                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

 JOSEPHINE SMITH, an individual;                  No. 14-15103
 A.S., a minor child, by and through
 her guardian ad litem, Josephine                   D.C. No.
 Smith,                                          5:11-cv-03999-
                 Plaintiffs-Appellants,               LHK

                     v.
                                                    OPINION
 CITY OF SANTA CLARA, a public
 entity,
                Defendant-Appellee.

        Appeal from the United States District Court
          for the Northern District of California
          Lucy H. Koh, District Judge, Presiding

          Argued and Submitted February 12, 2016
                 San Francisco, California

                   Filed November 30, 2017

  Before: Mary M. Schroeder and Jacqueline H. Nguyen,
   Circuit Judges, and Lynn S. Adelman, * District Judge.

                  Opinion by Judge Adelman

    *
      The Honorable Lynn S. Adelman, United States District Judge for
the Eastern District of Wisconsin, sitting by designation.
2               SMITH V. CITY OF SANTA CLARA

                          SUMMARY **


                           Civil Rights

    The panel affirmed the district court’s judgment, entered
following a jury verdict, in favor of several police officers
and the City of Santa Clara, in an action brought pursuant to
42 U.S.C. § 1983 alleging that police officers violated
plaintiff’s constitutional rights under state and federal law
when they conducted a search of her home.

    Santa Clara police officers, over plaintiff’s objections,
entered her home, without a warrant, to search for her
daughter who was on probation and who police had probable
cause to believe had just been involved in a theft of an
automobile and a stabbing.

    The panel held that once the government has probable
cause to believe that a probationer has actually reoffended
by participating in a violent felony, the government’s need
to locate the probationer and protect the public is heightened.
The panel held that this heightened interest in locating the
probationer was sufficient to outweigh a third party’s
privacy interest in the home that she shared with the
probationer. The panel held that Georgia v. Randolph, 547
U.S. 103 (2006), which recognized a limitation on
warrantless consent searches, was not directly applicable
because the Supreme Court’s probation-search cases did not
rest on a consent rationale. Instead, the question was
whether a warrantless probation search that affects the rights

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 SMITH V. CITY OF SANTA CLARA                           3

of a third party is reasonable under the totality of the
circumstances. The panel held that under the totality of the
circumstances, and the undisputed facts of this case, the
warrantless search of plaintiff’s home, over her objection,
was reasonable as a matter of law. The panel further held
that there was sufficient evidence at trial to permit the jury
to find that officers had probable cause to believe that
plaintiff’s daughter lived at the residence.


                             COUNSEL

Lauren R. Coatney (argued), Christine Peek, Matthew
Schechter, and James McManis, McManis Faulkner, San
Jose, California, for Plaintiffs-Appellants.

Sujata T. Reuter (argued) and Jon A. Heaberlin, Rankin
Stock Heaberlin, San Jose, California, for Defendant-
Appellee.


                              OPINION

ADELMAN, District Judge:

    Justine Smith was involved in the theft of a vehicle and
the stabbing of its owner. During the course of their
investigation of these crimes, the police learned that Smith
was on probation and that the terms of her probation allowed
warrantless searches of her person and residence. The police
went to the house that she had reported as her residence.
Josephine Smith, Justine’s mother, answered the door. 1 The

      1
        For clarity, we will refer to Justine and Josephine Smith by their
first names.
4             SMITH V. CITY OF SANTA CLARA

officers, who did not have a warrant, told Josephine that they
were there to conduct a probation search for Justine.
Josephine refused to admit the officers to the home without
a warrant. Despite her objection, the officers entered the
home to search for Justine but did not find her.

    Josephine and her minor granddaughter, A.S., sued
several police officers and the City of Santa Clara, alleging
that the search for Justine violated their constitutional rights
under state and federal law. The jury returned a verdict for
the defendants. The plaintiffs now appeal, arguing that
under the Supreme Court’s decision in Georgia v. Randolph,
547 U.S. 103 (2006), the search of Josephine’s home was
unreasonable as a matter of law because the undisputed facts
showed that Josephine was physically present at the time of
the search and refused permission to search.

                               I.

                              A.

    On October 4, 2010, Vahid Zarei reported to the San Jose
Police Department that his car had been stolen. Zarei told
police that he had just given Justine Smith a ride in the car
and discovered that his spare key to the vehicle was missing.
On October 7, 2010, Zarei’s friend found the car in Santa
Clara, California. Zarei and his friend then drove to Santa
Clara to retrieve the car. When they arrived, but before they
could get to the car, Justine and an unknown male entered
the car and drove away. Justine was the driver. Zarei and
his friend followed the car in the friend’s car. At some point
the cars stopped and the unknown male exited Zarei’s
vehicle and stabbed Zarei in the stomach. The male got back
into Zarei’s car, and Justine drove away. Zarei was taken to
the hospital with life-threatening injuries.
              SMITH V. CITY OF SANTA CLARA                    5

    Santa Clara police officers investigated both the car theft
and the stabbing. While at the hospital, they showed Zarei’s
friend a picture of Justine, and he identified her as the driver
of the stolen car. The police then learned that in December
2009, a California court had placed Justine on probation for
three years in connection with felony convictions for grand
theft and forgery. As a condition of her probation, Justine
agreed to warrantless searches of her residence.

    The police contacted the probation department to
determine Justine’s whereabouts. On December 22, 2009,
Justine reported her address to probation as 940 Gale Drive.
This was the address of her mother’s unit in a small, two-
unit duplex. On January 6, 2010, Justine reported to the
California Department of Motor Vehicles that her address
was 942 Gale Drive, which was the address for the other unit
in the duplex. In addition, two entries in a county database,
one dated January 27, 2010, and the other dated May 14,
2010, listed Justine’s address as 940 Gale Drive. Finally, on
June 2, 2010, Justine once again reported to probation that
her residence was 940 Gale Drive, but this time she added
that she was in the process of moving out of her mother’s
house.

    On October 10, 2010, officers began surveilling the Gale
Drive duplex but did not see Justine. After waiting awhile,
they knocked on the door to 940 Gale Drive and announced,
“Probation Search. Open the door.” Josephine opened the
door, stated that Justine did not live at the residence, and
demanded that the officers produce a search warrant. When
the officers explained that they needed to conduct a
probation search for Justine, Josephine became angry and
refused to allow them to enter.

    The officers entered the home despite Josephine’s
objections. They did not find Justine, but they found in the
6                SMITH V. CITY OF SANTA CLARA

garage a sofa with sheets lying on it, female clothing, and an
unopened envelope addressed to Justine at the 940 Gale
Drive address. Officers then told Josephine that they needed
to search the 942 unit of the duplex, which was locked and,
according to Josephine, rented to another tenant. When
officers indicated that they might need to force entry,
Josephine directed them to the key. Officers then searched
the 942 unit but did not find Justine.

                                    B.

    After the search, Josephine and A.S. sued the City of
Santa Clara and the individual police officers involved in the
search, alleging violations of their constitutional rights under
42 U.S.C. § 1983 and California’s Bane Act, Cal. Civ. Code
§ 52.1, 2 along with several other state-law claims. 3 One of
Josephine’s claims was that the search of the duplex violated
her Fourth Amendment right to be free from unreasonable
searches and seizures. Josephine argued that the search was
unreasonable because the officers had searched her home
without a warrant or her consent. (She also challenged the
manner in which the officers carried out the search, but we
will not discuss that aspect of her claim, as it is not at issue
in this appeal.)

    The defendants moved for summary judgment on the
Fourth Amendment claim. They argued that the warrantless
search of the residence was permitted because Justine was
on probation and the Supreme Court has held that officers

    2
      The Bane Act provides a cause of action for individuals whose
“rights secured by” federal or California law have been interfered with
“by threat, intimidation, or coercion.” Cal. Civ. Code § 52.1(a)–(b).
     3
       For simplicity, from this point on we will refer to Josephine as the
sole plaintiff, even though her minor granddaughter is also a plaintiff.
              SMITH V. CITY OF SANTA CLARA                  7

may search a probationer’s residence without a warrant if
they have reasonable suspicion that a probationer subject to
a search condition is engaged in criminal activity. See
United States v. Knights, 534 U.S. 112, 121 (2001). In
opposition to the motion, Josephine argued that the Supreme
Court’s more recent decision in Randolph created an
exception to the probation-search rule. In Randolph, the
Court held that a warrantless search of a residence, when
justified only by an occupant’s consent to the search, is
unreasonable as to a co-occupant when that co-occupant is
physically present and objects to the search. 547 U.S. at 106.
Josephine argued that, under Randolph, because she was
present and objected to the search of her home, the search
was unreasonable as to her.

    The district court granted the defendants’ motion for
summary judgment on Josephine’s § 1983 claim on the
ground of qualified immunity, reasoning that it was not
clearly established that Randolph created an exception to the
probation-search rule. However, the court denied the motion
for summary judgment on the Bane Act claim because
qualified immunity of the kind applied to § 1983 claims does
not apply to actions brought under the Bane Act. See
Cousins v. Lockyer, 568 F.3d 1063, 1072 (9th Cir. 2009).
Thus, the court essentially allowed the federal Fourth
Amendment claim to proceed to trial through the vehicle of
the California Bane Act.

    The Bane Act claim was tried along with some related
claims arising out of the search. Over Josephine’s objection,
the district court did not instruct the jury that Justine’s
consent was insufficient to make the search reasonable if
Josephine was present and objected to the search. Josephine
also sought judgment as a matter of law on the ground that it
was undisputed that she was present and objected to the
8             SMITH V. CITY OF SANTA CLARA

search and that therefore the search was unreasonable under
Randolph. The district court denied the motion. The jury
returned a verdict in favor of the defendants on all claims,
and the district court entered judgment in their favor.

    Josephine now appeals the judgment only as it relates to
the Bane Act claim. She contends that the district court
should have granted her motion for judgment as a matter of
law because, under Randolph, her objection to the search
required the officers to obtain a warrant before conducting a
probation search for Justine. For the same reason, she argues
that the district court should have instructed the jury to find
the search unreasonable if it found that Josephine was
present and objected to the search.

                              II.

    Josephine’s challenges to both the jury instructions and
the district court’s denial of her motion for judgment as a
matter of law turn on the same question of Fourth
Amendment law: Is a warrantless search of a residence that
the police have probable cause to believe is the residence of
a probationer, and that is otherwise reasonable as to the
probationer, unreasonable as to a non-probationer occupant
of the residence who is present at the time of the search and
refuses to consent to the search? We review the district
court’s resolution of this question of law de novo. See
Quicksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 755 (9th
Cir. 2006) (review of denial of judgment as a matter of law
de novo); Wall Data Inc. v. L.A. Cnty. Sheriff’s Dep’t,
447 F.3d 769, 784 (9th Cir. 2006) (review of whether the
                 SMITH V. CITY OF SANTA CLARA                           9

district court’s jury instructions misstate the law is de
novo). 4

                                   A.

    “It is a basic principle of Fourth Amendment law that
searches and seizures inside a home without a warrant are
presumptively unreasonable.” Payton v. New York, 445 U.S.
573, 586 (1980) (internal quotation marks omitted). One
exception to this principle is that the police generally may
search a home without a warrant if they have obtained
voluntary consent from the individual whose home is
searched. See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 181
(1990) (citing Schneckloth v. Bustamonte, 412 U.S. 218
(1973)). Under this “voluntary consent” rationale, a search
will also be valid against an “absent, nonconsenting person”
so long as the police obtain the consent of a person who
possesses common authority over the home with the absent
person. United States v. Matlock, 415 U.S. 164, 170–71
(1974). In Randolph, the Supreme Court recognized a

    4
       Although Josephine’s Bane Act claim is based on alleged
violations of both the Fourth Amendment and the California
Constitution, we do not understand Josephine to be arguing that there are
material differences between the federal and state constitutions regarding
unreasonable searches and seizures. That is, we do not understand her
to be arguing that even if the search was reasonable under federal law, it
could be deemed unreasonable as a matter of California state law, or vice
versa. Thus, in this opinion, we apply federal law and assume without
deciding that the same result would obtain under state law. See
Sacramento Cnty. Deputy Sheriffs’ Ass’n v. County of Sacramento,
59 Cal. Rptr. 2d 834, 845–46 (Ct. App. 1996) (“[C]ogent reasons must
exist before a state court in construing a provision of the state
Constitution will depart from the construction placed by the Supreme
Court of the United States on a similar provision in the federal
Constitution.” (quoting Raven v. Deukmejian, 801 P.2d 1077, 1088 (Cal.
1990))).
10              SMITH V. CITY OF SANTA CLARA

limitation on warrantless consent searches of a home. In that
case, the Court held that even if a person who apparently
possesses common authority over a home consents to a
warrantless search, the search is not reasonable as to a
second occupant if that occupant is physically present and
refuses permission to search. 547 U.S. at 120.

    Another exception to the principle that warrantless
searches of a home are unreasonable relates to persons who
are on probation or parole. In Griffin v. Wisconsin, the
Supreme Court found a search of a probationer’s residence
reasonable even though it was conducted without a warrant.
483 U.S. 868, 880 (1987). The search in that case was
conducted pursuant to a state regulation that permitted any
probation officer to search a probationer’s home without a
warrant as long as his supervisor approved and as long as
there were “reasonable grounds” to believe that contraband
would be found in the home. Id. at 870–71. In upholding
the search, the Court noted that although a warrant was
normally required to search a home, the state’s interest in
supervising a probationer gave rise to “special needs” that
permitted “a degree of impingement upon privacy that would
not be constitutional if applied to the public at large.” Id. at
875. The Court then found that these special needs made the
warrant requirement impracticable. Id. at 875–78. 5 The
Court stated:

         A warrant requirement would interfere to an
         appreciable degree with the probation

     5
      The Court also found that the special needs relating to the
probation regime justified replacing the normal requirement of probable
cause to believe that contraband would be found in the probationer’s
home with the lesser standard of reasonable grounds. Griffin, 483 U.S.
at 878–80.
              SMITH V. CITY OF SANTA CLARA                 11

       system, setting up a magistrate rather than the
       probation officer as the judge of how close a
       supervision the probationer requires.
       Moreover, the delay inherent in obtaining a
       warrant would make it more difficult for
       probation officials to respond quickly to
       evidence of misconduct, and would reduce
       the deterrent effect that the possibility of
       expeditious searches would otherwise create.

Id. at 876 (citations omitted).

    Some years later, the Supreme Court, in Knights, found
a warrantless search of a California probationer’s home
reasonable even though it was conducted by a sheriff’s
deputy rather than a probation officer and the purpose of the
search was not to supervise the probationer but to investigate
a specific crime. 534 U.S. at 121. The Court began by
noting that, in Griffin, it analyzed the reasonableness of a
warrantless search by a probation officer under its “special
needs” cases. Id. at 117–18. In Knights, the Court declined
to use the special-needs approach used in Griffin. See id.
The Court also declined to analyze the reasonableness of the
search under the “consent” rationale of cases such as
Schneckloth despite recognizing that the California Supreme
Court used that rationale in deeming similar probation
searches reasonable. Id. at 118 (citing People v. Woods,
981 P.2d 1019 (Cal. 1999)).

    Instead of using either the special-needs rationale or the
consent line of cases, the Court in Knights examined whether
the search “was reasonable under [the Court’s] general
Fourth Amendment approach of ‘examining the totality of
the circumstances,’ with the probation search condition
being a salient circumstance.” Id. (citation omitted) (quoting
12              SMITH V. CITY OF SANTA CLARA

Ohio v. Robinette, 519 U.S. 33, 39 (1996)). Under this
approach, the reasonableness of a search is determined by
assessing, on the one hand, the degree to which it intrudes
upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate
governmental interests.       Id. at 118–19.       The Court
determined that “Knights’ status as a probationer subject to
a search condition” informed both sides of the
reasonableness balance. Id. at 119. On the individual-
privacy side of the balance, the Court found that the
probation condition significantly diminished Knights’
reasonable expectation of privacy. Id. at 119–20. On the
governmental interest side of the balance, the Court
recognized that “the probationer ‘is more likely than the
ordinary citizen to violate the law.’” Id. at 120 (quoting
Griffin, 483 U.S. at 880). The Court also found that
“probationers have even more of an incentive to conceal
their criminal activities and quickly dispose of incriminating
evidence than the ordinary criminal because probationers are
aware that they may be subject to supervision and face
revocation of probation, and possible incarceration, in
proceedings in which the trial rights of a jury and proof
beyond a reasonable doubt, among other things, do not
apply.” Id. The Court reasoned that the state’s “interest in
apprehending violators of the criminal law, thereby
protecting potential victims of criminal enterprise, may
therefore justifiably focus on probationers in a way that it
does not on the ordinary citizen.” Id. at 121. After balancing
these respective interests, the Court concluded that a
warrantless search of the home of a probationer subject to a
search condition is reasonable as to the probationer if there
is reasonable suspicion that criminal conduct is occurring. 6
     6
      The Court in Knights left open the possibility that the police can
search a probationer’s residence on less suspicion or even none at all.
                 SMITH V. CITY OF SANTA CLARA                         13

Id. The Court determined that the governmental interests
were sufficiently weighty to justify “an intrusion on the
probationer’s significantly diminished privacy interests.”
Id.

                                   B.

    Randolph was a consent case. The Court held that when
the only justification for a search of a residence is the consent
given by a person with common authority over the premises,
the search is unreasonable as to a second person who is
physically present and refuses permission to search.
547 U.S. at 106. But the Supreme Court’s probation-search
cases do not rest on a consent rationale. Rather, Griffin used
a “special needs” rationale, 483 U.S. at 875–76, while
Knights expressly eschewed the California Supreme Court’s
consent rationale in favor of the “totality of the
circumstances” approach, 534 U.S. at 118. Moreover, in a
later case involving parole searches, the U.S. Supreme Court
again expressly declined to employ a consent rationale. See
Samson v. California, 547 U.S. 843, 852 n.3 (2006).

    Before the Supreme Court decided Randolph, the
California Supreme Court used a consent rationale to justify
warrantless probation searches that affected third parties.
Woods found a probation search of a residence reasonable as
to a non-probationer co-occupant on the ground that the
probationer’s search condition qualified as consent.

See Knights, 534 U.S. at 120 n.6. We have since held that “a
suspicionless search, conducted pursuant to a suspicionless-search
condition of a violent felon’s probation agreement, does not violate the
Fourth Amendment.” United States v. King, 736 F.3d 805, 810 (9th Cir.
2013) (leaving open whether the same is true for “probationers who have
not accepted a suspicionless-search condition, or of lower level offenders
who have accepted a suspicionless-search condition”).
14            SMITH V. CITY OF SANTA CLARA

981 P.2d 1019, 1023–28 (1999). The court used the
“common authority” principle recognized in Matlock to
determine that the probationer’s search condition rendered
the search reasonable as to the non-probationer. Id. at 1024–
25. Since Randolph was decided, however, the California
Supreme Court has not considered whether a warrantless
probation search of a residence would be unreasonable as to
a present and objecting non-probationer co-occupant.
Because we do not need to predict how the California
Supreme Court would answer this question of federal law,
we will not further explore whether that court’s approach to
probation-search cases is affected by Randolph. Rather, we
apply the cases of the U.S. Supreme Court.

    Under the Supreme Court’s cases, probation searches are
not analyzed as consent searches. Thus, Randolph, which
creates an exception to the consent rule, is not directly
applicable. Instead, the question is whether a warrantless
probation search that affects the rights of a third party is
reasonable under the totality of the circumstances. See
Knights, 534 U.S. at 118–19. To answer this question, we
balance the degree to which the search intrudes upon the
third party’s privacy against the degree to which the search
is needed for the promotion of legitimate governmental
interests. Id. at 119. A non-probationer, of course, has a
higher expectation of privacy than someone who is on
probation, and therefore the privacy interest in this case is
greater than it would be if the search affected only the
probationer. But we conclude that, under the facts of this
case, the governmental interests at stake were sufficiently
great that the warrantless search of the duplex over
Josephine’s objection was reasonable.

    It is undisputed that the police knew, at the time of the
search, that Justine was serving a felony probation term for
                 SMITH V. CITY OF SANTA CLARA                         15

serious offenses. It is further undisputed that the police had
probable cause to believe that Justine had just been involved
in the theft of an automobile and a stabbing, and that she was
still at large. As the Court recognized in Knights, one of the
governmental interests justifying warrantless probation
searches is the need to protect the public from the
probationer, who is more likely than the ordinary citizen to
reoffend. Id. at 121. Obviously, once the government has
probable cause to believe that the probationer has actually
reoffended by participating in a violent felony, the
government’s need to locate the probationer and protect the
public is heightened. This heightened interest in locating the
probationer is sufficient to outweigh a third party’s privacy
interest in the home that she shares with the probationer.
Therefore, under the undisputed facts of this case, we
conclude that the warrantless search of the home over
Josephine’s objection was reasonable as a matter of law. 7

    We stress that our conclusion is limited to the facts of
this case, where the police had probable cause to believe that
the probationer, who was on probation in connection with
serious offenses, had just participated in a violent felony and
was still at large. We express no view as to what would

    7
      In our discussion so far, we have assumed that the police had
probable cause to believe that the Gale Drive duplex was Justine’s
residence. However, this was a disputed issue at trial, and we note that
a probation search of a residence is unreasonable if the police lack
probable cause to believe that the probationer actually resides there. See
Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc),
overruled on other grounds by United States v. King, 687 F.3d 1189 (9th
Cir. 2012) (en banc). Here, the jury was correctly instructed to find the
search of the duplex reasonable only if the police had probable cause to
believe that Justine resided there. Josephine contends that the evidence
did not support the jury’s conclusion that the police had such probable
cause, but as we discuss below, the evidence was sufficient to support
the verdict on this issue.
16             SMITH V. CITY OF SANTA CLARA

happen in a case in which the police conduct a search—over
the objection of a present and objecting co-occupant—of a
probationer’s residence who is on probation for offenses that
are neither violent nor serious, and who is not suspected of
involvement in a subsequent offense.

                               C.

    Because under federal precedent probation and parole
searches are not consent searches, and therefore Randolph
does not directly apply to this case, it follows that the district
court correctly denied the Josephine’s motion for judgment
as a matter of law, which sought judgment on the ground that
Josephine’s objection “trumped” any consent that Justine
may have given as a term of her probation. The search was
not automatically rendered unreasonable by Josephine’s
presence at the time of the search and refusal to grant
permission to search. Moreover, under the undisputed facts,
the governmental interests at stake were sufficient as a
matter of law to make a warrantless probation search of the
duplex reasonable over Josephine’s objection. Therefore,
the district court did not err in refusing to instruct the jury
that Justine’s consent was insufficient if Josephine was
present and refused to consent to the search.

    One aspect of the jury instructions deserves additional
discussion. The instructions state that the search of the
duplex without a warrant was reasonable provided that the
defendants proved that “Justine Smith consented to the
search as a probationer.” As we have discussed, the
Supreme Court does not consider warrantless probation
searches reasonable because of the probationer’s consent.
Rather, the Court uses the totality-of-the-circumstances
approach. Thus, the jury instructions, which were framed in
terms of consent, did not correctly state the legal rationale
for finding a probation search reasonable. (This was
              SMITH V. CITY OF SANTA CLARA                  17

understandable, in that the pre-Randolph California cases
use the consent rationale.) However, as we have discussed,
the facts establishing that the entry into the duplex was
reasonable under the totality of the circumstances were
undisputed. That is, there was no dispute that the police
knew that Justine was on probation for serious offenses, that
she was subject to a warrantless search condition, and that
she had just been identified as an accomplice to a car theft
and stabbing. Under these facts, the search was reasonable
as a matter of law despite Josephine’s objection. Thus, the
court’s instructing the jury that the search would be
reasonable if it was based on Justine’s consent as a term of
probation was harmless. See Davis v. Mason County,
927 F.2d 1473, 1482 (9th Cir. 1991) (noting that error in jury
instruction is harmless when subject of instruction is
resolved as a matter of law).

                              D.

    As we mentioned above, an additional requirement for a
warrantless probation search is that the police have probable
cause that the home they are searching is actually the home
of the probationer. Motley, 432 F.3d at 1080. In her reply
brief, Josephine contends that the evidence at trial was
insufficient to permit the jury to reasonably conclude that the
officers had probable cause to believe that Justine resided
there. This argument, which has nothing to do with
Randolph, is a potential alternative ground for reversing the
district court’s denial of the plaintiff’s motion for judgment
as a matter of law. But Josephine did not raise this
alternative ground for reversing the denial of the motion in
her opening brief, and thus we are inclined to consider it
waived. See, e.g., Graves v. Arpaio, 623 F.3d 1043, 1048
(9th Cir. 2010) (argument raised for first time in reply brief
is waived).
18            SMITH V. CITY OF SANTA CLARA

    In any event, the evidence at trial was sufficient to permit
the jury to find that the officers had probable cause to believe
that Justine resided at the duplex. The evidence allowed the
jury to find that, on the morning of the search, officers
retrieved records from three separate sources—the probation
department, county databases, and the state DMV—
indicating that Justine lived at the duplex. Most of these
documents listed her address as 940 Gale Drive, but
942 Gale Drive was also listed once. Josephine argues that
Justine’s listing both addresses required the police to believe
that Justine moved back and forth between both addresses in
a short period of time, which Josephine thinks is incredible
and prevented the police from having probable cause to
believe that Justine lived at either address. However,
because both addresses belonged to the same duplex, the jury
could have reasonably concluded that Justine’s having used
both addresses did not cast doubt on whether she lived at the
duplex. It is not as though the different addresses were for
different homes in different parts of town.

    Josephine also points to a police warrant report involving
Justine that contains a note stating that, as of June 1, 2009,
Justine was “not living on Gale.” But this report was created
before Justine was even placed on probation in December
2009 or reported to the probation department that she lived
at the duplex. This report also predates the entries in the
DMV and county databases listing the Gale Drive addresses
as her residence. Thus, while the report might have cast
doubt on whether Justine lived at the duplex in June 2009, it
did not prevent the jury from finding that the officers had
probable cause to believe that she lived at the duplex at the
time of the search in October 2010.
              SMITH V. CITY OF SANTA CLARA                 19

                             III.

    We conclude that the district court did not err in denying
Josephine’s motion for judgment as a matter of law or in
instructing the jury.

   AFFIRM
