                       FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                    No. 11-50498
           Plaintiff-Appellant,
                                                D.C. No.
                  v.                     2:10-cr-00262-SVW-1

 LAMBERT T. GRANDBERRY,
          Defendant-Appellee.                   OPINION


        Appeal from the United States District Court
            for the Central District of California
        Stephen V. Wilson, District Judge, Presiding

                   Argued and Submitted
          February 14, 2013—Pasadena, California

                   Filed September 17, 2013

   Before: Marsha S. Berzon and Paul J. Watford, Circuit
     Judges, and Jed S. Rakoff, Senior District Judge.*

                 Opinion by Judge Berzon;
               Concurrence by Judge Watford;
                Concurrence by Judge Berzon



  *
     The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
2               UNITED STATES V. GRANDBERRY

                           SUMMARY**


                           Criminal Law

    The panel affirmed the district court’s suppression of
evidence found during a warrantless search of an apartment
that the defendant, a parolee, had entered several times during
the days preceding the search.

    The panel rejected the government’s argument that this
court’s precedent requiring that officers have probable cause
to conclude that a parolee lives at an address before carrying
out a warrantless search pursuant to a parole search condition
is no longer binding law in light of Samson v. California, 547
U.S. 843 (2006).

    Applying this court’s “relatively stringent” standard, the
panel held that the officers’ observations were insufficient
evidence to establish that the defendant lived at the apartment
they searched.

    The panel also held that where, as here, it is abundantly
clear that the searched property is a residence, a parole
condition permitting searches of “your residence and any
property under your control” is triggered only when the
officers have probable cause that the parolee lives at a
residence.

    The panel remanded for further proceedings.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. GRANDBERRY                     3

    Concurring, Judge Watford wrote that United States v.
Howard, 447 F.3d 1257 (9th Cir. 2006), which established the
rule that parolees have a greater expectation of privacy in
someone else’s home than they have in their own home, is
unsound and warrants reexamination.

    Concurring, Judge Berzon wrote separately to respond to
Judge Watford’s suggestion that applying Howard here
permits a parolee to assert greater than Fourth Amendment
protection in someone else’s home than in his own home and
is unsound and warrants reexamination.


                         COUNSEL

André Birotte Jr., United States Attorney; Robert E. Dugdale,
Assistant United States Attorney, Chief, Criminal Division;
Jean-Claude André (argued), Assistant United States
Attorney, Criminal Appeals Section, Los Angeles, California,
for Plaintiff-Appellant.

Carlton F. Gunn (argued), Of Counsel, Kaye, McLane &
Bednarski, Pasadena, California, for Defendant-Appellee.


                          OPINION

BERZON, Circuit Judge:

    After police officers arrested Lambert Grandberry, they
decided to search a nearby apartment Grandberry had entered
several times — at least six — in recent days. The officers
relied on Grandberry’s status as a parolee as their authority to
search the apartment and so did not obtain a warrant. We
4             UNITED STATES V. GRANDBERRY

must address whether the police complied with our
precedents requiring that officers have probable cause to
conclude that a parolee lives at an address before carrying out
a warrantless search pursuant to a parole search condition.

    The district court determined that the officers did not have
the requisite probable cause with regard to whether
Grandberry lived at the apartment searched and so ordered
suppression of evidence found there, including a firearm and
about seventy-five grams of crack cocaine. We review the
district court’s decision to suppress evidence de novo, and its
factual findings supporting that decision for clear error. See
United States v. Song Ja Cha, 597 F.3d 995, 999 (9th Cir.
2010). For the reasons that follow, we affirm.

                               I.

    In January 2010, Los Angeles Police Department (LAPD)
Detective Patrick Aluotto received an anonymous tip that
someone was selling crack cocaine out of a garage behind
2351 W. 31st Street in Los Angeles. Aluotto contacted an
informant who had previously provided reliable information
about drug sales. The informant identified the 31st Street
garage as “Looney’s spot.” An LAPD officer who had
previously arrested Grandberry clarified that “Looney” was
Grandberry’s pseudonym. Aluotto and LAPD Officer Cesar
Orozco, using a database listing Grandberry’s criminal
history, learned that Grandberry was on parole for a
California felony conviction. One of Grandberry’s parole
conditions was that “[y]ou and your residence and any
property under your control may be searched without a
warrant by an agent of the Department of Corrections or any
law enforcement officer.” See also Cal. Code Regs. tit. 15,
§ 2511(b)(4) (2009); Cal. Penal Code § 3067(a) (2009). The
               UNITED STATES V. GRANDBERRY                          5

two officers also learned from that database that Grandberry
lived at 10652 South Manhattan Place in Los Angeles.
Aluotto and the informant drove past the 31st Street garage,
where the informant identified a red Pontiac parked outside
as Grandberry’s.

    After reviewing a photograph of Grandberry, Aluotto,
Orozco, and LAPD Officer Armando Mendoza (collectively,
the “Officers”) conducted surveillance at the 31st Street
address. On January 14, Mendoza observed Grandberry hand
a woman a bag of “a substance [that] appeared to be crack
cocaine” in exchange for cash.1

    Rather than arresting Grandberry on the spot, Aluotto,
Orozco, and Mendoza decided to “conduct additional
surveillance” “to gauge the extent of his narcotics activities.”
Sometime later in mid-January, the Officers followed
Grandberry as he drove from the 31st Street garage to an
apartment building at 3418 S. Arlington Avenue, a distance
of about two blocks. In the following days, the Officers —
sometimes individually and sometimes as a group —
observed Grandberry drive between the two locations “in a
peculiar manner — cutting . . . through an alley[],” as if “to
evade law enforcement detection.”

   The Officers focused their surveillance of Grandberry
almost exclusively on the Arlington apartment building,
which they visited on a number of occasions between January
14 and January 25, at various times, usually between noon
and 10 p.m. While parked outside the building, they
observed Grandberry enter the building using “keys he held”

 1
   A separate group of LAPD officers arrested the woman for possession
of a controlled substance during a traffic stop shortly thereafter.
6            UNITED STATES V. GRANDBERRY

at least six times, and perhaps ten. Except once, Grandberry
entered the building alone; on one occasion, he entered with
a female companion. Another time the Officers saw the same
woman arrive at the building alone. On some of the
occasions on which the Officers observed Grandberry go into
the building, they saw “movement or activity through the
window of [a] second-floor unit” just after Grandberry
entered, and at least once they saw Grandberry “looking out
of the window of that apartment unit.”

    One officer conducted surveillance after 10 p.m. but never
saw Grandberry at the Arlington apartment building past ten
or during the early morning. None of the Officers checked
the names on the building’s mailboxes to see if Grandberry
received mail there. None of them ever observed him
carrying groceries, laundry, newspapers, or mail. None asked
any neighbors whether Grandberry lived there; examined the
building’s trash for whether it contained anything of
Grandberry’s; or investigated who leased or lived in the
Arlington apartment.

    Once, the Officers saw Grandberry leave the Arlington
apartment building, approach a parked vehicle, hand a man a
white paper bag, then re-enter the building. Other officers
detained the man, who was carrying $9,000 in cash. The man
was not charged with any offense.

    The Officers knew that Grandberry had reported to his
parole officer that he lived on South Manhattan Place, the
same address the California Department of Motor Vehicles
(DMV) had on file for Grandberry. Two of the Officers
conducted “very brief” surveillance at that address for about
an hour on a single afternoon or evening in January. They
did not see Grandberry. The two observed that the house
              UNITED STATES V. GRANDBERRY                        7

appeared occupied; they did not interview anyone at the
house or any neighbors as to whether Grandberry lived there.
Nor did they ask Grandberry’s parole officer whether
Grandberry lived on South Manhattan Place, because they
“did not want to inadvertently tip [Grandberry] off to [the]
continuing investigation.”

    On January 25, the Officers decided to arrest Grandberry
for the January 14 narcotics sale. They went to the Arlington
address, where they saw him leave the apartment building and
drive away in the Pontiac. When he later returned and
stepped out of the car, but before he had entered the building,
the Officers identified themselves as police. Grandberry
thereupon ran away and tossed keys to the ground; the
Officers chased after him. Ultimately, Aluotto and Mendoza
used physical force to detain Grandberry. Orozco picked up
the keys, approached Grandberry, and according to Orozco,
said: “You are on parole with search conditions. We are
going to search your place now.” Orozco later testified that
Grandberry responded: “Do what you gotta do.” Grandberry
denies that such a “conversation . . . took place.”2 The
Officers did not ask Grandberry whether he lived at the
Arlington apartment, or who did live there.

    Orozco agreed at the suppression hearing that the Officers
had “plenty of time” to get a search warrant but took no steps
to do so. Instead, they used Grandberry’s keys to enter first
the apartment building and then the apartment in which they
had previously observed Grandberry. Once in the apartment,


   2
      The district court made no factual finding as to whether this
conversation between Orozco and Grandberry took place. The court
deemed Orozco’s testimony credible in other respects and made no
credibility determination as to Grandberry.
8               UNITED STATES V. GRANDBERRY

the Officers discovered cocaine (in the kitchen and in a
bedroom closet); a loaded gun (in a hallway closet); male
clothing (in the hallway); and mail addressed to Grandberry
at the Manhattan Place address. They later found more
cocaine in the red Pontiac parked outside.

    A federal grand jury indicted Grandberry of one count of
distributing more than five grams of crack cocaine (the crack
sold on January 14), in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(iii) (2006); one count of possessing more than fifty
grams of crack cocaine (the crack found in the Arlington
apartment, which alone was more than fifty grams, as well as
that in the red Pontiac, which was only a few grams), in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) (2006); and
one count of possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(2006).

    Grandberry moved to suppress the crack cocaine and the
gun found in the Arlington apartment, on the ground that the
Officers lacked probable cause that the apartment was his
residence.3 To establish standing to seek suppression, he
submitted a declaration stating that the Arlington apartment
was his girlfriend’s and that he had stayed there overnight as
an invited guest a few times in December 2009 and January
2010, including the night before the search. After initially
denying suppression, the district court granted
reconsideration and suppressed the evidence found in the



    3
   Grandberry initially moved to suppress the crack cocaine found in the
Pontiac, but he later abandoned that argument in the district court and does
not press it on appeal. He never sought suppression of the crack cocaine
sold on January 14.
             UNITED STATES V. GRANDBERRY                    9

Arlington apartment. The government timely took an
interlocutory appeal under 18 U.S.C. § 3731.

                             II.

    The question before us is whether the warrantless search
of the Arlington apartment was valid under the Fourth
Amendment because Grandberry was subject to a parole
search condition. The government contends that the search
was permissible for either of two reasons: first, the Officers
had probable cause that the Arlington apartment was
Grandberry’s residence; and alternatively, the provision of
Grandberry’s search condition authorizing searches of “any
property under [his] control” permitted the search. We
address each argument in turn.

                             A.

    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. One such condition is that the parolee is subject to
a provision authorizing such warrantless searches. See
United States v. Lopez, 474 F.3d 1208, 1212–14 (9th Cir.
2007) (citing Samson v. California, 547 U.S. 843 (2006)),
overruled in part on other grounds, United States v. King,
687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam). Under
our precedents, 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.” United States v. Howard,
447 F.3d 1257, 1262 (9th Cir. 2006) (quoting Motley v.
10           UNITED STATES V. GRANDBERRY

Parks, 432 F.3d 1072, 1080 (9th Cir. 2005) (en banc),
overruled in part on other grounds, King, 687 F.3d 1189).

                              1.

     We begin by addressing the government’s argument that
Motley, Howard, and their progeny are no longer binding law
in light of Samson. For this proposition the government relies
on language in Samson stating that the parolee in that case
lacked “an expectation of privacy that society would
recognize as legitimate.” 547 U.S. at 852. The government
contends that Samson overruled our cases establishing that
unless the officers who search a residence in reliance on a
parole condition pertaining to residential searches have
probable cause to believe that the residence is that of the
parolee, the parolee can exclude evidence obtained in the
search from use in a criminal prosecution.

    As a three-judge panel, “as long as we can apply our prior
circuit precedent without running afoul of [Samson], we must
do so.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012)
(internal quotation marks omitted). We conclude that we can.

    (a) Substantively, the Motley/Howard rule is certainly not
“clearly irreconcilable,” Miller v. Gammie, 335 F.3d 889, 893
(9th Cir. 2003) (en banc), with Samson’s holding that
parolees are subject to suspicionless searches under some
circumstances. First, Samson involved a search of the
parolee’s person, not his residence. See 547 U.S. at 847. So
it had no reason to address the degree of knowledge officers
must have with regard to a parolee’s place of residence before
searching it in reliance on a parole condition. Consequently,
               UNITED STATES V. GRANDBERRY                       11

and not surprisingly, nothing in Samson discusses that
question.4

    Second, Motley, which did squarely address that question
and was followed as to that point in Howard, proceeded from
the premise that the answer does not depend on the degree of
suspicion as to wrongdoing required for a parole or probation
search. We recognized in Motley that “[a] state may closely
supervise parolees and impinge on their privacy rights to a
greater extent than on the rights of the general public.”
432 F.3d at 1083. And Motley post-dated United States v.
Knights, 534 U.S. 112 (2001), which held that officers need
only reasonable suspicion of wrongdoing to conduct a
warrantless search of a probationer’s residence pursuant to a
search condition. Motley nonetheless settled on the stricter
probable cause standard as the required level of suspicion
regarding residence, holding that “a condition of parole that
permits warrantless searches provides officers with the
limited authority to enter and search a house where the
parolee resides, even if others also reside there. But they
have to be reasonably sure that they are at the right house.”
See Motley, 432 F.3d at 1079. Because Motley and Howard
were decided after Knights — which set a standard of
wrongdoing lower than probable cause — we may not rely on
Samson to set aside the probable-cause-as-to-residence
requirement simply because Samson allows parole searches
without suspicion of wrongdoing.

   (b) The government maintains at some junctures in its
argument that its contention is one of Fourth Amendment


  4
    Nor does Lopez, the case in which we held that Samson applies to
residential searches in reliance on a parole condition, address the
Motley/Howard rule. See 474 F.3d 1208.
12            UNITED STATES V. GRANDBERRY

standing, not of substance. On that view, no parolee would
have standing to seek suppression of evidence obtained in
violation of the Motley/Howard rule, although a non-parolee
resident whose home is searched in reliance on another
individual’s parole search condition may have a suppression
remedy or the right to bring an affirmative action under
42 U.S.C. § 1983. Samson does not require such a
dichotomy.

    Under our precedents, Grandberry has standing to assert
that the search of the Arlington apartment violated the Fourth
Amendment by virtue of his status as an overnight guest
there. See United States v. Gamez-Orduño, 235 F.3d 453,
458 (9th Cir. 2000) (citing Minnesota v. Olson, 495 U.S. 91,
96–97 (1990)); see also Olson, 495 U.S. at 96 (holding that
“status as an overnight guest is alone enough” to establish
standing to assert a violation of the search of a host’s home).

     Prior to Samson, we applied the Motley rule not only in
the § 1983 context but also in cases involving parolee-
defendants’ motions to suppress, as long as Fourth
Amendment standing was otherwise established. In Howard,
for example, the defendant stayed overnight at his girlfriend’s
apartment the night before the search. See 447 F.3d at 1261.
Howard’s objection to the search of that apartment was
premised on the fact that the search was not of his home. See
id. at 1258. Applying Motley, and concluding that there was
no probable cause that Howard lived in the residence
searched, we reversed the district court’s denial of the motion
to suppress. Id. at 1268.

    Samson is not itself a case about Fourth Amendment
standing, and it does not purport to change the requisites for
raising a challenge to a substantively invalid search.
              UNITED STATES V. GRANDBERRY                     13

Moreover, the government is wrong in asserting that Samson
stripped parolees of any Fourth Amendment protection.

    Samson specifically disavowed the notion that its opinion
rested on “equa[ting] parolees with prisoners for the purpose
of concluding that parolees, like prisoners, have no Fourth
Amendment rights,” pointing out that “[i]f that were the basis
of our holding . . . there would have been no cause to resort
to Fourth Amendment analysis.” Samson, 547 U.S. at 850
n.2. Reflecting that assurance, Samson went on to refer to “a
parolee’s substantially diminished expectation of privacy,” id.
at 855 (emphasis added), a characterization inconsistent with
the notion that the Fourth Amendment does not protect
parolees at all. In contrast, the sentence from Samson on
which the government relies — “that [Samson] did not have
an expectation of privacy that society would recognize as
legitimate” — pertains to the particulars of Samson’s own
“totality of the circumstances . . . including the plain terms of
the parole search condition [allowing for suspicionless
searches of a parolee’s person],” not to any and all searches
and seizures of a parolee’s property or places associated with
the parolee, whether covered by the parole condition or not.
See id. at 852.

    Consistent with its recognition that parolees are not
exempt from Fourth Amendment protection, Samson left
open, for example, the possibility that a parolee subject to a
search condition could challenge searches conducted by
officers who lacked “knowledge that the person stopped for
the search is a parolee,” as well as for “arbitrary, capricious
or harassing searches.” Id. at 856 & n.5. Like the first of the
exceptions Samson expressly left open, the Motley/Howard
rule concerns a precondition for a search pursuant to a parole
14              UNITED STATES V. GRANDBERRY

condition — namely, warrantless entry into a particular
residence — not the propriety of the parole search itself.

    (c) For all these reasons, neither the substance of the
Motley/Howard “probable cause” requirement as to a
parolee’s residence, nor the recognition that a parolee-
defendant who otherwise has Fourth Amendment standing
can seek to exclude from trial evidence obtained from a
search not meeting that requirement, is “clearly irreconcilable
with [Samson’s] reasoning or theory.” Miller, 335 F.3d at
893. We therefore must apply our long-established probable-
cause-as-to-residence requirement. See id.

                                    2.

    Applying the Motley/Howard rule, probable 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. United States v.
Diaz, 491 F.3d 1074, 1077–78 (9th Cir. 2007); Howard,
447 F.3d at 1262.5 We have stressed that this is a “relatively

     5
     In some of the cases Howard surveyed, the court analyzed the
residence issue under a “reasonable suspicion” standard. See Howard,
447 F.3d at 1262 n. 5–6. Motley clarified that probable cause is the proper
standard for determining whether a parole lives at the residence searched.
See Motley, 432 F.3d at 1080.

     Although Howard and Motley were parolee cases, several of the cases
Howard analyzed involved searches of probationers, rather than parolees.
At the time Howard was decided, our cases assumed that both groups had
equivalent Fourth Amendment interests. In King, sitting en banc, we
“overrule[d]” those cases insofar as they “conflict[ed] with the Supreme
Court’s holding that ‘parolees have fewer expectations of privacy than
probationers.’” See King, 687 F.3d at 1189 (quoting Samson, 547 U.S. at
850)). Because neither the holdings nor the analysis in our precedents
                UNITED STATES V. GRANDBERRY                            15

stringent” standard, see United States v. Franklin, 603 F.3d
652, 656 (9th Cir. 2010), which requires more than “a mere
well-founded suspicion,” Howard, 447 F.3d at 1262.
“[T]here must be strong evidence” that the parolee resides at
the address. Cuevas v. de Roco, 531 F.3d 726, 736 (9th Cir.
2008) (per curiam).6

    In implementing this standard, we have identified “certain
patterns” that “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.
See 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. at 1265–66. These


assessing probable cause as to whether parolees and probationers lived in
particular residences depended on the purported Fourth Amendment
equivalence between those two groups, we discuss those precedents
without regard to whether they analyzed searches of probationers or
parolees.
  6
    Unlike Fourth Amendment standing, which can be assessed based on
evidence unknown to police officers at the time of a search, see Wayne R.
LaFave, Search and Seizure § 11.3, at 162 (5th ed. 2012), “the
determination of probable cause is based” only on “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); see LaFave,
Search and Seizure § 11.3. For that reason, Grandberry’s affidavit that he
occasionally stayed overnight in the Arlington apartment is relevant to his
Fourth Amendment standing but not to the Officers’ probable cause.
16            UNITED STATES V. GRANDBERRY

factors are viewed cumulatively rather than independently for
purposes of assessing probable cause as to residence.
Although the ultimate question whether probable cause exists
is “fact-intensive,” and cannot be answered by cross-checking
a list of factors, see Ornelas v. United States, 517 U.S. 690,
703 (1996), Howard’s synthesis of our precedents, reiterated
in Cuevas, see 531 F.3d at 734, guides our application of the
probable cause standard to the facts known to the Officers
before they conducted the warrantless search of the Arlington
apartment.

     The government contends that the following facts, in
combination, were sufficient to establish probable cause that
Grandberry lived at the Arlington apartment: (1) Grandberry
responded to Orozco’s announcement that the Officers were
about to search his “place” by saying: “Do what you gotta
do”; (2) the Officers did not observe Grandberry at his
reported Manhattan Place residence on the single occasion
that they conducted “very brief” surveillance there; (3) the
Officers observed Grandberry at the Arlington apartment
about six to ten times during their afternoon and evening
surveillance there (but not during their less frequent nighttime
operations); and (4) Grandberry used a key to enter the
Arlington apartment. Under our “relatively stringent”
standard, see Franklin, 603 F.3d at 656, we conclude that the
Officers’ observations, considered in their totality, are
insufficient to establish probable cause that Grandberry lived
at the searched residence.

    First, both Orozco’s statement and Grandberry’s response
were entirely ambiguous. Orozco announced that the
Officers were “going to search [Grandberry’s] place.”
Grandberry responded: “Do what you gotta do.” Orozco’s
reference to “your place” gave no indication that Orozco
                UNITED STATES V. GRANDBERRY                          17

viewed the Arlington apartment as Grandberry’s residence.
Grandberry could easily have understood “your place” to
refer to “your garage down the block on 31st Street,” or the
South Manhattan Place address. Moreover, Grandberry’s
response was not an admission of anything. Instead, it
signaled recognition of the fact that the Officers, who had just
“restrain[ed] and control[led]” Grandberry, were going to
pursue their investigation of his activities as they saw fit; they
did not ask for his consent to do so, and he did not give it.
Grandberry’s resigned response cannot reasonably be
understood either as admitting that he lived at the Arlington
address or as acquiescing that the search of that apartment
was consistent with his parole condition.

    The weakness of the government’s reliance on the “your
place” interchange between Grandberry and Orozco is
highlighted by comparing that exchange with those in cases
in which we have concluded that “either the parolee’s co-
resident or the parolee himself identified the residence in
question as that of the parolee.” See Cuevas, 531 F.3d at 734;
Howard, 447 F.3d at 1266. For example, in United States v.
Conway, 122 F.3d 841 (9th Cir. 1997), the defendant referred
to a bedroom “as ‘his.’” Id. at 843. And in United States v.
Watts, 67 F.3d 790 (9th Cir. 1995), rev’d on other grounds,
519 U.S. 148 (1997),7 a legal occupant of the house “told
police that she and [the defendant] lived there together.” Id.
at 793 (emphasis added). Grandberry’s very different
response to Orozco is, by comparison, of no value in
establishing that an officer of reasonable caution would
conclude that Grandberry lived at the Arlington apartment.



  7
    We have continued to cite Watts’s analysis as persuasive in applying
the probable cause standard. See Howard, 447 F.3d at 1263–64.
18              UNITED STATES V. GRANDBERRY

    Second, as the district court found, the Officers’
surveillance of Grandberry’s reported residence — at South
Manhattan Place — was “very peripheral.” In more than
thirty years of assessing whether officers had probable cause
to believe that a parolee or probationer lived at a searched
residence, we have never found probable cause where, as
here, the parolee officially and consistently reported a
residential address other than the one searched, unless there
was an affirmative and substantial basis for concluding that
he did not actually live there. See Cuevas, 531 F.3d at 734;
Howard, 447 F.3d at 1265.8

    Here, the Officers knew when they conducted
surveillance at the Arlington apartment that six months
earlier, Grandberry had reported to his parole officer that he
resided on South Manhattan Place. The Officers also knew
that Grandberry had reported that same address to the
California Department of Motor Vehicles. The Officers
nonetheless conducted only the most cursory surveillance of
the South Manhattan Place address. They visited it exactly
once, by sitting for an hour or two in the middle of the day in
a parked car outside the house. Although the Officers
observed that the residence was occupied, they made no
attempt to determine who lived there. They never sought
permission from the home’s occupants to enter; made no
attempt to locate or interview any neighbors; and never
contacted Grandberry’s parole officer to determine whether


     8
     Two cases post-dating Howard’s and Cuevas’s synthesis of our
precedents are not to the contrary. In Franklin, the defendant had not
reported any residential address. 603 F.3d at 654. And in United States
v. Mayer, 560 F.3d 948 (9th Cir. 2009), the police received multiple
reports, corroborated by other evidence, that the defendant lived at the
searched address. Id. at 957.
               UNITED STATES V. GRANDBERRY                          19

the officer had conducted home visits at the South Manhattan
Place address. Nor did they conduct surveillance during early
morning or evening hours, when someone who lived there
was most likely to be at home.

    The cases in which we have concluded that officers had
“good reason to believe that [a parolee] was not actually
residing at [his] reported address,” Howard, 447 F.3d at 1265,
presented far more facts in support of that conclusion than
these. In United States v. Dally, 606 F.2d 861 (9th Cir. 1979)
(per curiam), for example, “the parolee did not return
messages left for him at his reported address[,] and the parole
officer was unable to locate him there.” Howard, 447 F.3d at
1265. The parole officer in Watts visited the defendant at his
reported address weekly for fourteen months, finding him
there only once. See 67 F.3d at 795. And police had
observed Watts knock on the door of his reported address and
leave when there was no answer, “strongly suggesting that
[he] did not live there.” Id. at 795–96. Similarly, in Conway,
an officer had visited the defendant’s reported address
twenty-one times but found Conway there only once. See
122 F.3d at 842–43.

    In comparison, the Officers’ surveillance at South
Manhattan Place was perfunctory. Their meager attempt to
conduct any “further inquiries” into Grandberry’s reported
residence at South Manhattan Place, confirmed by his
driver’s license address, weighs against the reasonableness of
their conclusion that Grandberry lived elsewhere. See
Cuevas, 531 F.3d at 730.9


  9
    Of course, officers may have probable cause that a parolee lives at
“more than one residence,” given sufficient observations. See Case v.
Kitsap Cnty. Sheriff’s Dept., 249 F.3d 921, 930–31 (9th Cir. 2001). But
20              UNITED STATES V. GRANDBERRY

    Third, Grandberry’s repeated presence at the Arlington
apartment is certainly entitled to some weight in the probable
cause analysis. We have emphasized several times, however,
that a parolee’s presence at a residence, even if frequent, does
not, standing alone, establish probable cause that the parolee
lives there. Our cases distinguish between evidence that a
parolee had “visited” a particular residence and evidence that
a parolee “lived there.” Howard, 447 F.3d at 1267 (emphasis
in original). Even when there is evidence that the parolee has
“spent the night there occasionally,” we have concluded that
such evidence is “insufficient” to establish residence. See id.
at 1262.

    In Howard, for example, the officers lacked probable
cause as to residence even though police saw the defendant
“stretching in the doorway of [the searched] apartment the
morning of the search.” Id. at 1268. And in Watts v. County
of Sacramento, 256 F.3d 886 (9th Cir. 2001), the police
lacked a “reasonable belief” that a person who “answered the
door . . . in his boxer shorts” sometime after 9:30 p.m. lived
in the searched residence. Id. at 888–90.

    Here, the Officers never observed any signs that
Grandberry stayed overnight at the Arlington apartment, even
though some of the surveillance was conducted late in the
evening. Nor did anyone — including the confidential
informant who tipped off the Officers as to Grandberry’s drug


here, the Officers never claimed that they believed Grandberry had
multiple residences, only that his reported address was likely “a sham one,
listed in order to divert attention from his illegal activities.” Under our
case law, the Officers’ paltry effort to determine whether Grandberry lived
at his reported address weighs against a determination that the Officers
reasonably believed that he did not.
              UNITED STATES V. GRANDBERRY                   21

activity — report that Grandberry lived at the Arlington
apartment. Cf. Franklin, 603 F.3d at 654–55 (holding that
probable cause existed in part because of confirmation by a
motel clerk, immediately before the search, that the defendant
had “personally rented” the motel room in question and was
“currently” staying there); Mayer, 560 F.3d at 957 (holding
that two tips, including one from a reliable informant, that a
defendant lived at a particular residence (at which he also was
known to have previously resided) supported probable cause
as to residence).

    Moreover, in cases in which we have concluded that
police officers had probable cause as to residence, they “had
directly observed something that gave them good reason to
suspect that the parolee was using his unreported residence as
his home base.” Cuevas, 531 F.3d at 734; Howard, 447 F.3d
at 1265–66. Such indicia of a “home base” have included
“taking out the garbage,” and “bringing in” and “carrying”
out “laundry” and “dry cleaning.” Dally, 606 F.2d at 862.
Here, the Officers did not report seeing Grandberry conduct
any such activities. In their nearly two weeks of surveillance,
the only thing that they saw him carry in or out of the
apartment was a substantial sum of cash — a fact which, as
the district court concluded, might be indicative of his use of
the Arlington apartment as a base from which “to conduct
drug business,” but did not suggest that the apartment was his
residence.

    Of the facts that we have considered so far, then,
Grandberry’s presence at the Arlington apartment six to ten
times in two weeks is the only fact consistent with
Grandberry’s living there, and it is a weak indication, on its
own. That Grandberry also possessed and used a “key to
[enter] the residence in question” is, however, potentially of
22            UNITED STATES V. GRANDBERRY

significance in the probable cause calculus. See Cuevas,
531 F.3d at 734; Howard, 447 F.3d at 1266.

     In analyzing the relevance of a parolee’s possession and
use of a key, we have made clear that such a fact, standing
alone, does not establish probable cause. In United States v.
Harper, 928 F.2d 894 (9th Cir. 1991), overruled in part on
other grounds, King, 687 F.3d at 1189, for example, the court
listed six facts of which the police were aware that, in
combination, were “just barely” “sufficient to give the police
probable cause to believe that [the defendant] resided” at the
residence searched. Id. at 896–97. One of those facts was
that the police observed the defendant enter the residence
with a key “once or twice during a three day period.” Id. at
896. But the police also knew that: (1) the defendant’s family
leased the home; (2) his brothers lived there; (3) according to
an uncorroborated source, the defendant lived there, too; (4)
before he had been released from prison, he had lived with his
family, “suggesting that he had no independent residence and
would resume living with them upon his release”; and (5) the
defendant’s “known associates” parked their cars at the
family’s home. Id. at 896. Harper’s approach to the
probable cause analysis reinforces “just how stringent this
standard is.” See Howard, 447 F.3d at 1262.

    Here, the Officers saw Grandberry using a key to enter
the residence in question more times than in Harper
(although with about the same frequency, given the period of
observation). The number of times Grandberry used the key,
however, is of relatively little additional probative value in
assessing whether the apartment in question was
Grandberry’s residence, as compared to the fact that, as in
Harper, someone entrusted him with a key in the first place.
But people other than residents are often entrusted with
             UNITED STATES V. GRANDBERRY                  23

access to homes — for example, people performing house-
keeping or repair work, or childcare or in-home health
services. Here, as the district court noted, key access is as
consistent with the apartment’s use as the location of a drug
business as it is with its being Grandberry’s residence.

    Grandberry’s key access to the Arlington apartment
would not, without more, lead a reasonably prudent person to
believe that he lived there. And the other factors —
especially the considerations that Grandberry was not seen at
the Arlington apartment during the Officers’ nighttime
surveillance, and there was no basis for doubting that
Grandberry lived where he had reported he did, on South
Manhattan Place — point strongly in the opposite direction.
We therefore conclude that under our “relatively stringent”
standard, the Officers lacked probable cause to conclude that
Grandberry lived at the Arlington apartment that they
searched.

                             B.

    The government also argues that regardless of whether the
Officers had probable cause to believe that Grandberry lived
at the Arlington apartment, the search was nonetheless
permitted under the provision of Grandberry’s search
condition authorizing searches of “any property under [his]
control.” As the government reads the search condition, the
search was justified because the Arlington apartment was real
“property under [Grandberry’s] control,” with the control
24               UNITED STATES V. GRANDBERRY

evidenced by Grandberry’s repeated entry to the building
with keys.10

    Assuming, without deciding, that Grandberry exhibited a
sufficiently strong connection to the apartment to demonstrate
“control” over it, we conclude that an expansive
understanding of the “property under your control” condition,
if applied to residential locations, cannot coexist with our


     10
       Grandberry argues that the government forfeited this argument
because the prosecutor (1) failed to brief it before the hearing on the
motion to suppress; and (2) affirmatively disavowed the argument at that
hearing, stating “we’re not sure that the ‘property under your control’
language would actually apply to residences, which is probably why the
parties did not frame it like [t]hat.” The government soon thereafter,
however, disavowed the disavowal, submitting a supplemental brief on the
issue. Grandberry, in turn, filed a response, arguing that the government’s
argument was forfeited because it was raised after the evidentiary hearing,
but also responding to the government’s motion on the merits, proffering
several exhibits in support. The district court acknowledged the
supplemental briefs in an order filed the next month, and afforded the
government an opportunity to reply to Grandberry’s newly introduced
evidence; the government did not do so. So in the end, the issue was
“‘raised sufficiently for the [district] court to rule on it.’” See Walsh v.
Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (quoting
Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992)).

     But the district court did not address the “property under . . . control”
issue in its final suppression order. Whether that was due to an oversight
or a conclusion that the issue was not properly raised, we do not know.
Although the district court would almost certainly have had the discretion
to refuse to entertain an issue first raised after the briefing and hearing on
the motion to suppress — and after an express disavowal of the argument
in open court — we cannot tell whether that is what the court did. We
therefore choose to decide the question — which was fully briefed before
us — rather than declaring it forfeited. See Whittaker, 953 F.2d at 515
(considering the merits of an issue that the district court had the
“opportunity to review,” but “declined to”).
             UNITED STATES V. GRANDBERRY                   25

longstanding probable-cause-as-to-residence requirement. As
we are bound by our precedent, we conclude that the
“property under your control” provision cannot refer to a
place where someone else, but not the parolee, lives.

    In Motley, the California parolee on whose search
condition the officers sought to rely was subject to a similar
condition to Grandberry’s, authorizing searches of “his
person, residence, and any property under his control.”
432 F.3d at 1075. (In fact, California has mandated such a
search condition for all of its parolees since 1977. See Cal.
Code Regs. tit. 15, § 2511(b) & history (2012).) In Cuevas,
the parolee on whose condition the searching officers relied
was also a California parolee, see 531 F.3d at 730, and
therefore subject to the same condition as Grandberry.

    Notwithstanding the “any property” provisions applicable
in those cases, Motley and Cuevas stated our probable-cause-
as-to-residence rule as a requirement that must be
independently satisfied to justify any warrantless search of a
house or other residence pursuant to a parole condition:

       [W]e hold that before conducting a
       warrantless search 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.

Motley, 432 F.3d at 1080.

       [A]bsent such probable cause, ‘[n]othing in
       the law justifies the entry into and search of a
       third person’s house to search for the parolee.’
26               UNITED STATES V. GRANDBERRY

Cuevas, 531 F.3d at 732 (quoting Motley, 432 F.3d at 1079).
Similarly, in Mayer, we explained unequivocally that
“[b]efore law enforcement officers may conduct a warrantless
probation search,” even if they have reasonable suspicion of
wrongdoing, “they must also have probable cause to believe
that the probationer actually lives at the residence searched.”
560 F.3d at 957 (emphasis added).

    Under Motley, Cuevas, and Mayer, the probable-cause-as-
to-residence requirement does not admit of the loophole that
the government urges. Confirming the understanding
underlying our precedents, we observe that the government
has cited no case — and we have found none — applying the
“property under your control” search condition to a residence.
Instead, the fairly large number of cases applying that term
uniformly involve searches either of vehicles or of items
found in a residence. See, e.g., People v. Schmitz, 55 Cal. 4th
909, 913, 916 (2012) (search of shoes and bag of chips in the
backseat of a car); People v. Boyd, 224 Cal. App. 3d 736,
740, 750–51 (1990) (search of handbag inside a trailer)11;
People v. Montoya, 114 Cal. App. 3d 556 (1981) (search of
pants pockets found in a living room); Hernandez v. Super.
Ct., 110 Cal. App. 3d 355, 365–66 (1980) (search of a
vehicle).



  11
     Boyd states in passing that the police in that case “decided to search
[a parolee’s] residence . . . pursuant to” a search clause “stat[ing] that [his]
“property ‘and any property under his control can be searched without a
warrant.’” 224 Cal. App. 3d at 740. But the only issue presented in that
case was whether once inside a trailer, the officers had a sufficient basis
for believing that a handbag belonged to the defendant, a non-parolee. See
id. at 742. There was no challenge to the entry into the trailer, and so no
occasion to consider whether that entry was in fact authorized by the
quoted language.
                  UNITED STATES V. GRANDBERRY                                27

    Moreover, the government’s proposed reading of
Grandberry’s search condition would violate “one of the most
basic interpretive canons, that ‘a statute [or regulation] should
be construed so that effect is given to all its provisions, so
that no part will be inoperative or superfluous, void or
insignificant.’” See Corley v. United States, 556 U.S. 303,
314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004));
In re Estate of Covington, 450 F.3d 917, 924 (9th Cir. 2006)
(applying that interpretive canon to regulations).12 Reading
“property under . . . control” to include residences would
render the separate “your residence” term a nullity. There
would simply have been no reason to include “your
residence” in the mandatory condition if residences were
covered by “property under your control.”13

   Our limited reading of the “property under . . . control”
condition in Grandberry’s search condition also conforms to
the doctrinal underpinnings of the probable-cause
requirement, which implements the “special protection”
“accord[ed] . . . to the home” under the Fourth Amendment.


  12
    As noted, the search condition at issue here is imposed uniformly on
California parolees pursuant to a statutory and regulatory scheme. See
Cal. Penal Code § 3067(b)(3) (2012); Cal. Code Regs. tit. 15, § 2511(b)(4)
(2013).
       13
       The California Department of Corrections and Rehabilitations
(CDCR)’s own explanation of the condition is consistent with this
understanding of the phrase “property . . . under control”: “Simply stated,
the standard conditions of parole are [that] . . . the parolee, their residence,
and possessions can be searched at any time of the day or night . . . .” See
Cal. Dep’t of Corrections & Rehab., Parolee Conditions,
http://www.cdcr.ca.gov/Parole/Parolee_Conditions/index.html                 (last
visited Sept. 10, 2013). Lopez suggested the same understanding,
summarizing the condition as giving notice that a parolee’s “person, his
property, and his residence were subject to” search. See 474 F.3d at 1213.
28              UNITED STATES V. GRANDBERRY

See United States v. Johnson, 457 U.S. 537, 552 n.13 (1982);
United States v. Duenas, 691 F.3d 1070, 1080 (9th Cir. 2012)
(citing United States v. Jones, 132 S. Ct. 945 (2012)). In
reaffirming our probable-cause-as-to-residence rule, we
explained in Motley that “[r]equiring officers to have
probable cause to believe that a parolee resides at a particular
address prior to conducting a parole search protects the
interest of third parties.” 432 F.3d at 1080. The building
searched here was, by all appearances, a residential apartment
building. The Officers’ declarations repeatedly describe the
Arlington address as an “apartment building,” and
photographs of the building depict numbered mailboxes each
marked with individuals’ names (photographs of the
building’s exterior).14 The Officers explained that they
searched the apartment on the understanding that Grandberry
lived there, not on some other basis. Were we to permit a
search of the apartment in violation of the Motley
“requirement, we [would] risk diminishing the Fourth
Amendment protections owed to the [actual] homeowner.”
Id. at 1079. As “[t]he Fourth Amendment’s protection
against unreasonable searches in a person’s home is not
diminished by the mere presence of a guest,” see id. (internal
quotation marks omitted), the government’s proposed reading
of the search condition threatens to eviscerate the privacy
interests of non-parolees in the home, where Fourth
Amendment rights are “sacrosanct,” see Duenas, 691 F.3d at
1080.




 14
    For these reasons, this case does not present the question whether the
search of non-residential real “property” “under” a parolee’s “control,”
such as a storefront or warehouse, could be justified under the terms of
this search condition.
              UNITED STATES V. GRANDBERRY                      29

    We conclude that where, as here, it is abundantly clear
that the searched property is a residence, a parole condition
permitting searches of “your residence and any property
under your control” is triggered only when the officers have
probable cause that the parolee lives at a residence.

                       CONCLUSION

    For the foregoing reasons, we affirm the district court’s
grant of Grandberry’s motion to suppress, and remand for
further proceedings.

    AFFIRMED.



WATFORD, Circuit Judge, concurring:

     Do parolees have a greater expectation of privacy in
someone else’s home than they have in their own home? I
can’t think of any reason why they should. Yet that is the
rule we established in United States v. Howard, 447 F.3d
1257 (9th Cir. 2006), which we, as a three-judge panel, are
bound to follow here. For the reasons the court explains,
faithful application of Howard requires us to affirm the
district court’s suppression ruling. But, like the district court,
I think that decision is unsound and warrants reexamination.

    Although once open to debate, it’s now settled that a
criminal defendant may seek suppression of evidence
discovered during an illegal search only if the defendant’s
own Fourth Amendment rights were violated. Rawlings v.
Kentucky, 448 U.S. 98, 104–06 (1980); Rakas v. Illinois,
439 U.S. 128, 133–34 (1978). A defendant may not
30            UNITED STATES V. GRANDBERRY

vicariously assert the Fourth Amendment rights of others.
Alderman v. United States, 394 U.S. 165, 174 (1969). Thus,
the Supreme Court has held, a defendant generally cannot
seek suppression of evidence discovered during an illegal
search of an acquaintance’s purse, or of a friend’s car in
which the defendant is merely a passenger. Rawlings,
448 U.S. at 106; Rakas, 439 U.S. at 148–49.

    Had the warrantless search at issue here occurred at Mr.
Grandberry’s own home, he would not have been able to seek
suppression of the evidence. As a parolee subject to
California’s standard condition authorizing warrantless,
suspicionless searches of his residence, Mr. Grandberry has
no legitimate expectation of privacy in his own home. See
United States v. Lopez, 474 F.3d 1208, 1213 (9th Cir. 2007),
overruled in part on other grounds by United States v. King,
687 F.3d 1189 (9th Cir. 2012) (en banc). That’s true
notwithstanding the fact that, among the places protected by
the Fourth Amendment, “the home is first among equals.”
Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013). Nowhere
is an individual’s claim to a legitimate expectation of privacy
stronger than in her own home. See, e.g., Kyllo v. United
States, 533 U.S. 27, 31, 37 (2001). So, one might ask, if a
parolee’s expectation of privacy in his own home is nil, how
could he have an expectation of privacy in someone else’s
home?

    The only answer I’ve heard is that Minnesota v. Olson,
495 U.S. 91 (1990), supposedly so provides. There the
Supreme Court held that an overnight guest has a legitimate
expectation of privacy in her host’s home. Id. at 96–97. But
that case does not help parolees who are overnight guests in
someone else’s home. As the Fifth Circuit has explained,
“Olson simply extends to the houseguest the Fourth
             UNITED STATES V. GRANDBERRY                   31

Amendment rights he would have in his own home.” United
States v. Taylor, 482 F.3d 315, 318 (5th Cir. 2007). Since
parolees subject to California’s warrantless search condition
have no Fourth Amendment rights in their own homes, they
have no legitimate expectation of privacy they can take with
them to anyone else’s home. See id. at 319.

    That does not mean, of course, that the host’s Fourth
Amendment rights are in any way diminished. If the police
conduct a warrantless search of the host’s home, on the
unsupported belief that the parolee resides there, the host’s
Fourth Amendment rights are undoubtedly violated. The host
could seek suppression of any evidence the government tried
to use against him in a subsequent criminal prosecution, and
could pursue a civil action against the offending officers
under 42 U.S.C. § 1983 or state tort law. See Motley v.
Parks, 432 F.3d 1072 (9th Cir. 2005) (en banc), overruled in
part on other grounds by United States v. King, 687 F.3d
1189 (9th Cir. 2012) (en banc). But the parolee cannot seek
suppression of evidence discovered during an illegal search
of the host’s home, because the parolee’s own Fourth
Amendment rights were not violated. Taylor, 482 F.3d at
319; see Rakas, 439 U.S. at 134.

    The principle that a defendant can’t assert greater Fourth
Amendment rights in someone else’s home than she has in
her own home has been around for some time. In fact, we
held exactly that while sitting en banc thirty years ago: “A
person has no greater right of privacy in another’s home than
in his own.” United States v. Underwood, 717 F.2d 482, 484
(9th Cir. 1983) (en banc); see also United States v. Buckner,
717 F.2d 297, 300 (6th Cir. 1983) (“It would be illogical to
afford the defendant any greater protection in the home of a
third party than he was entitled to in his own home.”). To be
32            UNITED STATES V. GRANDBERRY

sure, the context there was different. Like the Sixth Circuit
in Buckner, we were explaining why, under Payton v. New
York, 445 U.S. 573 (1980), and Steagald v. United States,
451 U.S. 204 (1981), a defendant’s own Fourth Amendment
rights were not violated when the police entered a third
party’s home without a search warrant to arrest the defendant.
The defendant could not seek suppression of evidence
discovered in the third party’s home, we held, because the
police had a warrant for the defendant’s arrest and thus, under
Payton, could have entered the defendant’s own home
without a search warrant to arrest him there. Underwood,
717 F.2d at 483–84. Despite the difference in context, I see
no reason why the principle established in Underwood should
not apply with equal force to defendants whose homes are
subject to warrantless, suspicionless searches by virtue of
their status as parolees.

    The only other observation I would add is the one Judge
Noonan made in his concurrence in Howard. He rightly
observed that the effect of our holding in that case is to give
parolees who’ve decided to re-offend a “safe house” for
storing contraband and conducting illicit activities. Howard,
447 F.3d at 1269 (Noonan, J., concurring, dubitante). This
case is a perfect illustration of that phenomenon: Mr.
Grandberry, intent on resuming his drug-trafficking activities,
set up shop in his girlfriend’s apartment and stored his drugs
and firearm there. After all, if you’re on parole, why take a
chance stashing contraband at your own residence when you
can easily do so at someone else’s, safe from warrantless
police searches so long as you occasionally stay there
overnight? Allowing parolees to establish these sorts of safe
houses surely frustrates the State’s legitimate interest in
supervising parolees to reduce recidivism, protect public
              UNITED STATES V. GRANDBERRY                     33

safety, and promote reintegration into productive society. See
Samson v. California, 547 U.S. 843, 853–54, 856 n.4 (2006).

    In short, Howard is a decision ripe for reconsideration.
We engaged in no Fourth Amendment analysis there to
support the rule we adopted; in fact, we did not so much as
cite Minnesota v. Olson, 495 U.S. 91 (1990), the only
Supreme Court decision on which our rule could have been
grounded. See Howard, 447 F.3d at 1262. In addition, we
decided that case before the Supreme Court decided Samson,
which clarified that parolees have “severely diminished
expectations of privacy by virtue of their status alone,” and
that the State has “substantial” interests in subjecting parolees
to “privacy intrusions that would not otherwise be tolerated
under the Fourth Amendment.” Samson, 547 U.S. at 852,
853. If we’re going to adhere to the rule we adopted in
Howard, we should do so after squarely confronting and
resolving the doctrinal inconsistencies that rule seems to
create.



BERZON, Circuit Judge, concurring:

    I write separately to respond to Judge Watford’s
suggestion that applying United States v. Howard, 447 F.3d
1257 (9th Cir. 2006), here permits a parolee to assert greater
Fourth Amendment protection in someone else’s home than
in his own and is “unsound and warrants reexamination.”
Conc. at 29.

   In my view, our outcome is compelled not solely by
Howard, but also by the text of Grandberry’s parole search
conditions, which allow suspicionless searches of only the
34            UNITED STATES V. GRANDBERRY

parolee’s person, his residence, and property under his
control. There is no provision permitting parole searches of
other people’s houses in which a parolee is an overnight
visitor but where he does not reside. Thus, to the degree
Grandberry has more substantive protection with regard to
searches of his surroundings — but not of his person,
assuming proper entry — in other people’s houses, that
difference stems largely from California law, as do the
“doctrinal inconsistencies,” id. at 33, that trouble Judge
Watford.

    California may have good reason to tie its own hands with
regard to parole searches. The State has an interest protecting
the privacy of its law-abiding citizens from intrusion on the
basis of simple association with a parolee. To allow
suspicionless searches of any residence in which a parolee is
found threatens the privacy of family, friends, and others who
advance the State’s interest in “reintegrati[ng] parolees into
productive society.” Samson v. California, 547 U.S. 843, 854
(2006). Just as a “cooperative occupant’s invitation adds
nothing to . . . counter the force of an objecting individual’s
claim to security against the government’s intrusion into his
dwelling place,” Georgia v. Randolph, 547 U.S. 103, 115
(2006), California has chosen not to allow the diminished
privacy interest of one individual to undermine that of
another.

    Judge Watford suggests that this third-party substantive
interest can be accommodated by allowing a non-parolee
whose home is searched to have standing to sue (or to invoke
the exclusionary rule if prosecuted). This approach would
run into a second line of authority, that derived from
Minnesota v. Olson, 495 U.S. 91 (1990), which provides an
              UNITED STATES V. GRANDBERRY                   35

ordinary overnight guest sufficient privacy interest in a
residence to establish Fourth Amendment standing.

    Olson recognized that a guest has a lesser privacy interest
in a home in which he is a guest than in his own home, id. at
99, because the host has ultimate control over the residence,
including who may enter it and whether the guest may stay.
Nonetheless, Olson held an overnight guest’s privacy interest
strong enough to give rise to Fourth Amendment standing,
because

       [t]he host may admit or exclude from the
       house as he prefers, but it is unlikely that he
       will admit someone who wants to see or meet
       with the guest over the objection of the
       guest. . . .The point is that hosts will more
       likely than not respect the privacy interests of
       their guests, who are entitled to a legitimate
       expectation of privacy despite the fact that
       they have no legal interest in the premises and
       do not have the legal authority to determine
       who may or may not enter the household.

Id. The parole conditions required in California and imposed
on Grandberry do not undermine the limited privacy
expectation on which Olson rests, precisely because they
apply only to Grandberry’s person, residence, and the
property he controls.

    There is simply no precedent for precluding an individual
from challenging a search in a location in which the search is
indeed unconstitutional as to the resident, and the individual
would have standing under Olson, and there is no condition
or circumstance limiting his privacy interest as to that
36            UNITED STATES V. GRANDBERRY

location. In short, if there is an anomaly here, it is Olson, and
not our precedent. And, of course, we are obliged to follow
Olson.
