                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 17 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30429

              Plaintiff - Appellee,              D.C. No. 2:09-cr-02037-EFS-1

  v.
                                                 MEMORANDUM *
HORSLEY THEROW SOHAPPY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                       Argued and Submitted August 5, 2010
                               Seattle, Washington

Before: CANBY, THOMPSON and BERZON, Circuit Judges.


       Horsley Therow Sohappy appeals the district court’s denial of his motion to

suppress evidence law enforcement officers seized during the search of a residence.

We reverse.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The officers did not have probable cause to believe that Sohappy was living

at the searched residence. The single failed attempt to locate Sohappy at his listed

residence was insufficient to suggest he was living elsewhere. See United States v.

Howard, 447 F.3d 1257, 1266 (9th Cir. 2006). That Sohappy failed to report to his

probation officer the morning after he was released does not establish probable

cause as to where he was living.

      Second, the information provided by Diaz during his post-arrest interview

was only minimally pertinent. Diaz was jailed two days after Sohappy was

released. So he could have known, at most, that Sohappy spent two nights at the

searched residence. Moreover, in light of their history of altercations, Diaz had

good reason to falsify information about Sohappy. Subsequent corroborating

information confirmed only that Sohappy had visited the residence, not that he was

living at the residence.

      Third, that Officer Hisey had previously contacted Sohappy at the searched

address is not evidence of residency there. The record does not indicate how

recently the contact occurred, and Sohappy had subsequently provided updated

contact information. See Howard, 447 F.3d at 1267 (“[T]he mere fact that [an

officer] had visited [the defendant] there in early February was not sufficient to

create probable cause that [the defendant] lived there at the end of March.”);


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Cuevas v. De Roco, 531 F.3d 726, 734 (9th Cir. 2008) (holding out-of-date

residency information did not support a probable cause determination when more

recent records indicated the defendant lived at a different residence).

      Fourth, Luna, Mora’s mother, told Officer Nelson that Sohappy was a friend

of her family and had been at the residence the night before, but was not staying

there. Suspicion that Luna’s denial is not credible because of her relationship to

Sohappy requires an inference that Luna understood that an admission of

Sohappy’s residency at the address would be more incriminating than her

admission that Sohappy was recently present at the residence. While not an

impossible inference, it is at least an unlikely one, absent some reason to believe

Luna was quite legally sophisticated.

      Finally, that Mora ultimately admitted Sohappy was inside the residence at

the time of the search speaks to Sohappy’s presence at the address, not his

residency there. Evidence of mere presence at a residence, standing alone, is

insufficient to establish probable cause that an individual under community

supervision is living at the residence. See Howard, 447 F.3d at 1267–68.

      We also conclude that the search of the residence was not justified by

“reasonable cause” to believe that Mora violated one of her community supervision

conditions. Mora’s refusal to identify the individual inside the residence was not


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necessarily a failure to “abide by [an] . . . instruction,” as her supervision

agreement required her to do. The officer’s inquiry as to who was present in the

residence did not itself constitute a “verbal instruction.” Ordinarily, when asked a

question, we may decline to answer it. That Mora was a parolee does not change

this basic linguistic convention. Absent an explicit directive to respond, her refusal

to answer did not constitute a failure to abide by an instruction.

      Any doubt as to whether to interpret the interaction with the officer as

including an instruction to answer the question posed is resolved by the Fifth

Amendment concerns raised by the government’s proposed interpretation of

Mora’s supervision condition. As Sohappy was in violation of his community

custody conditions and possibly in possession of a firearm, a response from Mora

posed a risk of self-incrimination for violation of various state criminal laws. See,

e.g., Wash. Rev. Code §§ 9A.76.050; 9A.76.080 (prohibiting harboring or

concealing, with the intent to delay apprehension, someone being sought for

violation of community supervision); Wash. Rev. Code § 9.41.040 (prohibiting

someone previously convicted of a felony from having a firearm in her control).

Accordingly, requiring her to identify the individual inside the residence could

constitute a state practice improperly penalizing Mora’s exercise of her Fifth

Amendment privilege. See Minnesota v. Murphy, 465 U.S. 426, 435 (1984);


                                           -4-
United States v. Saechao, 418 F.3d 1073, 1075 (9th Cir. 2005). “[T]he State could

not constitutionally carry out a threat to revoke probation for the legitimate

exercise of the Fifth Amendment privilege.” Murphy, 465 U.S. at 438. We

therefore decline to interpret Mora’s supervision condition as requiring her to

answer the officer’s questions regarding Sohappy.

      Nor could the officer’s mistaken interpretation of Mora’s supervision

agreement justify the search. An erroneous understanding of the law cannot

establish reasonable cause to believe Mora violated a supervision condition. See

Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004).

      We conclude that Officer Nelson did not have “reasonable cause” to believe

Mora violated a supervision condition.

      The judgment of the district court is REVERSED and the plea of guilty is

VACATED.




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