Barajas et al v. City of Rhonert Park

Filing 59

ORDER by Judge Maria-Elena James denying 33 Motion for Summary Judgment; granting in part and denying in part 26 Motion for Summary Judgment. (mejlc2S, COURT STAFF) (Filed on 2/5/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RAUL BARAJAS, et al.,

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Case No. 14-cv-05157-MEJ

Plaintiffs,
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ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.
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CITY OF ROHNERT PARK, et al.,

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Re: Dkt. Nos. 26, 33

Defendants.

United States District Court
Northern District of California

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INTRODUCTION

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This case considers the Fourth Amendment privacy rights of co-inhabitants of

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probationers. Pending before the Court are the parties‘ cross motions for summary judgment.

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Defs.‘ Mot., Dkt. No. 26; Pls.‘ Mot., Dkt. No. 33. Having considered the parties‘ positions,

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relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES

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IN PART Defendants‘ Motion and DENIES Plaintiffs‘ Motion as set forth below.
BACKGROUND1

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A.

Factual Background
Plaintiffs Elva Barajas and Raul Barajas (―Plaintiffs‖) are the mother and step-father of

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Edgar Horacio Perez. Defs.‘ Summ. of Undisputed Facts (―Defs.‘ SUF‖) ¶ 1, Dkt. No. 40.2

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Plaintiffs lived with Perez, their adult daughter, and another son in Rohnert Park, California in

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November 2014. Id. ¶ 3. At that time, Perez was on three separate grants of probation, and each

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The following facts are undisputed unless otherwise noted.

This document contains Defendants‘ original Statement Undisputed Facts (Dkt. No. 28) and
Plaintiffs‘ responses. Defendants are the City of Rohnert Park, and Rohnert Park Police Officers
Jacy Tatum, David Rodriquez, and Matthew Snodgrass.

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probation grant had the following search condition: ―Submit to warrantless search/seizure of

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residence any time day or reasonable hr. night by any Prob/Law Enforc. Off.‖ Pls.‘ Summ. of

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Undisputed Facts (―Pls.‘ SUF‖) ¶ 10, Dkt. No. 543; Defs.‘ SUF ¶ 4. Perez was on probation for

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pleas relating to resisting arrest (PC 148(a)(1)), simple possession (HS 11550(a)), and possession

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of controlled substance (HS 11377(a)). Justice Decl., Ex. A, PDF Page Nos. 10, 19, 25, Dkt. No.

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30; see also Defs.‘ SUF ¶ 2.
On November 4, 2014, at 4:52 p.m, three officers of the Rohnert Park Police Department,

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Defendants Jacy Tatum, David Rodriguez, and Matthew Snodgrass, went to Plaintiffs‘ home to

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conduct a suspicionless search of Perez‘s residence pursuant to his probation search conditions.

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Defs.‘ SUF ¶¶ 4, 6; Pls.‘ SUF ¶¶ 7, 9. There was no urgency or exigent circumstances to do the

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Northern District of California

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search on that day. Pls.‘ SUF ¶ 12.
Two officers, Rodriquez and Snodgrass, went to the front door and knocked, and Plaintiffs

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answered the door. Pls.‘ SUF ¶ 20; Defs.‘ SUF ¶ 7. Mr. Barajas testified he asked the officers to

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see ―a letter that said that they could enter,‖ and an officer responded ―they could come in

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whenever they wanted‖ because Perez was on probation. Lewis Decl., Ex. B (R. Barajas Dep.)

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33:25-34:6, Dkt. No. 32-1. Officer Rodriquez testified he told Plaintiffs his name and that he was

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there to do a probation search, and ―[Perez]‘s father said, ‗I want to see your search warrant.‘‖ Id.,

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Ex. D (Rodriquez Dep.) 44:3-8, 44:25-45-2, Dkt. No. 32-3. Officer Rodriquez testified that he

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explained to Mr. Barajas that did not have a search warrant, but Perez was on probation and he

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therefore did not need one. Id. 44:8-10. According to Officer Rodriquez, Mr. Barajas kept saying,

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―I want to read your search warrant, I want to see your paper.‖ Id. 44:12-17. Officer Snodgrass

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did not speak with Mr. Barajas when he answered the door but confirmed that Officer Rodriquez

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informed Mr. Barajas they were there to do a probation search and that there was a dialogue about

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a search warrant. Lewis Decl., Ex. E (Snodgrass Dep.) 34:21-35:8, Dkt. No. 32-3. Mr. Barajas

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also testified he told the officers Perez was not home. R. Barajas Dep. 34:7-11.
During this conversation, Officer Tatum went through the side gate and entered the Barajas

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This document contains Plaintiffs‘ original Statement Undisputed Facts (Dkt. No. 35), and
Defendants‘ responses.
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home through a rear sliding door. Pls.‘ SUF ¶ 21; Defs.‘ SUF ¶ 9. He entered the Barajas‘ home

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with his gun drawn while the two other officers were still outside the front door, speaking with the

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family. Pls.‘ SUF ¶ 23. Officer Tatum testified he could hear officers Snodgrass and Rodriquez

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talking as he entered, and according to Officer Tatum, he announced ―Police Department,

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probation search[.]‖ Lewis Decl., Ex. A (Tatum Dep.) 55:25-56:1, Dkt. No. 32-1. He testified he

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cleared the room for any people and then went into a dining area and the kitchen, making his way

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towards the front where he could hear talking. Id. 58:2-9. He also testified he could not see the

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other officers from the sliding door and described the voices as ―[m]uffled. I could just hear

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voices talking.‖ Id. 58:10-16. Plaintiffs‘ daughter, Lorena Barajas, was present during the search
and explained that while her father was speaking with the officers in the front, ―very shortly

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Northern District of California

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(within 30 seconds) of my father opening the door, a third officer . . . came inside and was

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standing inside our home, behind us and essentially surrounding my father, my mother, and me.‖

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L. Barajas Decl. ¶ 3, Dkt. No. 36. She stated he ―did not knock and did not announce that he was

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entering[,]‖ and she was ―surprised and startled to see him standing behind us, inside our home. It

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was very intimidating.‖ Id.

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Lorena further explained that ―[b]ecause the officer was already inside, I told my father to

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let the other two officers in.‖ Id. Mr. Barajas testified the officers in the front ―waited for the

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other one to come in‖ and once they ―saw that he was inside . . . they put on their gloves and they

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went inside.‖ R. Barajas Dep. 34:19-21, 36:9-16. Officer Snodgrass testified he saw officer

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Tatum inside ―[a]t some point just prior to making entry‖ into Plaintiffs‘ home. Snodgrass Dep.

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35:21-25; 37:1-7. Officer Rodriquez testified that Perez‘s sister told her father ―something to the

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effect of . . . They don‘t need a paper, just let them in,‖ but also testified this was after Officer

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Tatum had already entered the home. Rodriquez Dep. 52:10-22. According to Defendants,

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Officers Rodriquez and Snodgrass ―entered the home and searched the premises for Perez over the

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objection of Plaintiffs.‖ Defs.‘ SUF ¶ 10.

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The officers then searched the bedrooms, closets, and the bathroom for Perez and did not

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find him. Tatum Dep. 75:20-21; Rodriquez Dep. 53:9-12; Defs.‘ SUF ¶ 11; Pls.‘ SUF ¶ 49.

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Officer Rodriquez testified he asked Perez‘s father and sister many times where he was and where
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his room was, but they never answered directly. Rodriquez Dep. 53:13-25. The entire incident,

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from arrival of the officers to their departure after the search, lasted 18 minutes. Defs.‘ SUF ¶ 6.

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No one was injured or assaulted or arrested. Id. ¶ 11.
Afterwards, the Barajas family went to the Rohnert Park Police Station to complain about

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the November 4, 2014, search of their home. Pls.‘ SUF ¶ 39. A sergeant told Officer Snodgrass

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the family had come to the police department to complain about the search of their home; Officer

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Snodgrass told the sergeant they did a probation search, and the sergeant did not ask him anything

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further about what had happened. Pls.‘ SUF ¶ 40. Officers Tatum and Snodgrass have not been

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given any guidance on what they might have done differently with respect to the search of the
Barajas‘ home, and Officer Rodriguez has not been told he did anything incorrectly with respect to

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Northern District of California

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the search. Id. ¶¶ 41-42. Additionally, Officers Tatum and Snodgrass have not been told they

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violated policy or protocol in connection with their search. Id. ¶ 43.
After speaking with two Commanders at the Rohnert Park Police Department about the

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way he entered the Barajas home, Officer Tatum concluded they had no issue with the way he

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entered the home. Id. ¶ 46. Officer Snodgrass testified he did not report anything to his

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supervisors about officer Tatum‘s entry because having an officer enter through the back before

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officers enter through the front is the Rohnert Police Department‘s ―practice. That‘s happened

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before.‖ Id. ¶ 28. Officer Tatum has entered through a rear door during probation searches 50-60

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times before other officers have entered through the front door and testified this was consistent

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with his training. Id. ¶¶ 25-27. Sergeant Jeff Justice was designated as the 30(b)(6) witness for

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the City of Rohnert Park to testify regarding training and practices pertaining to probation searches

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and testified that he has trained officers in the city of Rohnert Park to conduct probation searches

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in this manner. Id. ¶¶ 30, 34. No additional training has been offered and nothing has changed

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(since the search of the Barajas‘ home) with respect to how the Rohnert Park Police Department

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conducts probation searches. Id. ¶ 45.

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B.

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Procedural Background
Plaintiffs filed this action on November 21, 2014. Compl., Dkt. No. 1. In their Second

Amended Complaint, they allege six causes of action: (1) violation of Plaintiffs‘ Fourth
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Amendment Rights pursuant to 42 U.S.C. § 1983; (2) violation of Section 13 of Article I of the

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California Constitution for unreasonable search and seizure; (3) negligence; (4) assault; (5)

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invasion of privacy under Section 1 of Article I of the California Constitution; and (6) declaratory

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and injunctive relief. Second Am. Compl., Dkt. No. 16.

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Plaintiffs and Defendants have filed cross motions for summary judgment. The Court held

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a hearing on the matters on October 15, 2015. Dkt. No. 57. Having carefully considered the

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evidence and briefing in this matter, the Court addresses the parties‘ arguments below.

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LEGAL STANDARD
Summary judgment is proper where the pleadings, discovery and affidavits demonstrate
that there is ―no genuine dispute as to any material fact and [that] the movant is entitled to

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Northern District of California

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judgment as a matter of law.‖ Fed. R. Civ. P. 56(a). The party moving for summary judgment

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bears the initial burden of identifying those portions of the pleadings, discovery and affidavits that

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demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

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317, 323 (1986). Material facts are those that may affect the outcome of the case. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is

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sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

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Where the moving party will have the burden of proof on an issue at trial, it must

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affirmatively demonstrate that no reasonable trier of fact could find other than for the moving

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party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where

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the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by

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pointing out to the district court that there is an absence of evidence to support the nonmoving

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party‘s case. Celotex, 477 U.S. at 324-25.

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If the moving party meets its initial burden, the opposing party must then set forth specific

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facts showing that there is some genuine issue for trial in order to defeat the motion. Fed. R. Civ.

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P. 56(e); Anderson, 477 U.S. at 250. All reasonable inferences must be drawn in the light most

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favorable to the nonmoving party. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.

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2004). However, it is not the task of the Court to scour the record in search of a genuine issue of

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triable fact. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). The Court ―rel[ies] on the
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nonmoving party to identify with reasonable particularity the evidence that precludes summary

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judgment.‖ Id.; see also Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

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Thus, ―[t]he district court need not examine the entire file for evidence establishing a genuine

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issue of fact, where the evidence is not set forth in the opposing papers with adequate references

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so that it could conveniently be found.‖ Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1031

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(9th Cir. 2001). If the nonmoving party fails to make this showing, ―the moving party is entitled

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to a judgment as a matter of law.‖ Celotex, 477 U.S. at 323 (internal quotations omitted).

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DISCUSSION
Both parties contend they are entitled to summary judgment. Plaintiffs argue ―[t]here is no
genuine dispute that the search of the Barajas home was unreasonable and failed to comply with

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Northern District of California

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the Fourth Amendment‖ because (1) the officers did not have reasonable suspicion that Perez was

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engaged in criminal activity; and (2) Officer Tatum‘s method of entry, through the sliding back

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door gun in hand while the other two officers spoke to the Barajas family at the front door, was

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unreasonable and improper. Pls.‘ Br. in Supp. of Pls.‘ Mot. (―Pls.‘ Br.‖) at 4, Dkt. No. 34.

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Defendants agree ―Rohnert Park Officers initiated a suspicionless search of Perez‘s home,‖ but

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contend his probation condition permitted such suspicionless probation searches, and the state‘s

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special needs related to monitoring probationers outweighs any privacy interests of the Plaintiffs;

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thus they assert the search was reasonable under the Fourth Amendment. Defs.‘ Br. in Supp. of

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City‘s Mot. (―City Br.‖) at 9, Dkt. No. 27. In turn, Defendants argue the officer Defendants are

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entitled to qualified immunity and Plaintiffs‘ state law claims must fail as well. Id. at 9, 17.

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Plaintiffs respond that regardless of the quantum of suspicion required, a reasonable jury could

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find the search was unreasonable for independent reasons, including that (1) Officer Tatum‘s

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uninvited entry through the back gate and back door with his gun drawn, before the other officers

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had entered, violated the knock and announce rule; (2) the search was harassing; or (3) the search

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over Plaintiffs‘ objection was unreasonable under Supreme Court precedent, Georgia v. Randolph.

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Pls.‘ Opp‘n at 10-15, Dkt. No. 39. Plaintiffs argue the officer Defendants are likewise precluded

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from qualified immunity. Id. The dispute thus centers on whether the officers violated Plaintiffs‘

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Fourth Amendment rights, and if so, whether Defendants may be held liable.
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In considering whether the search in this case was constitutional, the Court is mindful that

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Fourth Amendment rights ―are personal in nature.‖ Steagald v. United States, 451 U.S. 204, 219

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(1981). A search that is reasonable as to one individual may be unreasonable as to another. Id.

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Thus, while the parties tend to focus on the privacy expectations of Plaintiffs‘ son, Edgar Perez,

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concentrating on how diminished a probationer‘s privacy rights are and what terms Perez agreed

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to in his probation search conditions, the Court is cautious in not conflating Perez‘s rights with

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Plaintiffs‘ rights. Put another way, it is not Perez‘s privacy interests that matter here—rather, it is

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the privacy interests of his co-inhabitants that are of consequence to this case. See Perez v.

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Simmons, 884 F.2d 1136, 1141 (9th Cir. 1988) (‖The privacy interest protected by the Fourth
Amendment is personal to the individual asserting it.‖), amended on other grounds, 900 F.2d 213

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Northern District of California

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(9th Cir. 1990), order corrected on other grounds, 998 F.2d 775 (9th Cir. 1993).
To assess the parties‘ motions, the Court finds it helpful to begin with a survey of Fourth

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Amendment jurisprudence relating to the issues in this case and the legal standards associated with

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qualified immunity and municipal liability. The Court then turns to whether Plaintiffs‘ rights were

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violated and then whether the Defendant officers are entitled to qualified immunity. Finally, the

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Court considers whether Plaintiffs may maintain their municipal liability claims against the City.

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A.

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Survey of Fourth Amendment Jurisprudence
The United States Constitution protects ―the right of the people to be secure in their

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persons, houses, papers, and effects, against unreasonable searches and seizures.‖ U.S. Const.

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amend. IV. The Fourth Amendment protects reasonable and legitimate expectations of privacy.

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Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). It protects ―people not

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places.‖ Id. at 351, 361. A private home is ―‗where privacy expectations are most heightened.‘‖

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Kyllo v. United States, 533 U.S. 27, 33 (2001) (quoting Dow Chem. Co. v. United States, 476 U.S.

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227, 237 n.4 (1986)). Indeed, ―‗physical entry of the home is the chief evil against which the

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wording of the Fourth Amendment is directed.‘‖ Payton v. New York, 445 U.S. 573, 585 (1980)

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(quoting United States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972)). It is, therefore, ―a basic

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principle of Fourth Amendment law that searches and seizures inside a home without a warrant are

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presumptively unreasonable.‖ Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (quotation
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omitted). Accordingly, ―[a] warrantless entry into a home violates the Fourth Amendment unless

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an exception to the Fourth Amendment warrant requirement applies, such as emergency, exigency,

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or consent.‖ Espinosa v. City & Cty. of S.F., 598 F.3d 528, 533 (9th Cir. 2010). Valid consent

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may be granted by a person with actual or apparent authority to give permission to search. See

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Illinois v. Rodriguez, 497 U.S. 177, 186-89 (1990).
Probationer‘s Consent as an Exception to the Warrant Requirement

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―A probationer‘s home, like anyone else‘s, is protected by the Fourth Amendment‘s

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requirement that searches be ‗reasonable[,]‘‖ Griffin v. Wisconsin, 483 U.S. 868, 873 (1987), but

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parolees and probationers often consent to searches of their residences as a condition of their
parole or probation. In light of such consent, in certain instances the Supreme Court has found

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Northern District of California

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suspicionless searches or searches conducted on only reasonable suspicion to be reasonable under

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the Fourth Amendment. See id. at 872-73 (based on ―special need‖ of Wisconsin‘s probation

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system, upholding state regulation permitting a probation search on only reasonable suspicion

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rather than requiring a warrant or probable cause); United States v. Knights, 534 U.S. 112, 114-22

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(2001) (moving away from Griffin‘s ―special needs‖ analysis in favor of ―totality of

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circumstances‖ test, and finding search conducted with only reasonable suspicion reasonable

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because government‘s interest outweighed probationer‘s privacy interest as his probation search

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condition ―significantly diminished‖ his expectation of privacy); see also Samson v. California,

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547 U.S. 843, 848-50 (2006) (finding Fourth Amendment does not prohibit a police officer from

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conducting a warrantless, suspicionless search of a parolee under a state parole-search statute, but

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also noting ―parolees have fewer expectations of privacy than probationers, because parole is more

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akin to imprisonment than probation is to imprisonment.‖).

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However, as one commentator noted, in Samson v. California, ―the majority merely

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observed that ‗we need not reach the issue whether acceptance of the search condition constitutes

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consent in the Schneckloth sense of a complete waiver of his Fourth Amendment rights[.]‘‖ 5

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Wayne R. LaFave, Search and Seizure § 10.10(b) n.62 (5th ed. 2015) (quoting Samson, 547 U.S.

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at 852 n.3 and citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). Rather, ―Samson does

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say, [] just as does Knights, that it was relevant that the search condition . . . had been ‗clearly
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expressed‘ to petitioner.‖ Id.; see Knights, 534 U.S. at 119-20 (―The probation order clearly

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expressed the search condition and Knights was unambiguously informed of it. The probation

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condition thus significantly diminished Knights‘ reasonable expectation of privacy.‖). But the

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Supreme Court has not decided whether a probation condition can ―so diminish[], or completely

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eliminate[], [a probationer‘s] reasonable expectation of privacy . . . that a search by a law

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enforcement officer without any individualized suspicion [could] satisfy the reasonableness

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requirement of the Fourth Amendment.‖ Id. at 120 n.6.

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The Ninth Circuit subsequently addressed a similar issue in United States v. King, which
considered whether to suppress evidence obtained during a suspicionless search of a probationer‘s
home. 736 F.3d 805, 807 (9th Cir. 2013), cert. denied, 134 S. Ct. 1492 (2014). The defendant‘s

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Northern District of California

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probation agreement stated: ―Defendant is subject to a warrantless search condition, as to

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defendant‘s person, property, premises and vehicle, any time of the day or night, with or without

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probable cause, by any peace, parole or probation officer.‖ Id. at 806 (footnote omitted). The

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Court of Appeals held that ―such a search is permissible when, as here, a violent felon has

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accepted a suspicionless-search condition as part of a probation agreement.‖ Id. Stated another

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way, the Ninth Circuit held ―only that a suspicionless search, conducted pursuant to a

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suspicionless-search condition of a violent felon‘s probation agreement, does not violate the

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Fourth Amendment.‖ Id. at 810.

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In arriving at this conclusion, the Ninth Circuit considered ―the totality of the

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circumstances to determine whether the suspicionless search of Defendant‘s residence was

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reasonable[,] . . . . assess[ing] on the one hand, the degree to which the search intrudes upon

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Defendant‘s privacy and, on the other, the degree to which it is needed for the promotion of

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legitimate governmental interests.‖ Id. at 808 (quotations and internal marks omitted). First, the

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Ninth Circuit noted that, as a probationer, the defendant ―begins with a lower expectation of

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privacy than is enjoyed by a citizen who is not subject to a criminal sanction.‖ Id. (citing Knights,

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534 U.S. at 119). Additionally, because the defendant-probationer had agreed to the probation

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search condition noted above, his lower expectation of privacy was further ―significantly

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diminished[.]‖ Id. at 809. In comparing this ―small‖ expectation of privacy, the Ninth Circuit
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noted the government had at least three ―important interests‖: (1) ―an interest in apprehending

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violators of the criminal law, thereby protecting potential victims from probationers‘

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recidivism[;]‖ (2) ―an interest in discovering criminal activity and preventing the destruction of

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evidence[;]‖ and (3) ―an interest in a probationer‘s successful completion of probation and in his

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or her reintegration into society.‖ Id. (quotation and internal marks omitted). ―Balancing the

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slight intrusion on Defendant‘s expectation of privacy against the government‘s significant need to

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promote its legitimate governmental interests,‖ the Ninth Circuit held the search reasonable under

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the Fourth Amendment. Id. at 810.
A probationer‘s consent to searches as part of his or her probation condition is thus ―a

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salient circumstance‖ in weighing the reasonableness of a search and the probationer‘s legitimate

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Northern District of California

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expectation of privacy. Knights, 534 U.S. at 118. The question then is how that search condition

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might affect the expectations of privacy for a probationer‘s co-resident.

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2.

Exception to the Exception: Physically Present, Objecting Co-Occupant

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―[C]onsent by one resident of jointly occupied premises is generally sufficient to justify a

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warrantless search[.]‖ Fernandez v. California, ––– U.S. ––––, 134 S. Ct. 1126, 1132-33 (2014)4

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(―‗Consent searches are part of the standard investigatory techniques of law enforcement agencies‘

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and are ‗a constitutionally permissible and wholly legitimate aspect of effective police activity.‘‖

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(quoting Schneckloth, 412 U.S. at 228, 231-32)). ―[A] person who shares a residence with others

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assumes the risk that ‗any one of them may admit visitors, with the consequence that a guest

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obnoxious to one may nevertheless be admitted in his absence by another[.]‘‖ Id. at 1133 (quoting

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Georgia v. Randolph, 547 U.S. 103, 120 (2006)); see also Lopez-Rodriguez v. Mukasey, 536 F.3d

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1012, 1018 (9th Cir. 2008) (―[T]he voluntary consent of a party who has authority over the

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premises renders the warrantless entry of a person‘s home by law enforcement personnel

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constitutionally valid[.]‖ (citation omitted)).

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In Georgia v. Randolph, the Supreme Court reiterated a narrow exception to this rule,

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holding that ―a physically present inhabitant‘s express refusal of consent to a police search is

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The Supreme Court decided Fernandez on February 25, 2014—several months before the search
here.
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dispositive as to him, regardless of the consent of a fellow occupant.‖ 547 U.S. at 122-23; see

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also Fernandez, 134 S. Ct. at 1134 (emphasizing Randolph does not extend to cases where the

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objector is not present and objecting). Put another way, the Supreme Court has held that ―a

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warrantless search of a shared dwelling for evidence over the express refusal of consent by a

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physically present resident cannot be justified as reasonable as to him on the basis of consent

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given to the police by another resident.‖ Id. at 120 (footnote omitted) (holding search invalid

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under the Fourth Amendment when a physically-present occupant expressly objected to a search,

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notwithstanding the consent of a fellow occupant).5
Subsequent courts have applied Randolph in the context of parole and probation searches,

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even where the parolee or probationer gave consent to search. In Thornton v. Lund, a court

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Northern District of California

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considered a similar case where two sisters sued officers for conducting a warrantless search of

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their home while looking for their parolee brother. 538 F. Supp. 2d 1053, 1055-56 (E.D. Wis.

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2008). As the court explained, the question was not about the parolee brother‘s expectation of

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privacy but ―whether plaintiffs‘ own Fourth Amendment rights were diminished because

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defendants reasonably believed that William, a parolee, lived in their home.‖ Id. at 1058. The

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court rejected that individuals living with parolees and probationers necessarily had diminished

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Fourth Amendment rights. It noted that parolees and probationers have lower expectation of

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privacy as compared with other citizens because ―their liberty is conditional and because the

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government ‗clearly expressed‘ to them that they were subject to warrantless searches, and they

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acknowledged this ‗unambiguously.‘‖ Id. (quoting Samson, 126 S. Ct. at 2199; Knights, 534 U.S.

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at 119-20). But ―[w]here, as here, the government gave the parolee‘s co-resident no notice of its

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intent to search and the co-resident did not consent to a search,‖ the court found ―the rationale for

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concluding that the co-resident has a diminished privacy interest evaporates.‖ Id. Furthermore,

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5

California courts maintain a similar rule. See Tompkins v. Superior Ct. of City & Cty. of S.F., 59
Cal. 2d 65, 69 (1963) (―[O]ne joint occupant who is away from the premises may not authorize
police officers to enter and search the premises over the objection of another joint occupant who is
present at the time, at least where . . . no prior warning is given, no emergency exists, and the
officer fails even to disclose his purpose to the occupant who is present or to inform him that he
has the consent of the absent occupant to enter.‖).
11

1

the Thorton court noted a parolee‘s consent to warrantless search is not sufficient to permit the

2

search over the objections of a physically present co-tenant. Id. Thus, ―notwithstanding

3

William‘s consent, defendants‘ entry into and search of plaintiffs‘ home was unreasonable[.]‖ Id.

4

Judge Anthony Ishii of the Eastern District of California adopted the Thorton court‘s logic

5

in Sanders v. City of Bakersfield, where a parolee, Ken McDaniel, resided with Arlene Sanders, a

6

non-parolee, at the time the police searched their home. 2009 WL 734059, at *1-3 (E.D. Cal. Mar.

7

17, 2009). Sanders had demanded that the officers leave, but they entered the home despite her

8

non-consent, justifying the search as a parole search. Id. at *1. Judge Ishii found the search could

9

―not be justified as a parole search in relation to Arlene Sanders,‖ relying on Thorton for the
proposition that Randolph set forth a new rule when a physically present resident refused consent,

11
United States District Court
Northern District of California

10

even with parolee co-inhabitants who had agreed to such searches. Id. at *2-3

12

Other courts have similarly acknowledged that Randolph has changed the typical analysis

13

for consent based searches, even in the context of probationers, although those courts have

14

declined to extend Randolph to cases where a probationer has already consented to such searches

15

and the probationer‘s co-resident did not object to the search or where the co-resident was aware

16

of the search condition. For instance, in Donald v. State, the Delaware Supreme Court wrote that

17

―[w]hile a co-occupant does not forfeit her own Fourth Amendment rights by allowing a

18

probationer to live with her, she must object to the search to which the probationer has consented

19

in order to prevent a search without a warrant. Because Donald did not do that, we conclude that

20

the Superior Court did not err when it denied the motion to suppress.‖ 903 A.2d 315, 321 (Del.

21

2006). Additionally, in Taylor v. Brontoli, the court briefly considered whether a co-resident‘s

22

refusal to consent to a search prevails over the other co-inhabitant‘s consent to search under that

23

person‘s probation agreement in light of Randolph. 2007 WL 1359713, at *1 n.4 (N.D.N.Y. May

24

8, 2007). The defendants ―maintain[ed] that the ruling in [Randolph] should not be extended to

25

the facts [t]here because it [wa]s undisputed that [the non-consenting co-resident] was aware that

26

[the other co-inhabitant] was on probation and that her trailer was subject to searches.‖ Id. The

27

court agreed, finding that under the circumstances, Randolph was ―distinguishable because [the]

28

residence was already subject to searches under a probation agreement.‖ Id. Similar to Thorton,
12

1

the implication of Taylor is that where the co-resident has no knowledge of the search condition

2

applicable to their home, if that person is physically present and refused to the search, that refusal

3

is dispositive as to him or her. The foregoing cases demonstrate that courts interpret Randolph as

4

potentially applicable even in the face of probation search conditions.

5

3.

Method of Entry

6

The ―method of an officer‘s entry into a dwelling‖ is a factor to be considered in assessing

7

the reasonableness of a search. Wilson v. Arkansas, 514 U.S. 927, 934 (1995). The ―principle that

8

officers must announce their presence and provide residents an opportunity to open the door‖ is

9

―ancient‖ and commanded by the Fourth Amendment. Hudson v. Michigan, 547 U.S. 586, 859
(2006). The goals of the knock and announce principle include ―protecting the sanctity of the

11
United States District Court
Northern District of California

10

home, preventing the unnecessary destruction of private property through forced entry, and

12

avoiding violent confrontations that may occur if occupants of the home mistake law enforcement

13

for intruders.‖ United States v. Combs, 394 F.3d 739, 744 (9th Cir.), opinion amended on other

14

grounds on denial of reh’g, 412 F.3d 1020 (9th Cir. 2005) (―[T]he focus of the ‗knock and

15

announce‘ rule is properly not on what ‗magic words‘ are spoken by the police, or whether the

16

police rang the doorbell, but rather on how these words and other actions of the police will be

17

perceived by the occupant.‖ (quotation omitted)). Unannounced entry by police officers exposes

18

them ―to the risk that an occupant would mistake their entry for an invasion and reasonably would

19

take defensive measures to protect himself from the perceived, though mistaken, threat.‖ Green v.

20

Butler, 420 F.3d 689, 698 (7th Cir. 2005) (citations omitted). ―In the same vein, observance of the

21

knock and announce rule is a significant safeguard to the occupants of the home, including

22

innocent third parties for whom the surprise of an unannounced entry by law enforcement officers

23

might elicit panic or other forms of irrational conduct-action that easily can be misapprehended by

24

law enforcement officers and result in deadly defensive measures on their part.‖ Id. (citations

25

omitted). And although most of the concerns surrounding the knock and announce rule focus on

26

escalating emotions and reactionary decision-making, the Supreme Court has also emphasized

27

basic civility and sanctity of the home, recognizing that one purpose of the rule is to protect the

28

privacy of the occupants and give them an opportunity to prepare for the officers‘ entry, allowing
13

1

them ―to pull on clothes or get out of bed.‖ Richards v. Wisconsin, 520 U.S. 385, 393 n.5 (1997).
Thus, in order to be reasonable under the Fourth Amendment, police are generally required

2
3

―to announce their intent to search before entering closed premises;‖ however, the obligation

4

―gives way when officers have a reasonable suspicion that knocking and announcing their

5

presence, under the particular circumstances, would be dangerous or futile, or [] would inhibit the

6

effective investigation of the crime by, for example, allowing the destruction of evidence.‖ United

7

States v. Banks, 540 U.S. 31, 36 (2003) (quotation omitted). To determine whether an entry is

8

reasonable, courts must consider all the circumstances surrounding the entry, including, but not

9

limited to, officer safety, time of day, destructibility of evidence, the size of the residence, the
nature of the offense, and any other observations by law enforcement that would support a forced

11
United States District Court
Northern District of California

10

entry. Combs, 394 F.3d at 744. Additionally, they must examine what, if any, notice the police

12

gave before entry and the likelihood that the notice alerted those inside the home to the officer‘s

13

presence and purpose. Id. at 744-45. Finally, a ―probation search does not permit an exception to

14

the knock and announce requirement unless there are exigent circumstances or futility.‖ Portnoy

15

v. City of Davis, 663 F. Supp. 2d 949, 957 (E.D. Cal. 2009) (citing Green, 420 F.3d at 699).

16

B.

Qualified Immunity and Municipal Liability Standards

17

1.

Qualified Immunity

18

―Qualified immunity shields federal and state officials from money damages‖ unless a

19

plaintiff demonstrates ―(1) that the official violated a . . . constitutional right, and (2) that the right

20

was ‗clearly established‘ at the time of the challenged conduct.‖ Ashcroft v. al-Kidd, 131 S. Ct.

21

2074, 2080 (2011). An official‘s conduct violates clearly established law when, at the time of the

22

challenged conduct, ―[t]he contours of [a] right [are] sufficiently clear‖ that every ―reasonable

23

official would have understood that what he is doing violates that right.‖ Anderson v. Creighton,

24

483 U.S. 635, 640 (1987); Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011). In making this

25

determination, courts consider the state of the law at the time of the alleged violation and the

26

information possessed by the official to determine whether a reasonable official in a particular

27

factual situation should have been on notice that his or her conduct was illegal. Inouye v. Kemna,

28

504 F.3d 705, 712 (9th Cir. 2007). ―‗[T]he salient question . . . is whether the state of the law‘ at
14

1

the time of an incident provided ‗fair warning‘ to the defendants ‗that their alleged [conduct] was

2

unconstitutional.‘‖ Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (quotation omitted). Courts

3

exercise their sound discretion in deciding which of the two prongs of the qualified immunity

4

analysis should be addressed first in light of the circumstances in the particular case at hand. al-

5

Kidd, 131 S. Ct. at 2080.

6

―The plaintiff bears the burden of proof that the right allegedly violated was clearly

7

established.‖ Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) (quotation omitted). ―To

8

meet this standard the very action in question need not have previously been held unlawful.‖ Id.

9

(quotation and internal marks omitted). This is particularly true in the Fourth Amendment
context, where the constitutional standard of ―reasonableness‖ demands a fact-specific inquiry.

11
United States District Court
Northern District of California

10

Mattos, 661 F.3d at 442. The question is ―whether a reasonable officer would have had fair notice

12

that [the action] was unlawful[.]‖ Tarabochia, 766 F.3d at 1125 (quotation omitted).

13

The Supreme Court has provided little guidance as to where courts should look to

14

determine whether a particular right was clearly established at the time of the injury. See Harlow

15

v. Fitzgerald, 457 U.S. 800, 818 n.32 (1982) (declining to define ―the circumstances under which

16

‗the state of the law‘ should be ‗evaluated by reference to the opinions of this Court, of the Courts

17

of Appeals, or of the local District Court.‘‖ (quoting Procunier v. Navarette, 434 U.S. 555, 565

18

(1978)). In the Ninth Circuit, courts begin the inquiry by looking to binding precedent.

19

Tarabochia, 766 F.3d at 1125 (citing Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004)). If

20

the right is clearly established by decisional authority of the Supreme Court or this Circuit, the

21

inquiry should come to an end. Id. On the other hand, ―[i]n the absence of binding precedent

22

clearly establishing the constitutional right, ‗we look to whatever decisional law is available . . .

23

including decisions of state courts, other circuits, and district courts.‘‖ Id. (quoting Boyd, 374

24

F.3d at 781). Fundamentally, ―[t]he qualified immunity doctrine rests on a balance between, on

25

the one hand, society‘s interest in promoting public officials‘ observance of citizens‘ constitutional

26

rights and, on the other, society‘s interest in assuring that public officials carry out their duties and

27

thereby advance the public good.‖ Beier v. City of Lewiston, 354 F.3d 1058, 1071 (9th Cir. 2004).

28

//
15

1

2.

Municipal Liability

2

To hold a municipal entity liable for a constitutional violation, a plaintiff must show that

3

an official‘s action that caused the plaintiff‘s injury was pursuant ―to official municipal policy of

4

some nature.‖ Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). In other

5

words, a local government may only be liable under § 1983 for its own action or inaction, not that

6

of its employees. Monell, 436 U.S. at 694; see also Connick v. Thompson, 131 S. Ct. 1350, 1359

7

(2011). To prevail, a plaintiff must go beyond the respondeat superior theory of liability and

8

demonstrate that the alleged constitutional deprivation was the product of a policy or custom of

9

the local governmental unit, because municipal liability must rest on the actions of the
municipality and not the actions of the employees of the municipality. Id. The Supreme Court has

11
United States District Court
Northern District of California

10

emphasized that ―[w]here a plaintiff claims that the municipality . . . has caused an employee to

12

[violate a plaintiff‘s constitutional rights], rigorous standards of culpability and causation must be

13

applied to ensure that the municipality is not held liable solely for the actions of its employee.‖

14

Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997) (citations omitted). Thus, ―a plaintiff

15

seeking to impose liability on a municipality under § 1983‖ is required ―to identify a municipal

16

‗policy‘ or ‗custom‘ that caused the plaintiff‘s injury.‖ Hunter v. Cty. of Sacramento, 652 F.3d

17

1225, 1232-33 (9th Cir. 2011) (citations and quotation marks omitted).

18

Liability based on a municipal policy may be satisfied one of three ways: (1) when official

19

policies or established customs inflict a constitutional injury; (2) when omissions or failures to act

20

amount to a local government policy of ―deliberate indifference‖ to constitutional rights; or (3)

21

when a local government official with final policymaking authority ratifies a subordinate‘s

22

unconstitutional conduct. Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir.

23

2010) (synthesizing Supreme Court authorities). ―[A]n act performed pursuant to a ‗custom‘ that

24

has not been formally approved by an appropriate decisionmaker may fairly subject a municipality

25

to liability on the theory that the relevant practice is so widespread as to have the force of law.‖

26

Brown, 520 U.S. at 404. Moreover, ―a local governmental body may be liable if it has a policy of

27

inaction and such inaction amounts to a failure to protect constitutional rights.‖ Oviatt v. Pearce,

28

954 F.2d 1470, 1474 (9th Cir. 1992) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
16

1

In any case, a successful Monell claim must prove that a government entity‘s policy, practice, or

2

custom is the ―moving force behind a violation of constitutional rights.‖ Dougherty v. City of

3

Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citation omitted).

4

C.

Application to the Case at Bar

5

As discussed below, based on the current record, the Court cannot grant summary

6

judgment in favor of either Defendants or Plaintiffs related to the constitutionality of the search in

7

this case because genuine issues of material fact remain as to the reasonableness of the search.

8

However, the Court finds that the officer Defendants are entitled to qualified immunity on certain

9

limited grounds and likewise that the City is entitled to summary judgment on the ground that
Plaintiffs have not provided evidence that a City policy or custom was the moving force behind

11
United States District Court
Northern District of California

10

the potential constitutional violations in this case. The Court discusses each of the potential

12

constitutional violations below and the potential liability of the Defendants.
Searching Over Plaintiffs‘ Objections and Level of Suspicion Required

13

1.

14

Plaintiffs argue they are entitled to summary judgment because the officers conducted the

15

search in this case without reasonable suspicion, whereas Defendants argue they are entitled to

16

summary judgment because no suspicion was required in part because Plaintiffs‘ son and co-

17

resident consented to such searches as part of his probation search terms. The issue neither party

18

truly addresses is whether Officer Tatum began the search of Plaintiffs‘ home before they

19

objected. This fact matters because under Georgia v. Randolph, if the officers entered and

20

searched the home over the objections of the physically present Plaintiffs, that was a violation of

21

the Fourth Amendment regardless of Perez‘s consent. However, if Officer Tatum entered and

22

began searching the home before they objected, the scope of Perez‘s earlier consent may play a

23

greater role in analyzing Plaintiffs‘ privacy expectations—with the caveat that Officer Tatum‘s

24

method of entry into the home may be considered more skeptically.

25

While both parties generally agree the officers conducted the search over Plaintiffs‘

26

objections while they were physically present, Plaintiffs do not move for summary judgment on

27

this ground and instead present evidence indicating factual disputes about when Plaintiffs objected

28

to the search compared with when Officer Tatum entered the home. Specifically, Plaintiffs proffer
17

1

that ―[t]he time that passed between the knock at the front door and when the family realized

2

Officer Tatum was standing behind them was within 30 seconds.‖ Pls.‘ Opp‘n at 11 (citing L.

3

Barajas Decl. ¶ 3). They also note ―Defendants attempt to argue that Officer Tatum could hear the

4

conversation at the front door at the time he entered (Defs.‘ [Br.] at 3),‖ but assert ―this fact is

5

disputed.‖ Pls.‘ Opp‘n at 11. Having carefully reviewed the record, it is unclear precisely when

6

the search began in relation to Plaintiffs‘ objections. As such, the Court cannot grant Defendants

7

summary judgment on the ground that the search was constitutional as a matter of law, nor can the

8

Court grant Plaintiffs summary judgment on the ground that reasonable suspicion was required to

9

perform the search as discussed below.

10

a.

Searching Over Plaintiffs’ Objections

United States District Court
Northern District of California

11

Defendants urge the Court against such a conclusion, requesting it find (1) Randolph does

12

not apply in the context of probation searches because ―the ‗special needs‘ of the state were never

13

considered‖ in that case, and (2) that under the circumstances here, the ―state[‘]s interests prevail

14

over the objecting occupant[.]‖ Defs.‘ Br. at 14-15. But the Court is unconvinced these

15

arguments preclude the application of Randolph. While Randolph did not consider the state‘s

16

interests as related to probationers, it is not the case that it did not consider the interests of the

17

state. Rather, Randolph found that ―in the balancing of competing individual and governmental

18

interests entailed by the bar to unreasonable searches, . . . the cooperative occupant‘s invitation

19

adds nothing to the government‘s side to counter the force of an objecting individual‘s claim to

20

security against the government‘s intrusion into his dwelling place.‖ 547 U.S. at 114-15 (citation

21

omitted). In comparing the individual‘s interest in protecting the sanctity of his home, the Court

22

found ―[d]isputed permission is [] no match for this central value of the Fourth Amendment, and

23

the State‘s other countervailing claims do not add up to outweigh it.‖ Id. at 115. The Court

24

recognized the general interest in expedient law enforcement and bringing criminal activity to

25

light but rejected that they outweighed the non-consenting individual‘s privacy interest. Id. at 115

26

and n.5. The Court concluded, ―nothing in social custom or its reflection in private law argues for

27

placing a higher value on delving into private premises to search for evidence in the face of

28

disputed consent, than on requiring clear justification before the government searches private
18

1
2

living quarters over a resident‘s objection.‖ Id. at 120.
Furthermore, as Knights, Samson, and King demonstrate, the focus has shifted in assessing

3

the reasonableness of searches such as the one in this case, from the special needs doctrine

4

articulated in Griffin, to the ―general Fourth Amendment approach of ‗examining the totality of

5

the circumstances,‘‖ and in probationer cases, ―with the probation search condition being a salient

6

circumstance.‖ Knights, 534 U.S. at 118 (quotation omitted). Nonetheless, when Defendants

7

argue the ―special needs‖ of California‘s probation system outweigh the privacy rights of the

8

objecting Plaintiffs, Defs.‘ Br. at 1, the Court takes the Defendants‘ general point that the Court

9

should weigh the competing interests in this case in assessing the totality of the circumstances of
the search if the officers entered over Plaintiffs‘ objections. See Randolph, 547 U.S. at 125-26

11
United States District Court
Northern District of California

10

(Breyer, J., concurring) (stressing the totality of the circumstances test ―because, were the

12

circumstances to change significantly, so should the result.‖).

13

In any event, under the totality of the circumstances, the Court finds that if the officers

14

entered and searched Plaintiffs‘ home over their objections, they violated Plaintiffs‘ Fourth

15

Amendment rights. First, as discussed above, the general rule that consent by one resident of

16

jointly occupied premises justifies a warrantless search is inapplicable here if the Plaintiffs were

17

physically present and objected to the search. Therefore, the threshold question is what reasonable

18

expectation of privacy Plaintiffs had, regardless of the specific scope of Perez‘s consent.

19

Defendants argue ―for purposes of Fourth Amendment analysis, Plaintiffs have a diminished

20

expectation of privacy while their probationer son uses their home for a residence.‖ Defs.‘ Opp‘n

21

at 10, Dkt. No. 43 (citing United States v. Matlock, 415 U.S. 164, 171 (1974); Lenz v. Winburn, 51

22

F.3d 1540 (1995)). But while a probationer ―begins with a lower expectation of privacy than is

23

enjoyed by a citizen who is not subject to a criminal sanction,‖ King, 736 F.3d at 808 (citing

24

Knights, 534 U.S. at 119), it is not clear that co-inhabitants of a probationer similarly have reduced

25

privacy expectations merely because they reside with a probationer.

26

Part of the reason the probationers in King and Knights had reduced expectations of

27

privacy was the fact that they accepted clear and unambiguous search conditions. Id. at 808-09;

28

Knights, 534 U.S. at 119-20. Here, even if Perez accepted such a search condition, there is no
19

1

evidence his parents were ―unambiguously informed‖ of that condition. Indeed, there is evidence

2

Raul Barajas demanded the police show him a warrant before he would allow them to enter,

3

indicating he believed a warrant was necessary for them to search his home. Furthermore,

4

although Perez had been on probation since November 2010, there is no evidence in the record

5

that the Rohnert Park Police ever conducted a probation search in the four years prior to this time.

6

Thus, even though the record reflects the Plaintiffs knew Perez was a probationer, ―[w]here, as

7

here, the government gave the [probationer]‘s co-resident no notice of its intent to search and the

8

co-resident did not consent to a search, the rationale for concluding that the co-resident has a

9

diminished privacy interest evaporates.‖ Thornton, 538 F. Supp. 2d at 1058; cf. Taylor, 2007 WL
1359713, at *1 n.4 (refusing to extend Randolph where ―it [wa]s undisputed that [the non-

11
United States District Court
Northern District of California

10

consenting co-inhabitant] was aware that [the other co-inhabitant] was on probation and that her

12

trailer was subject to searches.‖).6 Finally, police officers came to search Plaintiffs‘ home, as

13

opposed to officials from the probation department. Thus, while Defendants argue ―[i]t is simply

14

unreasonable that Plaintiffs would assume that their son‘s criminal conduct has no impact on their

15

privacy,‖ Defs.‘ Reply at 4, Dkt. No. 53, even though Plaintiffs knew Perez was a probationer

16

subject to some requirements and restrictions as a result of that probation, they did not necessarily

17

expect to reduce their expectations of privacy to the degree of acknowledging that police officers

18

could come and search their home at random and without any individualized suspicion of specific

19

wrong-doing just because they allowed their probationer son to live with them. Except for Perez‘s

20

probation and related criminal activities, there is nothing in the record reflecting that Plaintiffs had

21

any reduced expectation of privacy.7

22
6

23
24
25
26

The notion that advanced notice affects an individual‘s expectation of privacy has been
criticized, however. Specifically, if the ―notion that the warrant and probable cause requirements
will give way in the face of a strong government interest where the defendant had advance notice
of the government‘s claimed search authority, . . . then . . .the government would be free to subject
the rest of us to comprehensive surveillance ‗merely by announcing half-hourly on television‘ the
intention to do so.‖ 5 Wayne R. LaFave, Search and Seizure § 10.10(c) (5th ed. 2015) (quotation
omitted).
7

27
28

But see Perez, 884 F.2d at 1141-42 (indicating a co-resident‘s expectation of privacy is
diminished to the expectation of privacy of another co-resident when it held that if a jury found
that the suspect for whom the government had an arrest warrant lived with the plaintiff, then the
plaintiff did not have a claim for an unreasonable search under the Fourth Amendment). An arrest
20

1

Turning to the Government‘s interests, the Ninth Circuit has recognized the following state

2

interests related to searches of probationers: (1) ―an interest in apprehending violators of the

3

criminal law, thereby protecting potential victims from probationers‘ recidivism[;]‖ (2) ―an

4

interest in discovering criminal activity and preventing the destruction of evidence[;]‖ and (3) ―an

5

interest in a probationer‘s successful completion of probation and in his or her reintegration into

6

society.‖ King, 736 F.3d at 807-08. Defendants‘ arguments in this case confirm those interests

7

are significant here as well, asserting ―[t]he ability to monitor offenders such as Perez is crucial‖

8

because ―he has not been a successful probationer‖ and he has demonstrated ―that he would

9

commit more crimes and perhaps more serious crimes.‖ Defs.‘ Br. at 15.
Additionally, Defendants argue the government has an interest in conducting probation

11
United States District Court
Northern District of California

10

searches even where there are non-consenting co-inhabitants, arguing ―[i]f a co-occupant could

12

bar police entry at the door, the co-occupant could effectively thwart any unexpected search.‖ Id.

13

They assert ―[i]t wouldn‘t take long for probationers to post objecting sentinels at the doors to

14

thwart the purposes of probation.‖ Id. Plaintiffs respond that Randolph limited its holding in a

15

manner that alleviates Defendants‘ concern when it held that ―a search over a tenant‘s objection

16

would be unreasonable only ‗as to him,‘ not as to consenting co-tenants.‖ Pls.‘ Opp‘n at 7 n.3

17

(citing Randolph, 547 U.S. at 120). The Thorton court suggested the same rationale, noting ―[a]

18

co-habitant‘s objection to a search does not affect its reasonableness as to the probationer or

19

parolee and would not provide a basis for suppressing evidence against the probationer or

20

parolee.‖ 538 F. Supp. 2d at 1059 n.4 (citing Randolph, 547 U.S. at 119). Of course, these

21

arguments fail to consider that the police would be less likely to enter a home in such

22

circumstances if there is the possibility the probationer‘s co-inhabitant could bring a civil suit

23

against those officers. At the same time, Defendants‘ argument that a co-inhabitant could thwart

24

―any unexpected search‖ by refusing consent is limited. Specifically, Randolph does not speak to

25

searches conducted with probable cause or exigent circumstances (or perhaps other levels of

26
27
28

warrant, however, is issued only on probable cause and after the interposition of a neutral
magistrate—it is not based on the notion of consent.
21

1

suspicion). It is limited solely to instances where a physically present co-inhabitant expressly

2

refuses to consent to a warrantless search on the basis of consent by another resident. Randolph,

3

547 U.S. at 120. The combination of the foregoing arguments diminishes the government‘s

4

interest in in being able to conduct suspicionless searches based solely on a probationer‘s consent.

5

Randolph further notes ―the question whether the police might lawfully enter over

6

objection in order to provide any protection that might be reasonable is easily answered yes.‖ 547

7

U.S. at 118 (―[E]ven when . . . two persons quite clearly have equal rights in the place, as where

8

two individuals are sharing an apartment on an equal basis, there may nonetheless sometimes exist

9

a basis for giving greater recognition to the interests of one over the other . . . . [W]here the
defendant has victimized the third-party . . . the emergency nature of the situation is such that the

11
United States District Court
Northern District of California

10

third-party consent should validate a warrantless search despite defendant‘s objections[.]‖

12

(quotation omitted)). The Court acknowledged ―the undoubted right of the police to enter in order

13

to protect a victim[.]‖ Id. at 118-19; see also King, 736 F.3d at 809 (similarly acknowledging

14

―Defendant‘s expectation of privacy was small, in light of the serious and intimate nature of his

15

underlying conviction for the willful infliction of corporal injury on a cohabitant.‖). There is no

16

indication in this case that the government had an interest in protecting the Barajas family from

17

Perez or that they would have a diminished expectation of privacy based on the nature of Perez‘s

18

prior criminal activities as related to them or their home.

19

In sum, the Court finds the Randolph rule is properly applied to the facts in this case as the

20

government‘s limited interests in conducting this search do not outweigh Plaintiffs‘ continued

21

interest in the privacy in their home. Based on this record, a reasonable jury could find that

22

Plaintiffs can prove Defendants violated their Fourth Amendment rights by entering their home

23

and conducting a warrantless and suspicionless search of their joint premises over their express

24

objections. Consequently, in light of Randolph, the Court cannot grant Defendants‘ summary

25

judgment motion on the ground that their search was constitutional.

26

But Defendants also move for summary judgment on the ground that the Defendant

27

officers are entitled to qualified immunity for their decision to conduct a probation search of

28

Plaintiffs‘ home over their objections. In this respect, the Court agrees: Plaintiffs‘ rights under
22

1

these circumstances were not clearly established, i.e., a reasonable officer at the time would not

2

have known that a probation search over such objections was unconstitutional.

3

Plaintiffs argue that Randolph was decided eight years before the search at issue here, and

4

the weight of authority at that time held that Randolph applied to probation/parole searches. Pls.‘

5

Opp‘n at 14 (citing Thorton, Sanders, and Donald). On the other hand, Defendants cite Smith v.

6

City of Santa Clara, where the district court considered but did not decide whether Randolph

7

applies to probation searches. 2013 WL 164191, at *8 (N.D. Cal. Jan. 15, 2013) (―the Court

8

declines to resolve the underlying constitutional question of whether the Fourth Amendment

9

permits a probation search where another resident of the house is present and objects.‖).8 The
Smith court instead concluded the officers in that case were entitled to qualified immunity because

11
United States District Court
Northern District of California

10

―officers would be reasonable to believe that a rule that applies to searches generally does not

12

apply the same way to probation searches‖ and finding it was ―not clearly established that

13

Plaintiff‘s refusal could or should trump the consent included as a condition of [the probationer‘s]

14

probation.‖ Id. Plaintiffs distinguish Smith on the ground that in that case the officers had

15

reasonable suspicion, and thus ―[t]he question was whether, under Randolph, a co-tenant‘s

16

objection meant the officer needed a warrant supported by probable cause.‖ Pls.‘ Opp‘n at 15.

17

Plaintiffs pose the question here as ―whether a reasonable officer would have understood by

18

November 2014 that it was unlawful to perform a suspicionless search of a non-probationer‘s

19

home, where she was present and objected to the search.‖ Id.
The issue is whether a ―reasonable official‖ in the officer‘s position ―would have

20
21

understood that what he is doing violates that right.‘‖ Mattos, 661 F.3d at 442 (―Qualified

22

immunity shields an officer from liability even if his or her action resulted from a mistake of law,

23

a mistake of fact, or a mistake based on mixed questions of law and fact.‖ (quotation and internal

24

marks omitted)). Sanders, Thorton, and Donald are out-of-district decisions, and Thorton and

25
8

26
27
28

In deciding not to resolve the constitutional issue, the Smith court cited the parties‘ failure to
―present[] or brief[]‖ the issue. 2013 WL 164191, at *7. Perhaps as a consequence of the parties‘
limited briefing, the Smith court did not cite Thorton, Sanders, or any of the prior cases that
applied Randolph in the context of probation searches. Furthermore, as Plaintiffs point out, there
―was no dispute that the search in Smith was supported by reasonable suspicion, as an eye witness
had seen the probationer participate in a violent crime that same day.‖ Pls.‘ Opp‘n at 5 n.1.
23

1

Sanders both considered parolee cases rather than probationer cases. Smith, meanwhile, is a more

2

recent, in-district decision specifically dealing with probation searches. Given the uncertainty in

3

the case law and the general absence of authority on this issue, reasonable officers at the time of

4

the search could have concluded the issue of whether objecting co-residents could stop a probation

5

search was not yet resolved. Accordingly, the Court agrees the Defendant officers are entitled to

6

qualified immunity on the issue of conducting the probation search over Plaintiffs‘ objections.
b.

7

Level of Suspicion Required

At the same time, the Court cannot grant Plaintiffs summary judgment on the ground that

8

Defendants were required to have reasonable suspicion before entering Plaintiffs‘ home. First,

10

regardless of what consent Perez gave, if Plaintiffs objected to the search, their refusal in these

11
United States District Court
Northern District of California

9

circumstances may make the search unreasonable as to them; thus, as the Court has found that

12

Randolph may properly apply to this case, Plaintiffs‘ investigation into the level of suspicion

13

required to search probationers‘ homes may be unnecessary if a jury finds the officers searched

14

Plaintiffs‘ home over their objections. Indeed, Plaintiffs all but admit that is the case. In their

15

Opposition, Plaintiffs rephrase the issue in this case as follows: ―the question at issue here . . . [is]

16

whether the state‘s interest outweighs the privacy expectation of an objecting, non-probationer

17

tenant to be free from suspicionless searches of her home.‖ Pls.‘ Opp‘n at 5 n.1 (emphasis

18

added).9 To the Court, it does appear that issue is the proper one to be resolved.
The alternative—if the officers entered the home before Plaintiffs objected and based

19
20

solely on Perez‘s consent as part of his probation condition—is more complicated. The parties,

21

and indeed other courts, assume the co-resident probationer‘s consent is valid as against his other

22

co-residents.10 See, e.g., Donald, 903 A.2d at 321; Taylor, 2007 WL 1359713, at *1 n.4. The

23
9

24
25
26

In their Reply, Plaintiffs state they ―did not consent to the search and the government did not
notify them of its intent to search their home without suspicion of wrongdoing. In contrast, they
objected to the search, yet Officer Tatum entered through the back door with his gun drawn and
snuck up behind Plaintiffs while the officers at the front door were explaining why they were
there.‖ Pls.‘ Reply at 3, Dkt. No. 54.
10

27
28

But in Samson, the Supreme Court undermined this theory of consent as waiving a co-resident‘s
Fourth Amendment rights. Specifically, the petitioner in Samson argued against permitting
suspicionless searches of parolees, arguing that suspicionless searches entail a ―massive intrusion
on the privacy interests of third persons solely because they reside with a parolee[,]‖ and that
24

1

Supreme Court has likewise reiterated that, except in a Randolph type situation where there are

2

physically present, objecting co-occupants, ―consent by one resident of jointly occupied premises

3

is generally sufficient to justify a warrantless search[,]‖ because ―a person who shares a residence

4

with others assumes the risk that ‗any one of them may admit visitors, with the consequence that a

5

guest obnoxious to one may nevertheless be admitted in his absence by another[.]‘‖ Fernandez,

6

134 S. Ct. at 1132-33 (quoting Randolph, 547 U.S. at 120). As a consequence of this long-

7

standing rule, California courts have widely accepted that ―if others live with a probationer, the

8

shared areas of their residence may be searched based on the probationer‘s consent, given in

9

advance by agreeing to a search condition.‖ People v. Schmitz, 55 Cal. 4th 909, 917 (2012)
(analyzing, among other cases, People v. Woods, 21 Cal. 4th 688 (1999); People v. Robles, 23 Cal.

11
United States District Court
Northern District of California

10

4th 789 (2000); People v. Sanders, 31 Cal. 4th 318 (2003)).

12

Consequently, if the officers entered and searched Plaintiffs‘ home based solely on Perez‘s

13

probation condition and before Plaintiffs objected, the issue is whether they were permitted to do

14

so based on Perez‘s consent as part of his probation condition. Both sides accordingly analyze

15

what Perez agreed to as part of his probation conditions. Defendants assert ―[t]he Ninth Circuit

16

has ruled that California‘s consent/waiver system of probation allows the police to conduct a

17

suspicionless search under a Fourth Amendment analysis.‖ See Defs.‘ Br. at 1-2, 10 (citing King,

18

736 F.3d at 808). Meanwhile, Plaintiffs argue that, where the specific terms of a probation search

19

condition—like Perez‘s—state only that searches may be ―warrantless,‖ such searches must a least

20

be based on reasonable suspicion in light of United States v. Gomez, 2014 WL 1089288, at *14

21

(N.D. Cal. Mar. 14, 2014). Pls.‘ Br. at 6-7.

22

The majority opinion of the Ninth Circuit in United States v. King is binding on this Court.

23
24
25
26
27
28

―[m]any reasonable citizens would think twice about associating with a person who subjects them
to such risks.‖ Samson v. State of Cal., 2006 WL 353467, at *7-8 (U.S. 2006) (citation omitted).
The Supreme Court addressed ―petitioner‘s concern that California‘s suspicionless [parole] search
law frustrates reintegration efforts by permitting intrusions into the privacy interests of third
parties‖ but found it ―unavailing because that concern would arise under a suspicion-based
regime.‖ 547 U.S. at 856-57. The Supreme Court‘s response appears to suggest that consent of
one co-resident in the parole or probation context is not binding on co-residents, but rather that
those persons are entitled to protections under a suspicion based regime. But as far as this Court
can find, no other court has analyzed what the Supreme Court meant by its statement that such a
search would ―arise under a suspicion-based regime.‖
25

1

In a series of footnotes, the Ninth Circuit explains that ―[o]nly after the meaning and scope of a

2

search clause are determined, under state law, does the federal Fourth Amendment analysis

3

begin.‖ King, 736 F.3d at 815 n.3. According to the majority, ―[u]nder California law,

4

Defendant‘s agreement to the warrantless search condition as part of his state-court probation was

5

an agreement to be subject to suspicionless searches.‖ Id. (citing People v. Bravo, 43 Cal. 3d 600

6

(1987) (―[A] search condition of probation that permits a search without a warrant also permits a

7

search without ‗reasonable cause[.]‘‖)). Simply put, under California law, a probation search term

8

that only states searches may be ―warrantless‖ also permits suspicionless searches. Id.

9

Judge Berzon‘s dissent speaks adamantly against this interpretation, explaining ―King‘s
search condition did not plainly, clearly, and unambiguously provide notice that he was subject to

11
United States District Court
Northern District of California

10

searches without even reasonable suspicion.‖ See King, 736 F.3d at 814 (Berzon, J., dissenting).

12

The dissent thus disavows the ―majority‘s decision [which] . . . permit[s] such searches without

13

any quantum of suspicion, as long as the probationer has assented to a warrantless search

14

condition, no matter how ambiguously worded.‖ Id. at 816 (emphasis in original). Thus, when

15

Plaintiffs cite United States v. Gomez for the proposition that ―a search condition that includes

16

only the possibility of a warrantless search does not, without more, clearly and unambiguously

17

subject a probationer to a search without reasonable suspicion,‖ this appears to adopt the logic of

18

Judge Berzon‘s dissenting opinion. See Pls.‘ Reply at 6 (citing Gomez, 2014 WL 1089288, at *14

19

(N.D. Cal. Mar. 14, 2014)). Plaintiffs‘ conclusion that reasonable suspicion was required here

20

based on the ambiguity in Perez‘s search term is therefore at odds with the majority decision in

21

King. See King, 736 F.3d at 815 n.3 (noting that ―although the dissent plausibly parses King‘s

22

search clause, California law at the time this search condition was imposed on King interpreted

23

such clauses more broadly, to waive all claims of privacy. We are not at liberty to do otherwise.‖).

24

California law on this matter has not changed since the Ninth Circuit decided King—Bravo

25

still applies in interpreting the scope of a probation search term in California. And Bravo stands

26

for the proposition that ―a defendant who in order to obtain probation specifically agreed to submit

27

to search ‗with or without a warrant at any time‘‖ has waived not ―only the right to demand a

28

warrant[,]‖ but also ―‗whatever claim of privacy he might otherwise have had.‘‖ Bravo, 43 Cal. 3d
26

1

at 610 (quotation omitted)). Given Bravo and the Ninth Circuit‘s requirement in King that

2

California law dictates the scope of the probation condition, this Court is left with the inexorable

3

conclusion that when Edgar Perez agreed to his probation conditions allowing a ―warrantless

4

search/seizure‖ of his residence, he also consented to suspicionless searches of his residence.11
Thus, if a jury found Officer Tatum entered the home before Plaintiffs objected, Perez‘s

5

consent justified a suspicionless search of the home he shared with them. See Fernandez, 134 S.

7

Ct. at 1133 (reiterating Supreme Court‘s long-stated position that ―a person who shares a residence

8

with others assumes the risk that ‗any one of them may admit visitors, with the consequence that a

9

guest obnoxious to one may nevertheless be admitted in his absence by another[.]‘‖ (quoting

10

Randolph, 547 U.S. at 120)); see also Model Civ. Jury Instr. 9th Cir. 9.13 (2007) (―[A] search

11
United States District Court
Northern District of California

6

warrant is not required and a search is reasonable if a person in lawful possession of the area to be

12

searched knowingly and voluntarily consents to the search and there is not any express refusal to

13

consent by another person who is physically present and also in lawful possession of the area to be

14

searched.‖ (internal marks omitted)).12 This finding does not necessarily mean the search was

15
11

16
17
18
19
20
21

22
23

Judge John B. Streeter of the California Court of Appeal recently identified an important aspect
of probation search conditions in California, however. Specifically, while a parolee‘s search
condition is set by statute in California, Cal. Penal Code § 3067, conditions of probation may be
imposed only ―so long as they are ‗fitting and proper to the end that justice may be done, that
amends may be made to society for the breach of the law, for any injury done to any person
resulting from that breach, and generally and specifically for the reformation and rehabilitation of
the probationer.‘‖ People v. Douglas, 240 Cal. App. 4th 855, 857 (2015), as modified on denial of
reh’g (Oct. 19, 2015), review filed (Nov. 10, 2015) (quoting Cal. Penal Code § 1203.1(j)). ―The
courts therefore attempt to individualize the terms and conditions of probation to fit the offender,‖
meaning ―probation search clauses are not worded uniformly.‖ Id. (citing King, 736 F.3d at 811
n.1 (Berzon, J., dissenting)); see also People v. Romeo, 240 Cal. App. 4th 931, 951 (2015)
(Streeter, J.) (―[J]udges may limit the scope of the defendant‘s consent to searches for particular
contraband, such as drugs or stolen property, or place spatial limits on where searches may take
place. Some judges have ‗standard‘ probation terms for particular crimes and particular
circumstances . . . , but practices vary by county all over the state.‖).
12

24
25
26
27
28

The Comments to the Model Jury Instruction explain:
It is a well-settled exception to the warrant requirement that an
―individual may waive his Fourth Amendment rights by giving
voluntary and intelligent consent to a warrantless search of his
person, property, or premises.‖ United States v. Cormier, 220 F.3d
1103, 1112 (9th Cir. 2000), cert. denied, 531 U.S. 1174 (2001). See
also Ohio v. Robinette, 519 U.S. 33, 40 (1996). In Georgia v.
Randolph, 126 S. Ct. 1515, 1518 (2006), the Supreme Court
reiterated this rule: ―The Fourth Amendment recognizes a valid
27

1

automatically reasonable simply because of Perez‘s consent; it means only that the Court cannot

2

grant Plaintiffs summary judgment on the ground that reasonable suspicion was categorically

3

required to perform this search. See Fernandez, 134 S. Ct. at 1137 (―[T]he lawful occupant of a

4

house or apartment should have the right to invite the police to enter the dwelling and conduct a

5

search. Any other rule would trample on the rights of the occupant who is willing to consent.‖).

6

Consequently, Plaintiffs‘ Motion for Summary Judgment on the ground that reasonable suspicion

7

was necessarily required is denied and the officer Defendants are likewise entitled to qualified

8

immunity on this ground.

9
10

2.

Officer Tatum‘s Method of Entry May Be Unreasonable

Plaintiffs argue they are entitled to summary judgment because ―Defendants have a[n] []

United States District Court
Northern District of California

11

unlawful practice of entering homes through the back door (with guns drawn) while officers at the

12

front door are explaining why they are there.‖ Pls.‘ Br. at 7. In their Opposition, Plaintiffs explain

13

―Officer Tatum violated the requirement that officers knock and announce their presence and wait

14

a reasonable amount of time before entering.‖ Pls.‘ Opp‘n at 10. Thus, Plaintiffs assert

15

Defendants are at least not entitled to summary judgment given the circumstances of the search.

16

The Court agrees that a reasonable jury could find that evidence demonstrates the search

17

was unreasonable and thus Defendants are not entitled to summary judgment. As Plaintiffs

18

submit, while Officers Rodriguez and Snodgrass approached the Barajas‘ front door, Officer

19

Tatum let himself into the Barajas‘ backyard through a closed gate, and—despite there being no

20

suspicion of wrongdoing—drew his firearm, and went inside the home through a back sliding

21

door. Pls.‘ SUF ¶¶ 21, 23. He did not knock, and was not invited into the home. L. Barajas Decl.

22
23
24
25
26
27
28

warrantless entry and search of premises when police obtain the
voluntary consent of an occupant who shares, or is reasonably
believed to share, authority over the area in common with a cooccupant who later objects to the use of evidence so obtained.‖ Id. at
1518. The Court, however, also held that, as between a wife‘s
consent to a search of the family residence and her husband‘s refusal
to consent, ―a physically present co-occupant‘s stated refusal to
permit entry prevails, rendering the warrantless search unreasonable
and invalid as to him.‖ Id. at 1519.
Comments, Model Civ. Jury Instr. 9th Cir. 9.13 (2007).
28

1

¶ 3 (―[Officer Tatum] did not knock and did not announce he was entering‖). Once inside, Officer

2

Tatum searched the back of the home (including a back room, the dining area and the kitchen)

3

before he closed up behind the family, so that they were surrounded by officers. Id.; Tatum Dep.

4

58:2-9. Defendants have not shown there was any exigency for the search, and even if Officer

5

Tatum heard Plaintiffs objecting to the search, a rational jury could reasonably believe Plaintiff‘s

6

version of the facts, i.e., that Officer Tatum entered onto Plaintiffs‘ property with gun drawn and

7

without announcing his presence, and conclude that his entry was unreasonable under the totality

8

of the circumstances. Indeed, a jury could find Officer Tatum‘s method of entry in tension with

9

the goals of the knock and announce rule, risking both officer safety, safety of the home‘s

10

inhabitants, and generally adding to the unnecessary escalation of the situation.

United States District Court
Northern District of California

11

At the same time, the Court cannot grant Plaintiffs summary judgment. Plaintiffs cite no

12

authority supporting that Officer Tatum‘s actions violated the Fourth Amendment as a matter of

13

law. Rather, they tacitly ask the Court to assume the role of factfinder and determine the

14

reasonableness of Officer Tatum‘s conduct. But this is not the Court‘s role, particularly where the

15

facts are still unclear as to precisely how and when he entered the home, what may have been

16

communicated between the officers prior to entry, and what the officers knew about Perez‘s

17

history with drugs and violence, etc. As the Ninth Circuit reiterated, ―it is generally inappropriate

18

to grant summary judgment on the reasonableness of police conduct[.]‖ Eid v. Alaska Airlines,

19

Inc., 621 F.3d 858, 868 (9th Cir. 2010) (citing Howell v. Polk, 532 F.3d 1025, 1027 (9th Cir.

20

2008) (per curiam) (―[W]e frequently entrust juries with the task of determining the

21

reasonableness of police conduct.‖)). Given the available facts, the reasonableness of Officer

22

Tatum‘s entry is a question for the jury. Id. (―[S]ummary judgment is generally an inappropriate

23

way to decide questions of reasonableness because the jury‘s unique competence in applying the

24

reasonable man standard is thought ordinarily to preclude summary judgment.‖ (quotation

25

omitted)).

26

Finally, as to whether Officer Tatum is entitled to qualified immunity for his method of

27

entry, Plaintiffs argue that ―[w]hile the Ninth Circuit appears not to have reviewed a case with an

28

analogous separate entry, it is clear from case law analyzing the knock and announce rule that
29

1

Officer Tatum‘s entry was flatly inconsistent with the rule‘s purpose.‖ Pls.‘ Opp‘n at 12. They

2

argue the rule ―protects privacy and dignity interests that can be destroyed by a sudden entrance

3

and safeguards citizens and police from unnecessary violence resulting from surprise.‖ Id. As

4

such, they contend Officer Tatum‘s method of entry was clearly established as unreasonable. Id.
If the jury accepts as true Plaintiffs‘ version of the facts, with Officer Tatum failing to

5
6

knock and announce his presence, sidling through the Barajas‘ back door with gun drawn, and

7

surprising the Barajas family when they found him standing inside their home, then the Court

8

agrees with Plaintiffs that a reasonable officer in such circumstances would be on notice that his

9

conduct was counter to aims and purpose of the knock and announce rule and could be considered
an unreasonable method of entry under the Fourth Amendment. As noted previously,

11
United States District Court
Northern District of California

10

unannounced entries risk the safety of the officers as an occupant could reasonably mistake the

12

entry as an invasion and take defensive measures and likewise risk the safe of occupants in the

13

home by causing panic or other forms of irrational conduct. See Green, 420 F.3d at 698. The

14

knock and announce rule aims to prevent the escalation of tensions when law enforcement enters a

15

home as well as to protect the sanctity of the home and give occupants an opportunity to prepare

16

for the officers‘ entry. Richards, 520 U.S. at 393. Under Plaintiffs‘ version of events, Officer

17

Tatum‘s actions both risked the escalation of situation and encroached on Plaintiff‘s privacy and

18

the sanctity of their home, without any exigent circumstances and suspicion of danger or wrong-

19

doing justifying his method of entry. And even if Officer Tatum heard Plaintiffs objecting to the

20

search, a reasonable officer could nonetheless conclude it was still violative of the Fourth

21

Amendment to enter Plaintiffs‘ home in the way he did. Thus, even though Plaintiffs have not

22

presented case law on all fours with this case, considering the factors courts use to assess whether

23

the method of an officer‘s entry was reasonable, and taking the facts in the light most favorable to

24

Plaintiffs, a reasonable officer in Officer Tatum‘s position had fair warning his conduct was

25

unconstitutional.
In sum, summary judgment is not appropriate on either Plaintiffs‘ or Defendants‘ motions

26
27

concerning Officer Tatum‘s method of entry.

28

//
30

1

3.

Search May Be Unreasonable If Conducted to Harass

2

Finally, Plaintiffs argue Defendants are not entitled to summary judgment because a

3

reasonable jury could find the officers intended to harass Perez and his family when they decided

4

to search the Barajas‘ home. In California, ―probation search is a recognized exception to the

5

warrant requirement as long as the decision to search is not arbitrary or intended to harass.‖

6

People v. Downing, 33 Cal. App. 4th 1641, 1650 (1995) (emphasis added) (citing Bravo, 43 Cal.

7

3d at 608); see Bravo, 43 Cal. 3d at 610 (searches of probationers may not be conducted for

8

―reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate

9

law enforcement purposes. . . . [and] a condition of probation does not permit searches undertaken
for harassment[.]‖); see also King, 736 F.3d at 810 (indicating a probation search could not be

11
United States District Court
Northern District of California

10

―conducted for illegitimate reasons, such as harassment.‖).

12

Plaintiffs point out that Perez has had multiple confrontations with Officers Tatum and

13

Rodriguez. Pls.‘ Opp‘n at 13. In November 2010, Officers Tatum and Rodriquez were in an

14

altercation with Perez in front of his home and his family, during which they struck and tazed him.

15

Id.; Pls.‘ SUF ¶¶ 1-6; L. Barajas Decl. ¶ 2. In the six months prior to the incident in this case,

16

Officer Tatum pulled Perez over while driving at least two times, admitting that the reason may

17

have been solely because Perez was on probation. Pls.‘ Opp‘n at 13 (citing Pls.‘ SUF ¶¶ 47-48).

18

Officer Tatum was also the one who decided the officers should perform the November 14, 2014

19

search. Id. (citing Pls.‘ SUF ¶ 8). Then, on November 14, when talking with Plaintiffs, Officer

20

Rodriguez made a point to identify himself as the same officer involved in the November 2010

21

incident. Id.; Gonzales Decl., Ex. D (R. Barajas Dep.) 30:20-31:10, Dkt. No. 41-4. He also told

22

Raul Barajas that Perez had broken his arm. Id. As Plaintiffs point out, ―[a] rational juror could

23

easily conclude that Officer Rodriguez made this statement in order to elicit a response from Mr.

24

Barajas.‖ Pls.‘ Opp‘n at 14. Finally, although Officer Snodgrass was not present at the November

25

2010 incident, he testified he knew about Officer Tatum‘s and Officer Rodriguez‘s history with

26

Perez and that, at some point earlier in the day of the November 14 search, Officers Tatum and

27

Rodriguez brought up the November 2010 incident. Gonzales Decl., Ex. C (M. Snodgrass Dep.)

28

74:4-13, Dkt. No. 41-3.
31

1

This evidence is not conclusive, but a rational jury could conclude based on these officers‘

2

history with Plaintiffs and their son, and their interactions with Plaintiffs on the day of the search,

3

that they conducted the search for purposes of harassment rather than related to probation or other

4

legitimate law enforcement purposes. See, e.g., Smith v. City of Oakland, 538 F. Supp. 2d 1217,

5

1227 (N.D. Cal. 2008), aff’d, 379 F. App‘x 647 (9th Cir. 2010) (albeit in a parole search case,

6

finding that ―where the parole search was not based on probable cause or reasonable suspicion, the

7

jury was properly instructed to examine the motives and intent of [the] Officers . . . to insure that,

8

at the very least, the suspicionless search was not arbitrary, capricious, or harassing.‖). As such,

9

this is yet another basis for which the Court cannot grant Defendants summary judgment.

10

As to qualified immunity, Plaintiffs argue ―[a] search performed to harass is

United States District Court
Northern District of California

11

unconstitutional and no reasonable officer could have believed otherwise in November 2014.‖

12

Pls.‘ Opp‘n at 12. In doing so, they cite both the Supreme Court‘s opinion in Samson v.

13

California, as well as the Ninth Circuit‘s opinion in United States v. King, both of which condemn

14

harassing searches. Id.; see Samson 547 U.S. at 856 (recognizing California‘s prohibition on

15

harassing searches as a procedural safeguard under the Fourth Amendment); King, 736 F.3d at 810

16

(probation may not be ―conducted for illegitimate reasons, such as harassment.‖). The Court

17

agrees with Plaintiffs that if a jury found the Defendant officers intended to harass Plaintiffs or

18

Perez in conducting the search, then a reasonable officer in such a position would understand that

19

such actions violate Plaintiffs‘ rights to be free from unreasonable searches. Accordingly, the

20

officers are not entitled to qualified immunity on this ground.

21

4.

Summary of Constitutional Violations

22

In sum, the Court finds Defendants are not entitled to summary judgment on the ground

23

that their search was reasonable. First, a reasonable jury could conclude it was unreasonable for

24

the officers to enter Plaintiffs‘ home over their objections without a warrant and without

25

reasonable suspicion. Second, such a jury could also find Officer Tatum‘s method of entry into

26

the home was unreasonable. Finally, Plaintiffs have also provided evidence raising a triable issue

27

of fact about whether the officers‘ purpose in conducting the search was to harass. Under these

28

circumstances, the Court cannot grant Defendants summary judgment on the grounds that the
32

1
2

search was per se reasonable and constitutional.
Likewise, the Court cannot grant Plaintiffs summary judgment on the ground that the

3

search was per se unreasonable because the officers did not have reasonable suspicion to search or

4

on the ground of Officer Tatum‘s method of entry. Instead, given the facts available, the Court

5

finds the determination of the reasonableness of the officers‘ conduct is more appropriately

6

considered by a jury. Nonetheless, the Court grants the Defendant officers qualified immunity on

7

the narrow ground that it was not clearly established that the Randolph rule applies in the context

8

of probation searches. Accordingly, the Defendant officers are immune from liability on the issue

9

of whether it was unreasonable for them to enter Plaintiffs‘ home over their objections to conduct
a suspicionless probation search as consented to by their son and co-occupant. They must

11
United States District Court
Northern District of California

10

nevertheless stand trial as to the reasonableness of their search with respect to whether the method

12

of entry was reasonable and whether the search was intended to harass.

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5.

Monell Liability

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Plaintiffs‘ Monell liability evidence focuses almost exclusively on the City‘s policy or

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custom concerning probation searches conducted without suspicion. The Court has not found this

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theory to be a viable constitutional claim, however, and as such, Plaintiffs cannot maintain a

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related Monell claim.

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The Court has, however, found three constitutional claims that could be viable if proven by

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Plaintiffs, i.e., (1) a potential violation of the Randolph rule, (2) Officer Tatum‘s potentially

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unreasonable method of entry, and (3) the potential harassment of citizens through searching their

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homes. Thus, the issue is whether a Rohnert Park policy or custom was the moving force behind

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these potential constitutional violations. See Dougherty, 654 F.3d at 900 (―A government entity

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may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom of the entity

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can be shown to be a moving force behind a violation of constitutional rights.‖ (emphasis added)).

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Defendants generally argue that none of the potential constitutional violations in this case

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can attach liability to the City because ―[i]t is black letter law in the Ninth Circuit that liability for

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improper custom may not be predicated on isolated or sporadic incidents.‖ Defs.‘ Br. at 14 (citing

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Hunter, 652 F.3d at 1233). While that is generally the case, Hunter also explains in a footnote that
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―in some circumstances a policy of inaction, such as a policy of failing to properly train

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employees, may form the basis for municipal liability.‖ See Hunter, 652 F.3d at 1235 n.8

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(citations omitted; emphasis in original)). Hunter cites Connick v. Thompson in recognizing that

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―[i]n limited circumstances, a local government‘s decision not to train certain employees about

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their legal duty to avoid violating citizens‘ rights may rise to the level of an official government

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policy for purposes of § 1983.‖ Id. (quoting Connick, 131 S. Ct. at 1359).
The Ninth Circuit has explained that ―the inadequacy of police training may serve as the

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basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the

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rights of persons with whom the police come into contact.‖ Flores v. Cty. of Los Angeles, 758

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F.3d 1154, 1158 (9th Cir. 2014) (quoting City of Canton, 489 U.S. at 388). A plaintiff ―must

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demonstrate a ‗conscious‘ or ‗deliberate‘ choice on the part of a municipality in order to prevail on

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a failure to train claim.‖ Id.; see also City of Canton, 489 U.S. at 389 (―[M]unicipal liability under

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§ 1983 attaches where—and only where—a deliberate choice to follow a course of action is made

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from among various alternatives‖ by city policymakers.‖ (quotation omitted)). ―[T]he focus must

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be on adequacy of the training program in relation to the tasks the particular officers must

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perform.‖ City of Canton, 489 U.S. at 390-91 (―That a particular officer may be unsatisfactorily

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trained will not alone suffice to fasten liability on the city, for the officer‘s shortcomings may have

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resulted from factors other than a faulty training program.‖). Thus, ―[t]he issue in a case like this

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one . . . is whether that training program is adequate; and if it is not, . . . whether such inadequate

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training can justifiably be said to represent ‗city policy.‘‖ Id. at 390.

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Furthermore, ratification of the decisions of a subordinate by an official with final

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decision-making authority can be a policy for purposes of municipal liability under § 1983. See

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Trevino v. Gates, 99 F.3d 911, 920-21 (9th Cir. 1996) (―We have found municipal liability on the

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basis of ratification when the officials involved adopted and expressly approved of the acts of

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others who caused the constitutional violation.‖), holding modified on other ground by Navarro v.

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Block, 250 F.3d 729 (9th Cir. 2001). But ―the mere failure to investigate the basis of a

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subordinate‘s discretionary decisions‖ is not considered a ratification of those decisions. City of

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St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988). Moreover, mere acquiescence in a single
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instance of alleged unconstitutional conduct is not sufficient to demonstrate ratification of a

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subordinate‘s acts. See Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992).

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Accordingly, bearing in mind that a Monell claim can be based on a policy of action or

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inaction, the Court turns to the potential municipal claims in this case. First, as to whether the

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City has a policy allowing officers to harass citizens through searching their homes, there is no

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evidence to support this claim. Specifically, there is no evidence suggesting the City had an active

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policy or practice that officers should harass citizens by searching or that a final decision-making

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authority in the City ratified such conduct. Furthermore, to the extent such a claim could be

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premised on a failure to train theory, ―[w]here the proper response . . . is obvious to all without
training or supervision, then the failure to train or supervise is generally not ‗so likely‘ to produce

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a wrong decision as to support an inference of deliberate indifference by city policymakers to the

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need to train or supervise.‖ Flores, 758 F.3d at 1160 (finding that in light of the regular law

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enforcement duties of a police officer there was not a patently obvious need for the city to train

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officers not to rape young women). Given (1) the Defendant officers‘ general law enforcement

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duties, (2) the longstanding California law that ―a condition of probation does not permit searches

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undertaken for harassment[,]‖ Bravo, 43 Cal. 3d at 610,13 and (3) the absence of evidence showing

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the likelihood that different training would have changed the search in this case, there is no

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patently obvious need for the City to have specifically trained Officers not to harass people

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through searches. Accordingly, liability does not attach to the City for the potential harassment in

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this case.

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Second, as to Officer Tatum‘s method of entry, the Court finds Plaintiffs have raised

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enough specific facts to preclude summary judgment for the City. Plaintiffs point to the testimony

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of Sergeant Jeff Justice, the City‘s 30(b)(6) witness designated to testify about its training and

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practices pertaining to probation searches, who testified he trained Rohnert Park police officers to

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conduct probation searches in this manner. Pls.‘ SUF ¶¶ 30, 34. Although it is unclear what he

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See also Cal. Penal Code § 3067(d) (in the context of parole searches, noting ―[i]t is not the
intent of the Legislature to authorize law enforcement officers to conduct searches for the sole
purpose of harassment.‖).
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means by ―in this manner,‖ Sergeant Justice, testifying on behalf of the City, also stated that, even

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absent exigent circumstances, if an officer at the back of a home ―doesn‘t know whether or not

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[the officers in the front] made contact with anyone and he knows that they‘ve attempted or are

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going to be attempting contact, and he sees a way into the house, then he could go in through that

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way into the house[,]‖ with gun drawn and before any words are exchanged. Gonzalez Decl., Ex.

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D (Justice Dep.) at 44:3-12, Dkt. No. 38-4. Additionally, Officer Snodgrass testified he did not

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report anything to his supervisors about Officer Tatum‘s entry because having an officer enter

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through the back before officers enter through the front is the Rohnert Park Police Department‘s

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―practice. That‘s happened before.‖ Pls.‘ SUF ¶ 28. Indeed, Officer Tatum has entered through a
rear door during probation searches 50-60 times before other officers have entered through the

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Northern District of California

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front door and testified that this was consistent with his training. Id. ¶¶ 25-27. While these

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statements do not necessarily mean it is Rohnert Park‘s normal practice to have officers enter

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homes in the manner done in this case, this evidence at least creates a genuine question of material

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fact about the City‘s policy or practice related to the method of entry in probation searches, and

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such a question is properly resolved by jury.
However, as to the potential violation of the Randolph rule, the Court concludes the parties

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have not sufficiently addressed Monell liability for this claim. Both parties focused more on

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whether Randolph actually applied in this case but did not devote much argument or evidence as

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to whether the City‘s action or inaction was the moving force behind the potential violation of the

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Randolph rule. Thus, the Court denies Defendants‘ Motion for Summary Judgment as to

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Plaintiffs‘ § 1983 claims against the City as to the Randolph rule, but does so without prejudice in

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the event Defendants wish to file another motion addressing the City‘s possible liability on this

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claim.14 See Galbraith v. Cty. of Santa Clara, 2005 WL 2894782, at *4 (N.D. Cal. Nov. 2, 2005)

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(denying summary judgment to county without prejudice where parties had not sufficiently

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14

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But see Owens v. City of Independence, 445 U.S. 622, 650-52, 657 (1980) (holding individual
officers‘ entitlement to qualified immunity does not immunize municipalities from Monell
liability); see also Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1186 n.7 (9th Cir. 2002) (noting
―a municipality may be liable if an individual officer is exonerated on the basis of the defense of
qualified immunity‖).
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addressed municipal liability or whether sufficient evidence supported claims against the county).

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CONCLUSION

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Based on the analysis above, the Court hereby GRANTS IN PART and DENIES IN

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PART Defendants‘ Motion for Summary Judgment and DENIES Plaintiffs‘ Motion for Summary

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Judgment as follows:

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(1) The Court DENIES Defendants summary judgment on the ground that the search in

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this case was constitutional as there are genuine disputes of material fact about (1)

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whether the search was conducted over the express objections of the physically present

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Plaintiffs; (2) whether Officer Tatum‘s method of entry was unreasonable; and (3)

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United States District Court
Northern District of California

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whether the search was conducted to harass.
(2) The Court GRANTS Defendant officers qualified immunity on the claim that they

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violated Plaintiffs‘ rights under the rule set forth in Georgia v. Randolph, as it was not

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clearly established that this rule applied in the context of probation searches.

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(3) The Court DENIES Defendant officers qualified immunity on Plaintiffs‘ claims that
the search was conducted to harass.
(4) The Court DENIES Officer Tatum qualified immunity on Plaintiffs‘ claims that his
method of entry was unreasonable.
(5) The Court DENIES Plaintiffs summary judgment on the ground that reasonable

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suspicion was required to perform the search in this case under the Ninth Circuit‘s

20

decision in King and the California Supreme Court‘s decision in Bravo. The Court

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thus also GRANTS Defendant officers qualified immunity on this claim.

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(6) The Court GRANTS the City summary judgment on Plaintiffs‘ municipal liability

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claim related to whether a City policy or custom was the moving force behind the

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officers‘ potential decision to conduct the search to harass.

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(7) The Court DENIES the City summary judgment on Plaintiffs‘ municipal liability claim

26

concerning whether a City policy or custom was the moving force behind Officer

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Tatum‘s potentially unreasonable method of entry.

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(8) The Court DENIES the City summary judgment WITHOUT PREJUDICE on
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Plaintiffs‘ municipal liability claim concerning whether a City policy or custom was

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the moving force behind the potential Randolph rule violation.

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A related scheduling Order is forthcoming.

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IT IS SO ORDERED.

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Dated: February 5, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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United States District Court
Northern District of California

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