FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-30029
Plaintiff-Appellee,
v. D.C. No.
CR-05-00034-BLW
RONALD RAY DIAZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
December 5, 2006—Portland, Oregon
Filed June 22, 2007
Before: Jerome Farris, Richard R. Clifton, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Clifton
7545
UNITED STATES v. DIAZ 7547
COUNSEL
Nicolas V. Vieth, Federal Defenders of Eastern Washington
and Idaho, Pocatello, Idaho, for the appellant.
Thomas E. Moss, United States Attorney; Alan G. Burrow,
Assistant United States Attorney (briefed and argued), Boise,
Idaho, for the appellee.
7548 UNITED STATES v. DIAZ
OPINION
CLIFTON, Circuit Judge:
Government agents had a valid warrant to arrest Ronald
Ray Diaz. They went to his house to arrest him, thinking he
was home one weekday afternoon, as he had been in the past.
When he didn’t respond they broke through the door and
entered the house on their own, but Diaz wasn’t there and nei-
ther was anybody else. Inside the house, the agents discovered
incriminating evidence. That evidence became the subject of
a motion to suppress, denied by the district court, now before
us on appeal.
The question we must consider is whether the agents, who
had an arrest warrant but no search warrant at the time they
entered the house and first spotted the evidence, had sufficient
reason to believe Diaz was home to justify the entry.1 If not,
then they violated the Fourth Amendment by entering the
house, and the evidence discovered in the subsequent search
was inadmissible against Diaz.
The district court ruled that the agents had sufficient reason
to believe Diaz was at home and therefore did not violate his
constitutional rights when they entered. We agree and affirm
the district court’s denial of Diaz’s motion to suppress.
I. Background
Diaz lived on the Fort Hall Indian Reservation in Idaho. He
had previously been convicted of assault, battery with intent
to commit rape, and failure to register as a sex offender. He
worked from home as a mechanic and often had several cars
at the house. He protected his property with dogs and security
cameras.
1
We address other issues that Diaz raised in a separately filed memoran-
dum disposition.
UNITED STATES v. DIAZ 7549
In July 2003, police visited Diaz’s home and asked to look
around. Diaz consented. In Diaz’s bedroom the police discov-
ered an assault rifle and a “snort tube” used to inhale metham-
phetamine. Police also found a bong and marijuana rolling
papers in Diaz’s kitchen. The snort tube and bong both tested
positive for traces of methamphetamine.
The police went back to the house three or four more times
over the next 18 months. Diaz usually answered the door,
though once he took about 45 minutes to do so. Other people
and many cars, including Diaz’s own black sport utility vehi-
cle, were usually there, though Diaz was sometimes there
when his car was not. Diaz told the officers they could usually
find him at his house during the day, and in fact they usually
did. Between July 2003 and January 2005, Diaz was absent
only once when the officers went to his house.
On February 23, 2005, a grand jury charged Diaz with (1)
being a drug user in possession of a firearm in violation of 18
U.S.C. § 922(g)(3), and (2) being a convicted felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1). A war-
rant was issued for Diaz’s arrest. That afternoon, officers
from several government agencies converged on Diaz’s
house. Before knocking on the door, the agents tried to survey
the house for some sign Diaz was there. Barking dogs and
security cameras impeded their efforts, so the officers resorted
to driving by the house a few times. On one of those passes,
an agent saw two unidentified people standing next to a red
SUV. Diaz’s black SUV was not in sight. Officers would later
discover it in a nearby shed.
The agents surrounded the Diaz property. Within a few
minutes, the red SUV drove away. The agents did not stop it.
They did not identify who was driving and thought only one
person was inside the vehicle; they surmised that the other
person was still in Diaz’s house.
After an hour and a half, the agents approached Diaz’s
house. They could not see inside because blankets covered the
7550 UNITED STATES v. DIAZ
windows. The agents knocked on the door, announced their
presence, and waited a reasonable time. No one answered.
The agents used force on the door and entered.
Inside, they found no one, but one agent saw a plastic bag-
gie, containing what appeared to be illegal drugs, in Diaz’s
bedroom. The agents left the house, obtained a search war-
rant, and went back inside. In the subsequent search they
seized a bag of methamphetamine and some drug equipment.
After discovering Diaz was not at home, the agents checked
a nearby casino. They found Diaz there with his wife, Jamie,
and arrested him.
Diaz filed a motion to suppress the evidence found during
the February 2005 search. He argued that the agents exceeded
the authority of their arrest warrant by entering his home
when they had no reason to believe he was there. The district
court denied Diaz’s motion after hearing testimony from gov-
ernment agents, Jamie Diaz, and Diaz himself. The court con-
cluded that the agents had enough experience with Diaz to
reasonably conclude that he was home, and that the presence
of dogs, cameras, and blankets made it impossible for them to
conclude he was not at home.
A jury eventually convicted Diaz on both counts. Diaz
appealed, arguing that the district court erred in allowing the
government to introduce evidence from the February 2005
search.
II. Discussion
We review de novo the district court’s denial of Diaz’s
motion to suppress. See United States v. Decoud, 456 F.3d
996, 1007 (9th Cir. 2006); United States v. Adjani, 452 F.3d
1140, 1143 (9th Cir. 2006). We review the district court’s fac-
tual findings for clear error. United States v. Howard, 447
UNITED STATES v. DIAZ 7551
F.3d 1257, 1262 n.4 (9th Cir. 2006); United States v. Thomas,
447 F.3d 1191, 1196 n.7 (9th Cir. 2006).
A. The “reason to believe” standard
[1] An arrest warrant gives government agents limited
authority to enter a suspect’s home to arrest him if they have
“reason to believe” he is inside. Payton v. New York, 445 U.S.
573, 603 (1980). The phrase “reason to believe” is inter-
changeable with and conceptually identical to the phrases
“reasonable belief” and “reasonable grounds for believing,”
which frequently appear in our cases. See United States v.
Gorman, 314 F.3d 1105, 1111 n.4 (9th Cir. 2002) (listing
examples of the three phrases’ use and noting their identical
meaning). The question of what constitutes an adequate “rea-
son to believe” has given difficulty to many courts, including
the district court in the present case.2 The Supreme Court did
not elaborate on the meaning of “reason to believe” in Payton
and has not done so since then.
[2] We have not often discussed the issue of what consti-
tutes a reason to believe a suspect is home, such that officers
may enter his home to arrest him. See, e.g., Gorman, 314 F.3d
at 1110-15; Case v. Kitsap Cty. Sheriff’s Dept., 249 F.3d 921,
930-31 (9th Cir. 2001); United States v. Litteral, 910 F.2d
547, 553-54 (9th Cir. 1990).3 In Gorman, we held that to
2
During the hearing on Diaz’s motion to suppress, the district court
encouraged an appeal because “the standard is uncertain and it would be
of great help perhaps to the trial courts if there were some sort of — if
there was some further development in this area.”
3
Several “reason to believe” cases discuss whether the police have rea-
son to believe that the home they are entering is actually the suspect’s
home, which obviates the need for a search warrant. See, e.g., Steagald v.
United States, 451 U.S. 204, 211-17 (1981); Watts v. County of Sacra-
mento, 256 F.3d 886, 889-90 (9th Cir. 2001); United States v. Underwood,
717 F.2d 482, 483-87 (9th Cir. 1983) (en banc). Since Diaz does not argue
that police had no reason to believe his home actually was his home, these
cases are pertinent to the present case only insofar as they discuss the con-
cept of reasonable belief.
7552 UNITED STATES v. DIAZ
decide whether police have reason to believe a suspect is at
a particular place, a court must use “the same standard of rea-
sonableness inherent in probable cause.” 314 F.3d at 1112.
[3] The Supreme Court described the standard of reason-
ableness inherent in probable cause in Brinegar v. United
States, 338 U.S. 160, 175-76 (1949): “Probable cause exists
where ‘the facts and circumstances within their (the officers’)
knowledge and of which they had reasonably trustworthy
information (are) sufficient in themselves to warrant a man of
reasonable caution in the belief that’ an offense has been or
is being committed.” Id. (quoting Carroll v. United States,
267 U.S. 132, 162 (1925)) (parentheses in original). In this
inquiry, common sense is key. In deciding whether there is
probable cause to issue a search warrant, a judicial officer
must weigh “the factual and practical considerations of every-
day life on which reasonable and prudent men, not legal tech-
nicians, act.” Brinegar, 338 U.S. at 175. In a modern take on
these core concepts, we have held that probable cause means
a “ ‘fair probability that contraband or evidence of a crime
will be found in a particular place,’ based on the totality of
circumstances.” Dawson v. City of Seattle, 435 F.3d 1054,
1062 (9th Cir. 2006), quoting Illinois v. Gates, 452 U.S. 213,
238 (1983).
[4] In Gorman, we held that this standard of reasonableness
must apply in the reason-to-believe setting. A common-sense
analysis of the “totality of the circumstances” is therefore cru-
cial in deciding whether an officer has a reason to believe a
suspect is home. See, e.g., United States v. Magluta, 44 F.3d
1530, 1535 (11th Cir. 1995) (in evaluating reasonable belief,
courts must be “sensitive to common sense factors indicating
a resident’s presence”).
B. Application to Diaz’s case
[5] The district court found that government agents had
enough information to reasonably believe Diaz was home
UNITED STATES v. DIAZ 7553
when they entered his house on February 23, 2005. We agree.
Diaz himself had told government agents that he was usually
home during the day. Agents also knew that Diaz worked at
home as a mechanic. Agents had visited Diaz’s home several
times before, and he was absent only one of those times. All
of this information suggests that Diaz, on an ordinary day,
would be home during daylight hours, which is when the
agents came to arrest him.
[6] Even so, Diaz argues that on the day of his arrest,
agents could not have reasonably believed he was home
because there were too many clues that he was gone. We dis-
agree. At most, there were some signs that Diaz might be
gone, but nothing so definite that it would be unreasonable to
think Diaz was home. Agents did not see Diaz on his prop-
erty, but that was not surprising: Diaz had covered his win-
dows with blankets, and the dogs and surveillance cameras
prevented the agents from safely and unobtrusively observing
the property. No one answered the door when the agents
knocked, but Diaz once had taken about 45 minutes to answer
the door. Diaz’s black SUV was not in view, but agents had
previously encountered Diaz at the house without seeing his
car, so its absence did not mean Diaz was not at home. In fact,
agents later found the SUV in a nearby shed. A red SUV
drove away from the house while the agents watched, but they
did not recognize the SUV. Furthermore, they only saw one
unidentified person in the SUV, and they had seen two people
in front of Diaz’s house. They assumed that one person
remained, and they assumed that it was Diaz. It is hard to
blame the agents for not stopping the car: They believed Diaz
was still in his house, and they knew Diaz received frequent
visitors during the day.
[7] Diaz also argues that reasonable belief cannot exist
unless the government has some specific evidence that the
suspect is present at the particular times that officers come to
arrest him. We disagree with that proposition, as well. People
draw “reasonable” conclusions all the time without direct evi-
7554 UNITED STATES v. DIAZ
dence. Indeed, juries frequently convict defendants of crimes
on circumstantial evidence alone. See, e.g., United States v.
Yoshida, 303 F.3d 1145, 1151 (9th Cir. 2002) (“[C]ircumstan-
tial evidence can form a sufficient basis for conviction.”)
Likewise, a probable cause determination can be supported
entirely by circumstantial evidence. See, e.g., United States v.
Spearman, 532 F.2d 132 (9th Cir. 1976) (circumstantial evi-
dence may justify search warrant). If juries can find someone
guilty beyond a reasonable doubt without direct evidence, and
magistrates can issue search warrants without direct evidence,
police surely can reasonably believe someone is home without
direct evidence.
III. Conclusion
[8] We conclude that the district court did not err in deny-
ing Diaz’s motion to suppress the evidence that government
agents discovered in his home. The district court found, under
the totality of the circumstances, that the agents had reason to
believe Diaz was home when they went to arrest him. That
finding was not erroneous. The officers had reliable informa-
tion that Diaz was usually at home during the day. Nothing
the agents observed made this belief unreasonable. Because
the agents had sufficient reason to believe Diaz was home and
entered pursuant to a valid arrest warrant, they did not violate
Diaz’s constitutional rights.
AFFIRMED.