United States v. Horsley Sohappy , 392 F. App'x 557 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30429
Plaintiff - Appellee, D.C. No. 2:09-cr-02037-EFS-1
v.
MEMORANDUM *
HORSLEY THEROW SOHAPPY,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted August 5, 2010
Seattle, Washington
Before: CANBY, THOMPSON and BERZON, Circuit Judges.
Horsley Therow Sohappy appeals the district court’s denial of his motion to
suppress evidence law enforcement officers seized during the search of a residence.
We reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The officers did not have probable cause to believe that Sohappy was living
at the searched residence. The single failed attempt to locate Sohappy at his listed
residence was insufficient to suggest he was living elsewhere. See United States v.
Howard, 447 F.3d 1257, 1266 (9th Cir. 2006). That Sohappy failed to report to his
probation officer the morning after he was released does not establish probable
cause as to where he was living.
Second, the information provided by Diaz during his post-arrest interview
was only minimally pertinent. Diaz was jailed two days after Sohappy was
released. So he could have known, at most, that Sohappy spent two nights at the
searched residence. Moreover, in light of their history of altercations, Diaz had
good reason to falsify information about Sohappy. Subsequent corroborating
information confirmed only that Sohappy had visited the residence, not that he was
living at the residence.
Third, that Officer Hisey had previously contacted Sohappy at the searched
address is not evidence of residency there. The record does not indicate how
recently the contact occurred, and Sohappy had subsequently provided updated
contact information. See Howard, 447 F.3d at 1267 (“[T]he mere fact that [an
officer] had visited [the defendant] there in early February was not sufficient to
create probable cause that [the defendant] lived there at the end of March.”);
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Cuevas v. De Roco, 531 F.3d 726, 734 (9th Cir. 2008) (holding out-of-date
residency information did not support a probable cause determination when more
recent records indicated the defendant lived at a different residence).
Fourth, Luna, Mora’s mother, told Officer Nelson that Sohappy was a friend
of her family and had been at the residence the night before, but was not staying
there. Suspicion that Luna’s denial is not credible because of her relationship to
Sohappy requires an inference that Luna understood that an admission of
Sohappy’s residency at the address would be more incriminating than her
admission that Sohappy was recently present at the residence. While not an
impossible inference, it is at least an unlikely one, absent some reason to believe
Luna was quite legally sophisticated.
Finally, that Mora ultimately admitted Sohappy was inside the residence at
the time of the search speaks to Sohappy’s presence at the address, not his
residency there. Evidence of mere presence at a residence, standing alone, is
insufficient to establish probable cause that an individual under community
supervision is living at the residence. See Howard, 447 F.3d at 1267–68.
We also conclude that the search of the residence was not justified by
“reasonable cause” to believe that Mora violated one of her community supervision
conditions. Mora’s refusal to identify the individual inside the residence was not
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necessarily a failure to “abide by [an] . . . instruction,” as her supervision
agreement required her to do. The officer’s inquiry as to who was present in the
residence did not itself constitute a “verbal instruction.” Ordinarily, when asked a
question, we may decline to answer it. That Mora was a parolee does not change
this basic linguistic convention. Absent an explicit directive to respond, her refusal
to answer did not constitute a failure to abide by an instruction.
Any doubt as to whether to interpret the interaction with the officer as
including an instruction to answer the question posed is resolved by the Fifth
Amendment concerns raised by the government’s proposed interpretation of
Mora’s supervision condition. As Sohappy was in violation of his community
custody conditions and possibly in possession of a firearm, a response from Mora
posed a risk of self-incrimination for violation of various state criminal laws. See,
e.g., Wash. Rev. Code §§ 9A.76.050; 9A.76.080 (prohibiting harboring or
concealing, with the intent to delay apprehension, someone being sought for
violation of community supervision); Wash. Rev. Code § 9.41.040 (prohibiting
someone previously convicted of a felony from having a firearm in her control).
Accordingly, requiring her to identify the individual inside the residence could
constitute a state practice improperly penalizing Mora’s exercise of her Fifth
Amendment privilege. See Minnesota v. Murphy, 465 U.S. 426, 435 (1984);
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United States v. Saechao, 418 F.3d 1073, 1075 (9th Cir. 2005). “[T]he State could
not constitutionally carry out a threat to revoke probation for the legitimate
exercise of the Fifth Amendment privilege.” Murphy, 465 U.S. at 438. We
therefore decline to interpret Mora’s supervision condition as requiring her to
answer the officer’s questions regarding Sohappy.
Nor could the officer’s mistaken interpretation of Mora’s supervision
agreement justify the search. An erroneous understanding of the law cannot
establish reasonable cause to believe Mora violated a supervision condition. See
Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004).
We conclude that Officer Nelson did not have “reasonable cause” to believe
Mora violated a supervision condition.
The judgment of the district court is REVERSED and the plea of guilty is
VACATED.
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