U.S. v. Baker

• Decision Date: 20 September 2011
• Docket Number: No. 10–10223.,10–10223.
• Citation: 2011 Daily Journal D.A.R. 14295,658 F.3d 1050,11 Cal. Daily Op. Serv. 12018
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Robert BAKER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

658 F.3d 1050

11 Cal. Daily Op. Serv. 12,018

2011 Daily Journal D.A.R. 14,295

UNITED STATES of America, Plaintiff–Appellee,

v.Robert BAKER, Defendant–Appellant.

No. 10–10223.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 2011.Filed Sept. 20, 2011.

Jay A. Nelson and Ethan A. Balogh, Coleman & Balogh LLP, San Francisco, CA, for the defendant-appellant.Susan Gray and Erika R. Frick, Assistant United States Attorneys, San Francisco, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Northern District of California, Charles R. Breyer, District Judge, Presiding. D.C. No. 3:09–cr–00966–CRB–2.

Before: BARRY G. SILVERMAN and SUSAN P. GRABER, Circuit Judges, and BARBARA M.G. LYNN, District Judge.^*Opinion by Judge GRABER; Concurrence by Judge GRABER.

OPINION

GRABER, Circuit Judge:

A jury convicted Defendant Robert Baker of misdemeanor possession of methamphetamine but acquitted him of more serious felony drug charges. The district court sentenced Defendant to three years' probation. Defendant timely appeals his conviction and two conditions of probation, one permitting suspicionless searches and one requiring Defendant to submit to DNA collection. We affirm the conviction and the suspicionless search condition but, because the district court exceeded its statutory authority by imposing the DNA condition, we reverse with instructions to strike that condition and to order expungement of DNA records collected pursuant to it.

FACTUAL AND PROCEDURAL HISTORY

After a high-speed chase in northern California, police arrested the driver, whose involvement is not material here, and the passenger, who was Defendant. Police officers discovered in the vehicle 10 grams of a white substance that later proved to be 99.1% pure methamphetamine.

The government indicted Defendant for crimes involving a much greater amount of methamphetamine than the amount found in the vehicle: one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine and one count of distribution and possession with intent to distribute 50 grams or more of methamphetamine. The government's theory of the case was that, during the car chase, Defendant had thrown large quantities of methamphetamine from the car and that those amounts clearly totaled more than 50 grams of methamphetamine. The only evidence supporting that theory was the testimony of two police officers who were in the lead pursuit vehicle during the highspeed chase. Those officers testified that, twice, their police car was pelted by bags, thrown from Defendant's vehicle, each containing a large quantity of a white substance that created a “snowstorm” effect for a period of three to five seconds. The government argued that the jury should infer that those bags contained methamphetamine and that Defendant intended to distribute a large amount of methamphetamine.

At trial, Defendant exposed several weaknesses in the government's case, including the fact that, during the chase, neither of the testifying officers had relayed the occurrence of a “snowstorm” to police dispatch. Most relevant here, Defendant also called as his sole witness Deputy Michael Thompson. Deputy Thompson participated in the high-speed chase and never saw the “snowstorm” described by the two other officers.

The defense strategy worked. The jury acquitted Defendant of both felony counts but found him guilty of the lesser-included misdemeanor offense of knowingly and intentionally possessing methamphetamine, in violation of 21 U.S.C. § 844(a). In a special verdict form, the jury found that the offense involved 9.91 grams of actual methamphetamine, which corresponds precisely to the amount found in Defendant's vehicle.

Defendant moved to dismiss the indictment in its entirety because of an allegedly egregious violation by the government of its Brady obligations. According to Defendant, the government originally listed Deputy Thompson on its witness list but later removed him. Defendant's theory, repeated on appeal, is that the government removed Deputy Thompson from the witness list once it learned that he had not seen a “snowstorm” and that the government failed to disclose that information, in violation of its Brady obligations. The district court denied the motion.¹

The district court sentenced Defendant to three years' probation. Defendant challenged, among other things, two conditions of probation. The first challenged condition permits suspicionless searches by a probation officer or other law enforcement officer. The second challenged condition requires Defendant to submit to DNA collection. The district court rejected Defendant's challenges to those conditions and issued a final judgment that includes the conditions. Defendant timely appeals.

STANDARDS OF REVIEW

“We review de novo challenges to a conviction based on alleged Brady violations.” United States v. Woodley, 9 F.3d 774, 777 (9th Cir.1993). “We are divided as to whether the denial of a motion to dismiss an indictment is reviewed de novo or for an abuse of discretion.” Id. As in Woodley, “[w]e need not decide which standard applies here because we affirm the ruling under either standard.” Id.

We review de novo the district court's authority to impose a condition of probation. United States v. Parrott, 992 F.2d 914, 920 (9th Cir.1993). The government states, correctly, that “we review conditions of probation for an abuse of discretion.” United States v. Clark, 918 F.2d 843, 847 (9th Cir.1990), overruled on other grounds by United States v. Keys, 95 F.3d 874 (9th Cir.1996) (en banc). But Defendant argues that the district court exceeded its constitutional authority by imposing the search condition and exceeded its statutory authority by imposing the DNA condition. Because Defendant argues that the district court exceeded its legal authority, no discretion is involved; our review is de novo. Parrott, 992 F.2d at 920; see United States v. Begay, 622 F.3d 1187, 1193 (9th Cir.2010) (“We review issues pertaining to statutory interpretation and constitutional law de novo.”), cert. denied, ––– U.S. ––––, 131 S.Ct. 3026, 180 L.Ed.2d 852, and ––– U.S. ––––, 131 S.Ct. 3027, 180 L.Ed.2d 852 (2011).

DISCUSSION

A. Motion to Dismiss the Indictment

Defendant first argues that the government's failure to disclose Deputy Thompson's statement—that he did not see a white substance thrown from the vehicle in which Defendant was riding—constitutes a Brady violation. We disagree. Defendant was given access to the police tapes and the police reports. Those pieces of evidence, including Deputy Thompson's police report, nowhere mentioned a “snowstorm” or objects thrown from Defendant's vehicle. It was, therefore, a reasonable inference from the materials disclosed already that Deputy Thompson had not seen the alleged “snowstorm.” Cf. United States v. Houston, 648 F.3d 806, 813–14 (9th Cir.2011) (holding that there was no “plain Brady error” for similar governmental conduct involving proof of a negative). Indeed, Defendant subpoenaed Deputy Thompson, likely for that very reason. We affirm the district court's denial of Defendant's motion to dismiss and, accordingly, affirm Defendant's conviction.

B. “ Suspicionless Search” Condition of Probation

Defendant challenges the probation condition that permits a suspicionless search:

The defendant shall submit his person, property, place of residence, vehicle and personal effects to search at any time of the day or night, with or without a warrant, with or without probable cause, and with or without reasonable suspicion, by a probation officer or any federal, state, or local law enforcement officer. Failure to submit to a search may be grounds for revocation. The defendant shall warn any residents that the premises may be subject to search.

Defendant argues that the foregoing condition violates the Fourth Amendment.

1. Ripeness

The government first argues that, because Defendant has not been, and may never be, subjected to a suspicionless search, his challenge to the probation condition is not ripe. According to the government, if Defendant is subjected to a suspicionless search and Defendant is harmed, then—but not until then—Defendant may challenge the condition and the resulting search. We disagree.

The government's argument finds support in some of our cases. For instance, in United States v. Abbouchi, 502 F.3d 850, 859 (9th Cir.2007), we held, with little analysis, that “it is premature to decide Abbouchi's challenge to the requirement that he answer truthfully any questions asked of him by the probation officer. Nothing prevents Abbouchi from raising a Fifth Amendment issue should it arise.” Similarly, in United States v. Streich, 560 F.3d 926 (9th Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 320, 175 L.Ed.2d 211 (2009), we held that a “claim is not ripe if it involves contingent future events that may not occur as anticipated, or indeed may not occur at all.” Id. at 931 (internal quotation marks omitted). Applying that standard, we held that the defendant's feared civil commitment because of the inclusion of certain information in the presentence report “strikes us as the classic example of a contingent future event that may not happen at all.” Id. at 932 (internal quotation marks omitted); see Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (declining to entertain a facial challenge to New York's “stop and frisk” statute because the “constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case”); Warshak v. United States, 532 F.3d 521, 528 (6th Cir.2008) (en banc) (holding that courts “generally review [Fourth Amendment] challenges in two discrete, post-enforcement settings: (1) a motion to suppress in a criminal case or (2) a damages claim under § 1983 or under Bivens against the officers who...