S.D.Cal.: Parolee executed a “fourth waiver” so only real question was whether there was probable cause to believe he lived in the place searched

Defendant was a California parolee who had executed a “fourth waiver,” and he knew he was subject to a parole search at any time. The only question was whether the officers had probable cause to believe he was living there at the time, and they did, so the search was valid. United States v. Gutierrez, 2015 U.S. Dist. LEXIS 55606 (S.D.Cal. April 28, 2015):

“Police or parole officers may lawfully conduct searches of parolees or their residences without satisfying the Fourth Amendment’s warrant requirement when certain conditions are met.” Id. “One such condition is that the parolee is subject to a provision authorizing such warrantless searches.” Id. (citing United States v. Lopez, 474 F.3d 1208, 1212—14 (9th Cir. 2007)). “A second such condition is that ‘[b]efore conducting a warrantless search’ of a residence ‘pursuant to a parolee’s parole condition, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.'” Id. (quoting United States v. Howard, 447 F.3d 1257, 1262 (9th Cir. 2006)). “[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 (quoting United States v. Diaz, 491 F.3d 1074, 1077—78 (9th Cir. 2007); Howard, 447 F.3d at 1262) (footnote omitted). “[T]his is a relatively stringent standard which requires more than a mere well-founded suspicion. … There must be strong evidence that the parolee resides at the address.” Id. at 976 (internal quotations and citations omitted). “‘[C]ertain patterns’ have ‘clearly emerge[d]’ in most cases in which officers have probable cause to conclude that a parolee lived in a residence ‘not reported by [the] parolee’ as his address.'” Id. (citing Howard, 447 F.3d at 1265). “The patterns Howard enumerated were: (1) the 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.” Id. (citing Howard, 447 F.3d at 1265-66) (quotations omitted). These factors are considered “cumulatively.” Id. “[T]he determination of probable cause is based upon the totality of the circumstances known to the officers at the time of the search.” Lacey v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012) (en banc).