                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 20 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50473

              Plaintiff-Appellee,                D.C. No. 3:14-cr-00502-H-1

 v.
                                                 MEMORANDUM*
FRANCISCO GUTIERREZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                           Submitted October 17, 2016**
                               Pasadena, California

Before: TALLMAN and CHRISTEN, Circuit Judges, and KENNELLY,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
         Francisco Gutierrez appeals the district court’s order denying his motion to

suppress evidence of a firearm and ammunition seized after a warrantless search of

his residence. We review de novo the district court’s decision whether to suppress

evidence and review for clear error the district court’s factual findings supporting

its conclusion. United States v. Grandberry, 730 F.3d 968, 970–71 (9th Cir. 2013).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s

order.

         1. Officers may conduct a warrantless search if a parolee is subject to a

warrantless search provision and the officers have probable cause to believe the

parolee lives at the address to be searched. Grandberry, 730 F.3d at 973.

“[P]robable cause as to residence exists if an officer of ‘reasonable caution’ would

believe, ‘based on the totality of [the] circumstances,’ that the parolee lives at a

particular residence.” Id. at 975 (quoting United States v. Diaz, 491 F.3d 1074,

1077–78 (9th Cir. 2007)).

         2. Gutierrez was subject to a warrantless search provision. The district

court properly considered the totality of the circumstances in denying his motion to

suppress. It reasonably concluded that an officer of reasonable caution would

believe that Gutierrez, a parolee at large, lived at the apartment in question.

Specifically, the court noted that (1) officers directly observed Gutierrez leaving


                                            2
the apartment early in the morning to take three children to day care (2) officers

obtained GPS data placing Gutierrez’s cell phone in the apartment and (3)

Gutierrez’s girlfriend told officers that she and Gutierrez had lived together in the

apartment for several months—and then provided law enforcement with a key to

that apartment. In light of the analysis discussed in Grandberry, and viewing the

evidence “cumulatively rather than independently[,]” this is sufficient to establish

probable cause at the time of the search. Id. at 976.

      AFFIRMED.




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