unlawful under the Fourth Amendment to the Con-

stitution.

Viewing the facts in the light most favorable to Plaintiffs,

as we must, we conclude that Deputy Sheriff Christopher

Starr violated Plaintiffs’ Fourth Amendment rights and is not

entitled to qualified immunity. We therefore reverse the dis-

trict court’s grant of summary judgment to Starr. However,

we conclude that Deputy Sheriffs Richard Horn and Michael

Cook did not violate Plaintiffs’ Fourth Amendment rights,

and we therefore affirm as to them. Plaintiffs do not argue on

appeal that their Fourth Amendment rights were violated by

Sheriff Jeff Neves, Sergeant Brian Golmitz, or the County of

El Dorado. Accordingly, we affirm as to those Defendants as

well.2

I. Statement of Facts

This case arises out of a botched attempt by law enforce-

ment to locate a parolee in Plaintiffs’ residence. On Septem-

ber 19, 1999, the parolee, Randy Witmore, was arrested in

1

We decline to strike Plaintiffs’ opening brief, which, despite some

inaccuracies, adequately states their case.

2

Plaintiffs also sued several other parties, including Parole Agent Jon de

Roco, but they have either settled with those parties or have not pursued

their case against them on appeal. De Roco’s superiors, Rick Rimmer and

Sharon Jackson, were dismissed by stipulation in the district court.

7668 CUEVAS v. DE ROCO

Diamond Springs, California, for possession of explosive

devices, apparently after he was stopped for driving under the

influence. On the arrest form, Witmore’s residence is listed as

464 Capella Drive in Diamond Springs (“the Diamond

Springs address”).

However, from 1990 to May 2003, that address belonged

to the family of Lori Rodrigues, a friend of Witmore’s. While

it is not clear whether Witmore also may have lived at the

Diamond Springs address around the time of his 1999 arrest,

Rodrigues declared that Witmore did not live at the Diamond

Springs address between September 2001 and May 2003. In

December 2001, when Witmore’s parole officer telephoned

the Diamond Springs address to ask how Witmore was doing,

Rodrigues informed the parole officer that Witmore did not

live there and that there was an order in place requiring Wit-

more to stay away from her.

On March 5, 2002, Witmore was sent to prison after his

probation was revoked, but, on July 29, 2003, he again was

paroled. Witmore’s parole form lists Witmore as “homeless,”

as living with “no one,” and as having no telephone number.

The parole form also notes that Witmore is “[t]rying to get

into Ridgeview.” The form does list Rodrigues at the Dia-

mond Springs address, but only as an emergency contact.

Witmore’s parole was again revoked when, on August 1,

2003, Witmore was arrested for battery. The Department of

Corrections “charge sheet,” dated August 11, 2003, lists Wit-

more’s last known address as “2980 Coloma Rd., Placerville.”

Public telephone records reveal that this address belongs to a

boarding house called Ridgeview Manor. Witmore was

returned to prison on September 10, 2003.

On January 16, 2004, Witmore was once more released on

parole. In February 2004, Parole Agent Jon de Roco was

assigned to Witmore’s case. Witmore’s case file revealed that

Witmore had failed to report to the parole unit as he had been

CUEVAS v. DE ROCO 7669

instructed to do. Accordingly, de Roco and his supervisor

decided that de Roco would prepare the paperwork necessary

to seek a warrant for Witmore’s arrest as an absconded paro-

lee. De Roco and his supervisor further decided that, as part

of the process of preparing the paperwork, de Roco would go

to the emergency contact address listed on Witmore’s July

2003 parole form — the Diamond Springs address — and

attempt to obtain information about Witmore’s whereabouts.

If de Roco found Witmore there, he would take him into cus-

tody.

On February 25, 2004, de Roco contacted the El Dorado

County Sheriff’s Office and was placed in contact with Dep-

uty Sheriffs Starr, Horn and Cook. De Roco informed the dep-

uties that he intended to do a “knock and talk” at the Diamond

Springs address, which is “where you knock on the door and

talk to who opens it.”3 De Roco informed the deputies that

“Witmore was wanted and if located would be taken into cus-

tody.”

That evening, de Roco met with the deputies at a conve-

nience store near Cuevas’s residence. At the meeting, accord-

ing to Deputy Horn’s deposition, de Roco showed the

deputies a “flyer” with a photo of Witmore and an address on

it, which, the record suggests, was a “face sheet” from the

Parole and Community Services Division of the California

Department of Corrections. The “face sheet” lists Witmore’s

most recent address as “Self, Placerville” with a street address

“to be determined.” The “face sheet” further indicates that

Witmore had lived in Placerville since December 2002. In

addition to viewing the “flyer” or “face sheet,” the deputies

looked up Witmore in the ACIS local law enforcement data-

base, which indicated that during three contacts with the Sher-

3

De Roco testified at his deposition that the telephone number associ-

ated with the Diamond Springs address on Witmore’s parole form was dis-

connected, but he did not know when it had been disconnected and did not

remember whether he called the number on the day of the search.

7670 CUEVAS v. DE ROCO

iff’s Office in 2001 and 2002 Witmore had provided the

Diamond Springs address. The deputies made no further

inquiries into Witmore’s current residence.

After the meeting, the deputies and de Roco headed to the

Diamond Springs address. By that time, Rodrigues no longer

lived there. She had sold the house in April 2003 and moved

out in May 2003. Plaintiffs and their infant child had moved

in. Plaintiff Cuevas may bear a general resemblance to Wit-

more, although their appearances are far from identical.

When the deputies and de Roco arrived at the Diamond

Springs address they saw cars parked in the driveway and

lights on inside the house. They did not run a check on the

cars’ license plates but instead approached the house and got

into position. The deputies wore bullet-proof black vests with

a cloth star on the left breast and the word “Sheriff” on the

right breast as well as on the back. De Roco, too, wore a dark-

colored bullet-proof vest, but his vest bore no insignia. Over

his vest de Roco wore an open Hawaiian shirt with the tails

tucked behind his “duty belt,” on which were his holstered

gun, his handcuff pouch, and his badge. De Roco also wore

hiking boots and jeans.

Deputies Cook and Horn walked to the back of the house,

through an open gate in the fence, and stood in the yard. De

Roco and Deputy Starr walked up to the front door. It was

dark outside, there was no porch light on, and curtains cov-

ered the front window, so the area was only slightly illumi-

nated by ambient light from inside the home and from

surrounding residences.

De Roco knocked on the door several times. Plaintiffs, who

were working in their home office, heard the knocks, and

Cuevas walked to the door. Cuevas looked out the window

but, because of the darkness, could not see anything. Deputy

Starr, looking through an opening in the curtains on the front

window, saw someone by the door and said to de Roco, “He’s

CUEVAS v. DE ROCO 7671

right here.” Next, de Roco heard Cuevas say, “Who is it?,” to

which de Roco answered “State Parole.” De Roco then heard

Cuevas say, “Who?,” to which de Roco again responded,

“State Parole,” but in a louder voice.

At that point Cuevas opened the door approximately four

to six inches. De Roco, who had been standing by the left

door jamb, stepped to his right towards the door opening.

Deputy Starr stood behind and to the left of de Roco. De Roco

made eye contact with Cuevas and said either, “Is your name

Randy,” or, “Randy?” Cuevas looked down for a moment

with his hands at his sides, paused briefly, and then began to

swing the door closed. De Roco, who thought he had found

Witmore and wanted to arrest him, put his foot between the

door and the door jamb and began pushing against the door

with his shoulder and his hands to prevent it from closing.

Deputy Starr moved to de Roco’s right and also began push-

ing against the door.

Cuevas was “really scared” and believed that someone was

trying to break into his house and hurt his family. He called

out for Plaintiff Burlette to dial 911. Cuevas pushed back

against the door and, when de Roco and Deputy Starr gained

momentum, he reached around the door and punched de Roco

in the mouth, chipping his teeth. De Roco and Deputy Starr

continued to push against the door and gained entrance into

the residence. A short struggle ensued during which Deputy

Starr repeatedly announced, “Sheriff’s Department, put your

hands behind your back.” Eventually de Roco and Deputy

Starr were able to subdue and handcuff Cuevas.

When Deputy Starr went to look for Burlette, he found her

on the telephone with the 911 dispatcher and “in hysterics.”

The dispatcher and Deputy Starr calmed Burlette down and

explained that the officers were looking for Witmore. Burlette

informed Deputy Starr that Witmore did not live there. Dep-

uty Starr went “to look around for Mr. Witmore” in a protec-

tive sweep of the residence, but the only other person present

7672 CUEVAS v. DE ROCO

was Plaintiffs’ baby. The record indicates that at least one of

the Plaintiffs consented to Deputy Starr’s protective sweep.

In the meantime, Deputies Cook and Horn, who had heard

an altercation and a woman screaming inside, moved from the

backyard to the front of the house. Deputy Horn entered the

house and spoke briefly with Burlette to further explain the

situation. He then went back outside and waited on the porch.

Deputy Cook did not go inside the house but waited in the

doorway.

Next, Burlette retrieved Cuevas’s driver’s license and the

deputies confirmed that Cuevas was not Witmore. After con-

sulting with other officers, Deputy Starr arrested Cuevas for

knowingly performing a battery on a custodial officer, in vio-

lation of California Penal Code § 243.1. However, the district

attorney decided not to press charges because, he concluded,

Cuevas had not known that de Roco was an officer.

Plaintiffs sued for damages, alleging violations of their

rights under the Fourth, Fifth and Fourteenth Amendments, as

well as various violations of state law. Defendants moved for

summary judgment and, in the alternative, for qualified

immunity. The district court submitted the case on the briefs

and granted summary judgment in favor of Defendants on all

claims. Because the district court found no constitutional vio-

lation, it did not determine whether Defendants were pro-

tected by qualified immunity. Plaintiffs timely appealed.

II. Standard of Review

“A grant of summary judgment is reviewed de novo.”

Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir.

2007). Summary judgment is appropriate only “if the plead-

ings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any mate-

rial fact and that the movant is entitled to judgment as a mat-

ter of law.” Fed. R. Civ. P. 56(c). “In determining whether

CUEVAS v. DE ROCO 7673

summary judgment is appropriate, we view the facts in the

light most favorable to the non-moving party and draw rea-

sonable inferences in favor of that party.” Scheuring v. Tray-

lor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007).

III. Discussion

A. Violation of the Fourth Amendment

The entry into Plaintiffs’ home commenced when de Roco

put his foot in the door opening and, together with Deputy

Starr, began pushing against the door in an attempt to open it.

This warrantless entry was unconstitutional.

[1] “It is a basic principle of Fourth Amendment law that

searches and seizures inside a home without a warrant are pre-

sumptively unreasonable.” Brigham City, Utah v. Stuart, 126

S. Ct. 1943, 1947 (2006) (quotation marks omitted). Indeed,

“physical entry into the home is the chief evil against which

the wording of the Fourth Amendment is directed.” Frunz v.

City of Tacoma, 468 F.3d 1141, 1142 (9th Cir. 2006) (quota-

tion marks omitted); see also Silverman v. United States, 365

U.S. 505, 511 (1961).

[2] The warrantless entry into Plaintiffs’ home cannot be

justified as a search for a parolee in what might have been the

parolee’s residence. Although the residence of a parolee may

be searched even if the police suspect no wrongdoing, see

Samson v. California, 547 U.S. 843, 856 (2006), “before con-

ducting a warrantless search . . . law enforcement officers

must have probable cause to believe that the parolee is a resi-

dent of the house to be searched,” Motley v. Parks, 432 F.3d

1072, 1080 (9th Cir. 2005) (en banc). And, absent such proba-

ble cause, “[n]othing in the law justifies the entry into and

search of a third person’s house to search for the parolee.” Id.

at 1079. We consider, therefore, what information the depu-

ties had about Witmore’s residence at the moment they began

the entry.

7674 CUEVAS v. DE ROCO

The record reveals that de Roco provided the deputies with

the Diamond Springs address and informed them that it was

an “emergency contact address.” There is no indication that

de Roco represented to the deputies that Witmore actually

lived at the Diamond Springs address. When asked in his

deposition whether de Roco had made such a representation,

Deputy Horn responded only that de Roco “had reason to

believe that he thought Witmore could possibly be there.”

Moreover, the fact that de Roco told the deputies that he

wanted to do a “knock and talk” indicates that he was basi-

cally trying to learn of Witmore’s whereabouts and, at most,

was hoping that he might be fortunate enough to find Wit-

more there.

Indeed, despite the fact that the ACIS database indicated

that Witmore had provided the Diamond Springs address in

2001 and 2002, the record indicates that the deputies under-

stood that Witmore was not currently living at the Diamond

Springs address. The record supports the inference that de

Roco showed the deputies a “face sheet” stating that Witmore

lived in Placerville. In their depositions, Deputy Horn testified

that he understood the Diamond Springs address to be an

“emergency contact address,” and Deputy Starr testified that

he merely “assum[ed]” that the Diamond Springs address was

Witmore’s residence “at some time.”

Even if the “flyer” that de Roco showed the deputies was

not the “face sheet,” the deputies made no effort to determine

whether Witmore had provided de Roco or any other authori-

ties an address other than the Diamond Springs address after

2002. If they had made such an effort, the deputies would

have learned from the August 2003 parole form that Wit-

more’s last known address was the Ridgeview Manor in

Placerville. They might also have learned that, in December

2001, Lori Rodrigues informed Witmore’s parole officer that

Witmore did not live at the Diamond Springs address. Fur-

ther, the deputies conducted no surveillance at the Diamond

Springs address to determine whether Witmore lived there,

CUEVAS v. DE ROCO 7675

they did not even determine that Rodrigues still lived there

(by checking property records, for example), and they did not

run a check on the license plates of the cars parked outside the

residence on the night of the search.

Viewing the record in the light most favorable to Plaintiffs,

we conclude that, based on the limited information in their

possession, the deputies lacked probable cause to believe that

Witmore resided at the Diamond Springs address.

[3] The fact that Cuevas tried to close the door when he

was asked whether his name was “Randy” does not change

our conclusion. Cuevas explained that he thought de Roco —

whose Hawaiian shirt, jeans and hiking boots masked that he

was a government officer — was a “bad man” who might

harm his family. This explanation is a plausible reason for

closing the door when a stranger came to his house at night.

Although Deputy Starr’s clothing more clearly identified him

as a government officer, the evidence indicates that Deputy

Starr was not visible to Cuevas because he was standing

behind and to the side of de Roco. That Cuevas subsequently

punched de Roco does not affect our analysis, because the

punch occurred after de Roco and Deputy Starr had already

begun to enter the house.

[4] Nor does the fact that de Roco thought Cuevas resem-

bled Witmore change our conclusion. Even if the deputies

were permitted to rely on de Roco’s belief that Cuevas resem-

bled Witmore, see United States v. Jensen, 425 F.3d 698, 705

(9th Cir. 2005) (observing that when there has been communi-

cation among agents, probable cause can rest upon the investi-

gating agents’ collective knowledge), the deputies would not

have had probable cause to believe that Witmore resided at

the Diamond Springs address, see Watts v. County of Sacra-

mento, 256 F.3d 886, 890 (9th Cir. 2001) (“Watts II”) (“[T]he

mere fact that [plaintiff] answered the door of his girlfriend’s

home in his boxer shorts did not establish a reasonable belief

that he lived there.”).

7676 CUEVAS v. DE ROCO

[5] In sum, the information suggesting that Witmore might

have resided at the Diamond Springs address was several

years old, uncorroborated by available sources, and contra-

dicted by two more recent pieces of information, both of

which indicated that Witmore lived in Placerville. Neither de

Roco nor the deputies had contact with Witmore — or anyone

who knew Witmore and could reliably provide information

concerning his residence — prior to the search. Moreover, de

Roco knew, and so informed the deputies, that the Diamond

Springs address was merely an emergency contact address at

which he sought to perform a “knock and talk.”

The contrast with the kind of information that does meet

the applicable probable cause standard is stark. For example,

in Motley the police searched the apartment of the parolee’s

girlfriend, where the parolee also lived at some point, approx-

imately three months after she had moved in. 432 F.3d at

1075-76. While the parolee was, as it turned out, in custody

at the time of the search, the police had gathered information

about the parolee within a month of the search that indicated

the apartment as the parolee’s last known address. Id. at 1076,

1080 & n.6. In addition, a police officer who participated in

the search had had contact with the parolee on previous occa-

sions — including once at the apartment — during which the

parolee and his grandmother had confirmed that the parolee

lived at the apartment. Id. at 1080-81. Although the girlfriend

— “a less than disinterested source” — told the officers who

came to search the apartment that the parolee did not live

there and that he was in custody, we concluded that the offi-

cers nonetheless had probable cause to believe that the paro-

lee resided at the apartment. Id. at 1076, 1082.

The information available to de Roco and the deputies sug-

gesting that Witmore might have lived at the Diamond

Springs address was significantly less reliable than the infor-

mation available to the officers in Motley. Thus, the informa-

tion did not meet our “relatively stringent standard [for]

determining what constitutes probable cause that a residence

CUEVAS v. DE ROCO 7677

belongs to a person on supervised release.” United States v.

Howard, 447 F.3d 1257, 1262 (9th Cir. 2006).

More generally, in Howard we surveyed four cases in

which a search was proper and identified several patterns:4

First, in each of these cases the parolee did not

appear to be residing at any address other than the

one searched. In three of these four cases, the paro-

lee had reported a different address, but officers had

good reason to believe that he was not actually resid-

ing at the reported address. . . .

Second, in each of these four cases, 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[.] . . .

Third, in each of [these cases] the parolee had a

key to the residence in question. . . .

Lastly, in two of these cases, either the parolee’s

co-resident or the parolee himself identified the resi-

dence in question as that of the parolee.

447 F.3d at 1265-66.

The facts of this case fit into none of the patterns identified

in Howard. First, the evidence indicating that Witmore might

have lived at the Diamond Springs address stemmed from

2002 or earlier, Department of Corrections records from 2003

and 2004 indicated that Witmore’s last known address was in

Placerville, and the deputies did not have good reason to

4

Those four cases are United States v. Conway, 122 F.3d 841 (9th Cir.

1997), United States v. Watts, 67 F.3d 790 (9th Cir. 1995), United States

v. Harper, 928 F.2d 894 (9th Cir. 1991), and United States v. Dally, 606

F.2d 861 (9th Cir. 1979).

7678 CUEVAS v. DE ROCO

believe that Witmore was nonetheless residing in Diamond

Springs. Second, the deputies had made no observations that

gave them good reason to believe that Witmore lived at the

Diamond Springs address. Third, there is no evidence that

Witmore had a key to Plaintiffs’ residence. Fourth, there is no

evidence that after 2002 Witmore ever indicated that he lived

at the Diamond Springs address, nor that Rodrigues, his listed

emergency contact, lived there after 2003, nor that Plaintiffs

ever indicated that Witmore lived there.

[6] Thus, viewing the facts in the light most favorable to

Plaintiffs, we conclude that the officers lacked probable cause

to believe that Witmore lived at the Diamond Springs address

and that, accordingly, Deputy Starr violated Plaintiffs’ Fourth

Amendment rights by assisting de Roco in pushing against the

door and forcibly entering the residence.5

[7] However, Deputies Horn and Cook did not violate

Plaintifffs’ Fourth Amendment rights by entering the residence.6

Deputy Horn briefly entered the residence, and Deputy Cook

went to stand in the doorway, only after they heard an alterca-

tion and a woman screaming inside the residence. At that

point there was an objectively reasonable basis for concluding

that there was an immediate need to protect persons inside the

5

Because the warantless entry was unconstitutional regardless of Wit-

more’s parole status, we need not consider Cuevas and Burlette’s argu-

ments concerning California parole law and policy.

6

Plaintiffs have not alleged in their complaint that Deputies Horn and

Cook violated their Fourth Amendment rights by entering their fenced

backyard before leaving the backyard and entering the residence through

the front door. Nor do they “coherently develop[ ]” such an argument on

appeal. United States v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997); see

also Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007); Fed. R.

App. P. 28(a)(9). Accordingly, we do not consider whether Deputies Horn

and Cook’s warrantless entry into the backyard constituted an unlawful

intrusion into the residence’s curtilage. See United States v. Dunn, 480

U.S. 294, 300-01 (1987); United States v. Romero-Bustamente, 337 F.3d

1104, 1107 (9th Cir. 2003).

CUEVAS v. DE ROCO 7679

home from serious harm. See United States v. Snipe, 515 F.3d

947, 951-52 (9th Cir. 2008).

[8] Deputy Starr’s protective sweep “to look around for Mr.

Witmore” also did not violate Plaintiffs’ Fourth Amendment

rights. It is clear that at least one of the Plaintiffs consented

to such a sweep and neither objected. See United States v.

Murphy, 516 F.3d 1117, 1122 (9th Cir. 2008) (“It is well

established that a person with common authority over prop-

erty can consent to a search of that property without the per-

mission of the other persons with whom he shares that

authority.”) (citations omitted). However, the record indicates

that, as part of the sweep, Deputy Starr opened at least one

drawer. Doing so exceeded both the consent given and the

limits of a lawful protective sweep incident to an in-house

arrest. See Maryland v. Buie, 494 U.S. 325, 327 (1990)

(explaining that a permissible protective sweep “is narrowly

confined to a cursory visual inspection of those places in

which a person might be hiding”). Accordingly, Deputy Starr

also violated Plaintiffs’ Fourth Amendment rights in this

regard, although any damages caused are likely minimal.

B. Qualified Immunity

Deputy Starr nonetheless contends that he is protected by

qualified immunity. Having concluded that Deputy Starr vio-

lated Plaintiffs’ Fourth Amendment rights, we must determine

whether, in the specific context of this case, those constitu-

tional rights were clearly established at the time of the viola-

tion. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Motley,

432 F.3d at 1077. We conclude that they were.

[9] First, it was well-established at the time of the entry of

Plaintiffs’ home that, absent exigent circumstances, police

may not enter a person’s residence for purposes of search or

seizure without a warrant. See, e.g., Payton v. New York, 445

U.S. 573, 586 (1980) (“It is a basic principle of Fourth

Amendment law that searches and seizures inside a home

7680 CUEVAS v. DE ROCO

without a warrant are presumptively unreasonable.”) (internal

quotation marks omitted).

[10] Second, it was well-established at the time of the entry

that police could search a residence for a parolee without a

warrant only if their belief that a parolee lived there was

based on the equivalent of probable cause.

In so holding, we recognize that the terms used to describe

this standard were somewhat unclear at the time of the entry

into Plaintiffs’ home. In United States v. Dally, 606 F.2d 861,

863 (9th Cir. 1979), we held that officers must have a “rea-

sonable basis” to think that a parolee lived at an address they

wished to search. We later stated that “probable cause” to

think so was required, see United States v. Harper, 928 F.2d

894, 896 (9th Cir. 1991); United States v. Watts, 67 F.3d 790,

795-96 (9th Cir. 1995) (“Watts I”), overruled on other

grounds, 519 U.S. 148 (1997), so “this question was a matter

of some confusion,” Howard, 447 F.3d at 1262 n.5, before we

held that probable cause was the proper standard in Motley,

432 F.3d at 1080.

[11] This inconsistency does not, however, settle the matter

in Deputy Starr’s favor. However the standard was described,

his conduct fell well below it. The facts of Dally make clear

how stringent the “reasonable basis” standard was. The offi-

cers in that case had a reasonable basis “for the belief that [the

parolee] lived” at a residence when they saw him enter the

residence a week before the police entry; “photographed him

taking out the garbage, bringing in his laundry and talking

with neighbors”; later saw that his car had been parked there

overnight, and, on the day of the entry, observed him “re-

turn[ ] with dry cleaning, change[ ] his clothes and [leave] the

apartment carrying laundry.” 606 F.2d at 862. And the police

did not commence entry until the parolee “returned again with

more dry cleaning” and “used a key to open the door.” Id.

Recounting the facts of Dally in Howard, we concluded that

the “police had strong evidence” supporting their search, and

CUEVAS v. DE ROCO 7681

analyzed Dally as part of a line of “probable cause”-based

cases, see Howard, 447 F.3d at 1262-63 & 1262 n.6.

In subsequent cases, as noted, supra note 4, we employed

the probable cause standard “stringent[ly].” Howard, 447 F.3d

at 1262; see also id. at 1263-64 (discussing later cases). So,

despite some confusion as to the formulation of the standard,

we have long held that there must be strong evidence to think

that a parolee resides at an address before the address can be

searched without a warrant.

[12] Whatever doubt might have remained on that point

was disposed of by United States v. Gorman, 314 F.3d 1105

(9th Cir. 2002). Gorman is not a parole search case, but con-

cerned the “related context[ ],” Motley, 432 F.3d at 1079, of

whether police had “reason to believe” that a criminal for

whom they had an arrest warrant was present in a third party’s

residence, justifying entry into that residence without a search

warrant or consent. Gorman, 314 F.3d at 1110. We concluded

that our case law’s requirement that the police have a “reason-

able belief” that a person lives at a particular residence

“should be read to entail the same protection and reasonable-

ness inherent in probable cause.” Id. at 1114-15.

Gorman reinforced the principle that our prior parole

search cases strongly suggested: The “reasonable basis” stan-

dard does not depart in any important regard from the “proba-

ble cause” standard, and the police therefore cannot conduct

a warrantless search of a residence in search of a parolee

unless their belief that the parolee resides there is based on the

equivalent of probable cause. See Gorman, 314 F.3d at 1110-

11, 1114-15. Motley, of course, cleared up any remaining

ambiguity by acknowledging the holding in Gorman and stat-

ing, in the parole search context, that “[w]e see no reason to

depart from [its] conclusion here.” 432 F.3d at 1080.

[13] The information Deputy Starr acted upon fell well

below the “reasonable basis” standard as applied in the cases

7682 CUEVAS v. DE ROCO

decided before the events underlying this case. It would there-

fore be clear to a reasonable officer in Deputy Starr’s posi-

tion, considering his actions in light of the then-existing case

law, that his conduct was unlawful. See Saucier, 533 U.S. at

202.

Finally, the limits of a lawful protective sweep were also

clearly established at the time of the search. See Buie, 494

U.S. at 327.

[14] Accordingly, Deputy Starr is not protected by quali-

fied immunity.

IV. Conclusion

[15] The record, viewed in the light most favorable to

Plaintiffs, establishes that Deputy Starr violated Plaintiffs’

Fourth Amendment rights by participating in the forced entry

of the residence and by opening at least one drawer during the

protective sweep. Moreover, Deputy Starr is not protected by

qualified immunity. Accordingly, we reverse the grant of

summary judgment to Deputy Starr and remand for trial con-

cerning the constitutional violations.7 However, we affirm as

to the other Defendants.

The parties shall bear their own costs.

AFFIRMED in part, REVERSED in part, and

REMANDED.

7

We note that Cuevas’s arrest was not unlawful because it was sup-

ported by probable cause. Accordingly, neither Deputy Starr nor any of

the other Defendants is liable for damages resulting from the arrest itself.