FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30055
Plaintiff-Appellee, D.C. No.
v. 1:10-cr-00110-
SEAN PAUL BOLIVAR, BLW-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
January 11, 2012—Seattle, Washington
Filed February 29, 2012
Before: A. Wallace Tashima, Susan P. Graber, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Graber
2245
UNITED STATES v. BOLIVAR 2247
COUNSEL
Mark J. Ackley, Federal Defender Services of Idaho, Boise,
Idaho, for the defendant-appellant.
Christian S. Nafzger, Assistant United States Attorney, Boise,
Idaho, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Sean Paul Bolivar appeals the district court’s
denial of his motion to suppress evidence obtained during a
probation search. Following our holding in United States v.
Davis, 932 F.2d 752, 758 (9th Cir. 1991), the district court
held that, to support the search, the officers needed only a
“reasonable suspicion” to conclude that the probationer
owned, controlled, or possessed an item within the probation-
2248 UNITED STATES v. BOLIVAR
er’s residence. Defendant contends that the greater standard of
“probable cause” applies in these circumstances. Because our
holding in Davis has not been overruled and is not clearly
irreconcilable with any intervening case law, Miller v. Gam-
mie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc), we
affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendant resided in a one-bedroom apartment with Philine
Black. At the relevant time, Black was a probationer. As a
condition of probation, she had consented to a search of her
property by probation officers and police officers.
On March 18, 2010, police officers arrived at the apartment
with a probation-violation warrant for Black’s arrest. Black
let the officers into the apartment. Defendant was not present.
The police officers arrested Black and conducted a search
of the apartment. Along the bedroom wall were two closet
doors, about three or four feet apart. The doors led to a single
closet. The district court found that “[t]he interior closet space
was not divided, but there was a distinct break or space
between clothing hanging on the right side and clothing hang-
ing on the left side.” “[U]pon opening the right closet door,
[a police officer] encountered only men’s clothes.” The offi-
cers retrieved a purple backpack that was “hanging from a
hanger in the middle of the closet.” “The backpack was zip-
pered shut with no protrusions.” The officers opened the
backpack and discovered a “.12 gauge sawed-off shotgun
with a ten-inch barrel.” They questioned Black, who said that
the backpack belonged to Defendant.
The government indicted Defendant on several counts,
including one count of unlawful possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1). Defendant moved
to suppress the evidence of the firearm on the ground that the
UNITED STATES v. BOLIVAR 2249
police officers had violated his Fourth Amendment right to be
free from unreasonable searches.
The government argued that the warrantless search of the
backpack was justified by Black’s consent, through the terms
of her probation, to a search of her property. Defendant
argued that the search of the closed backpack fell outside the
scope of that consent, because the police lacked probable
cause to believe that the backpack belonged to Black, the pro-
bationer.
After a hearing, the district court denied the motion to sup-
press the firearm. The court held that the applicable legal
standard was “reasonable suspicion,” not the higher level of
“probable cause.” The court then held that “[t]he totality of
the circumstances show that [the police officer] had a reason-
able suspicion that the backpack was controlled by Black or
jointly controlled by Black and [Defendant],” primarily
because “the backpack was found in the middle of the interior
of the undivided closet, indicating that it could have been
placed there by Black, and also indicating it might be jointly
controlled by Black and [Defendant].”
Defendant then entered into a conditional plea agreement,
which the district court accepted. Defendant pleaded guilty to
unlawful possession of a firearm by a felon and waived most
of his constitutional rights. But he retained the right to appeal
the district court’s denial of his motion to suppress.
DISCUSSION1
Defendant does not challenge the search of the apartment.
Under applicable law and the terms of Black’s probation, the
police permissibly searched the apartment and Black’s pos-
sessions. See generally United States v. Knights, 534 U.S. 112
1
We review de novo the district court’s denial of a motion to suppress.
United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010).
2250 UNITED STATES v. BOLIVAR
(2001) (discussing warrantless searches of probationers’ resi-
dences). Instead, Defendant challenges the search of the back-
pack. He argues that, even though the officers validly
searched the apartment, the officers lacked probable cause to
believe that the backpack, which they encountered by opening
a closet door to a space containing men’s clothes, belonged to
Black.
On appeal, Defendant argues only that the district court
applied the wrong legal standard. He does not challenge the
district court’s determination—with which we agree—that,
viewing the totality of the circumstances, the officers had a
reasonable suspicion that Black exercised control over the
backpack.
[1] We previously have held that the applicable legal stan-
dard is “reasonable suspicion.” Davis, 932 F.2d at 758. In
Davis, as here, police officers searched a probationer’s resi-
dence pursuant to a term of probation permitting warrantless
searches, but another person also had joint control over the
premises. Id. at 755, 757. The officers in Davis searched a
safe inside the residence under circumstances that, like the
circumstances concerning the backpack here, arguably sug-
gested that the safe belonged to the non-probationer rather
than the probationer. Id. at 759. After analyzing the proper
legal standard to apply in these circumstances, we held “that
police must have reasonable suspicion[ ] that an item to be
searched is owned, controlled, or possessed by probationer, in
order for the item to fall within the permissible bounds of a
probation search.” Id. at 758.
[2] Because Davis is directly on point, it is controlling
unless it has been overruled or is clearly irreconcilable with
intervening case law. Miller, 335 F.3d at 899-900. Defendant
does not argue that a Supreme Court precedent has overruled
or eviscerated Davis, and we have not found a relevant case
that does so. Instead, Defendant contends that Davis effec-
UNITED STATES v. BOLIVAR 2251
tively was overruled by our en banc decision in Motley v.
Parks, 432 F.3d 1072, 1087 (9th Cir. 2005) (en banc).
In Motley, police officers conducted warrantless, suspicion-
less searches of certain parolees’ residences,2 as part of an
effort to “clean up” the neighborhood. Id. at 1076. Motley, a
non-parolee whose residence was searched, brought a § 1983
suit against the police officers (and others) for their actions
during the search of Motley’s residence. Id. at 1075-77. Mot-
ley asserted, among other claims, an “illegal search claim.”
Id. at 1078. She argued (1) that the officers lacked sufficient
evidence that the parolee lived with her and (2) that it was
clearly established that the officers needed some level of sus-
picion (which they allegedly lacked) to search the residence.
[3] Concerning the first issue, we held that the officers
needed “probable cause,” and not some lesser degree of cer-
tainty, that the parolee resided at the address in question. Id.
at 1078. After discussing many of our previous cases, we con-
cluded:
These cases make clear that a search conducted
without consent or a search warrant is permissible
only when the officers have some heightened knowl-
edge that they are at the address where either the
parolee or the subject of an arrest warrant resides.
The underlying analysis fits equally well here. A rea-
sonable parole search conducted by law enforcement
officers without a warrant does not run afoul of the
Fourth Amendment. See Griffin v. Wisconsin, 483
U.S. 868, 872-75 (1987). Generally, a condition of
parole that permits warrantless searches provides
2
Although the distinction between parolees and probationers may have
relevance in other, related contexts, United States v. Baker, 658 F.3d 1050,
1058-60 (9th Cir. 2011) (Graber, J., concurring), we agree with the parties
that any potential distinction has no relevance to the precise legal issue
here—whether Motley overruled Davis.
2252 UNITED STATES v. BOLIVAR
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. Nothing in the law justi-
fies the entry into and search of a third person’s
house to search for the parolee. “The Fourth Amend-
ment’s protection against unreasonable searches in a
person’s home is not diminished by the mere pres-
ence of a guest in the home.” Perez [v. Simmons],
884 F.2d [1136,] 1141 [(9th Cir. 1989)]. In other
words, the parole condition indicates only the paro-
lee’s acquiescence to a warrantless search of his own
residence. Absent this provision and the existence of
exigent circumstances, officers must obtain consent
or a warrant to enter a house.
Motley, 432 F.3d at 1079 (parallel citations omitted). Turning
to the arguably conflicting standards espoused by this court’s
previous cases on the precise level of “heightened knowl-
edge” needed by the police officers, we held:
Recently, we attempted to reconcile our previous
holdings. Following analysis of federal precedent,
we concluded that when it came to whether a person
lives at a particular residence, the “reason to believe”
or “reasonable belief” standard “should be read to
entail the same protection and reasonableness inher-
ent in probable cause.” United States v. Gorman, 314
F.3d 1105, 1111-15 (9th Cir. 2002). We see no rea-
son to depart from that conclusion here. . . .
Requiring officers to have probable cause to
believe that a parolee resides at a particular address
prior to conducting a parole search protects the inter-
est of third parties. Law enforcement officers are
allowed to search a parolee’s residence, but they
must have probable cause to believe that they are at
the parolee’s residence. In sum, we hold that before
UNITED STATES v. BOLIVAR 2253
conducting a warrantless search pursuant to a paro-
lee’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 (some citations omitted).
[4] Notably, we did not mention our earlier decision in
Davis. The reason seems clear: Motley’s first issue concerned
the level of certainty required for officers to decide that they
are entering the right home, whereas Davis concerned the sep-
arate, downstream issue of the level of certainty that the paro-
lee owns, possesses, or controls a particular item within the
home. Our discussion of the first issue in Motley is therefore
perfectly consistent with our holding in Davis: Officers must
have “probable cause” that they are at the correct residence
but, once validly inside, they need only “reasonable suspi-
cion” that an item is owned, possessed, or controlled by the
parolee or probationer. The higher level of certainty concern-
ing the home itself is consistent with longstanding and recent
Supreme Court precedent. See, e.g., Kyllo v. United States,
533 U.S. 27, 33 (2001) (“‘[A] private home[ ] [is] where pri-
vacy expectations are most heightened.’ ” (quoting Dow
Chem. Co. v. United States, 476 U.S. 227, 237 n.4 (1986))).
Entry into a residence is entry into the most constitutionally
protected space, Kyllo, 533 U.S. at 33, so the Motley rule for
the home does not necessarily translate into the rule for a
closed container within the home.
But our discussion in Motley did not end there. We went on
to consider a second issue: whether it was clearly established
that the officers needed some level of suspicion to conduct the
warrantless search.3 Motley, 432 F.3d at 1083-88. On that
3
At the time we decided Motley, it generally was not permissible for a
court to skip to the “clearly established” prong and avoid the constitutional
question. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part
by Pearson v. Callahan, 555 U.S. 223, 236 (2009). But we held that, in
2254 UNITED STATES v. BOLIVAR
issue, we held that, because the state of the law at the time of
the search “was in ‘disarray,’ ” the officers did not violate
clearly established law. Id. at 1083. After an extended analy-
sis supporting that conclusion, we mentioned our previous
Davis decision for the sole purpose of demonstrating that “the
Davis holding has little to do with our requiring a particular-
ized suspicion of wrong-doing,” the issue at hand in Motley:
Motley cites two other cases to support her argu-
ment that we have “long required officers to have
reasonable suspicion linking the parolee to some
wrongdoing,” but neither comes close to meeting the
“clearly established” threshold. In United States v.
Davis, 932 F.2d 752, 758 (9th Cir. 1991), we noted
that “[t]he permissible bounds of a probation search
are governed by a reasonable suspicion standard.”
The question before us, though, was whether a safe
inside the probationer’s residence was a reasonable
extension of the search condition in his probation
agreement. We ultimately held that the “police must
have reasonable suspicion, that an item to be
searched is owned, controlled, or possessed by pro-
bationer, in order for the item to fall within the per-
missible bounds of a probation search.” Id. Thus,
viewed in its proper context, the Davis holding has
little to do with our requiring a particularized suspi-
cion of wrong-doing. It merely reflects our
requirement—set forth earlier in this opinion—that
officers have probable cause to believe that what
they intend to search actually belongs, or is con-
nected, to the parolee.
the “unusual” circumstances of the case, the court validly could skip to the
“clearly established” prong. See Motley, 432 F.3d at 1077-78 (explaining
that, because the Supreme Court had granted certiorari in a case raising the
same underlying constitutional question, this court could “bypass” the
constitutional question).
UNITED STATES v. BOLIVAR 2255
Motley, 432 F.3d at 1087 (alteration in original).
[5] Defendant seizes on the final sentence of our discus-
sion and asserts that, because of its peculiar phrasing, we nec-
essarily overruled Davis’ holding that “reasonable suspicion”
is the proper legal standard and replaced it with the “probable
cause” standard. We disagree. Motley’s discussion of Davis
was in the context of an altogether different legal question—
whether it was clearly established that the police need suspi-
cion of wrongdoing. We discussed Davis only to point out
that Davis was not relevant to that legal issue. Motley simply
did not decide the issue here: the level of certainty that offi-
cers must have before searching a closed object inside a resi-
dence, once officers lawfully have entered the residence to
conduct a search. Motley discussed Davis for the sole purpose
of casting it aside as irrelevant. Accordingly, Motley did not
overrule Davis, explicitly or implicitly. Its principle remains
sound: Once police officers properly enter a residence pursu-
ant to a probation search, they need only a “reasonable suspi-
cion” to conclude that the probationer owns, controls, or
possesses a particular item within the probationer’s residence
in order to search that item.
AFFIRMED.