Court: Home of girlfriend cannot be searched

Wednesday, May 31, 2006 | 7:24 a.m.

CARSON CITY - Federal probation officers cannot search the home of an ex-felon's girlfriend for contraband without a warrant, a federal appeals court has ruled.

A panel of the 9th U.S. Circuit Court of Appeals has overturned the felony conviction of Curtis R. Howard of Las Vegas, sentenced to 10 years in prison for receiving a stolen gun.

The decision, written by Judge Jay S. Bybee, said federal officers conducted an unconstitutional search of Tammi Barner's apartment. They found the gun there and charged Howard with the offense.

Judge John Noonan concurred in the ruling, but expressed doubts, saying it would permit parolees to have a "safe house" in which they could hide weapons.

Howard was released from prison in April 2003 after serving time for bank robbery. His parole conditions included allowing "the warrantless search of his residence, person, property and automobile at any time" to ensure compliance with his release terms.

A confidential informant told Howard's probation officer that the parolee was staying at Barner's apartment and that a gun was hidden there. At the time, Howard maintained another residence.

Officers watched Barner's apartment for two weeks, but Howard never showed up. The probation officer then secured an order from the probation department to search both addresses.

On March 30, 2004, Howard and Barner left her West Bonanza apartment and started walking in opposite directions. Howard was detained. When officers told Barner they were going to search her apartment, she refused to give permission. She insisted Howard did not live at the apartment and said he did not have a key.

The warrantless search turned up the gun, wrapped in a hat in a closet. Howard said the gun was his, and later pleaded guilty, reserving the right to appeal the search's validity.

Bybee wrote that the mere fact Howard had visited Barner was not sufficient to create probable cause he lived in her apartment. Howard's parole condition regarding searches without a warrant referred to his residence, and Bybee said there was evidence to suggest Howard continued to live elsewhere.

But Noonan wrote, "In effect, Howard is given a safe house where, as long as he has a cooperative girlfriend, he can stash his gun." The decision, he said, is the result of "rigid application" of prior decisions by the court.