736 F.3d 805 (9th Cir. 2013), 11-10182, United States v. King

Docket Nº:11-10182.
Citation:736 F.3d 805
Opinion Judge:GRABER, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marcel Daron KING, Defendant-Appellant.
Attorney:Daniel P. Blank, Assistant Federal Public Defender, San Francisco, CA, for Defendant-Appellant. Suzanne B. Miles, Assistant United States Attorney, San Francisco, CA, for Plaintiff-Appellee.
Judge Panel:Before: SUSAN P. GRABER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges. Opinion by Judge GRABER; Dissent by Judge BERZON. BERZON, Circuit Judge, dissenting:
Case Date:March 08, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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736 F.3d 805 (9th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marcel Daron KING, Defendant-Appellant.

No. 11-10182.

United States Court of Appeals, Ninth Circuit.

March 8, 2013

Argued and Submitted Sept. 19, 2012.

Amended Aug. 27, 2013.

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Daniel P. Blank, Assistant Federal Public Defender, San Francisco, CA, for Defendant-Appellant.

Suzanne B. Miles, Assistant United States Attorney, San Francisco, CA, for Plaintiff-Appellee.

Before: SUSAN P. GRABER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

Opinion by Judge GRABER; Dissent by Judge BERZON.

ORDER

The opinion filed March 8, 2013, and published at 711 F.3d 986, is amended by the opinion filed concurrently with this order.

With these amendments, Judges Graber and Tallman have voted to deny Appellant's petition for rehearing en banc, and Judge Berzon has voted to grant it.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.

Appellant's petition for rehearing en banc is DENIED. No further petitions for rehearing or for rehearing en banc shall be entertained.

OPINION

GRABER, Circuit Judge:

Defendant Marcel Daron King appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The question that we must answer is whether the Fourth Amendment permits a suspicionless search 1 of a probationer's residence. We hold that such a search is permissible when, as here, a violent felon has accepted a suspicionless-search condition as part of a probation agreement. We therefore affirm.

Officers of the San Francisco Police Department suspected that Defendant was involved in a homicide.2 When they checked into his criminal history, they learned that he was on adult felony probation in the City and County of San Francisco for violation of California Penal Code section 273.5, which prohibits the willful infliction of corporal injury on a cohabitant. Defendant's probation agreement included the following term: " Defendant is subject to a warrantless search condition, as to defendant's person, property, premises and vehicle, any time of the day or night, with or without probable cause, by any peace, parole or probation officer." 3

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The officers searched Defendant's residence and found an unloaded shotgun under his bed. That shotgun was the subject of Defendant's indictment under 18 U.S.C. § 922(g)(1).

In the district court, Defendant filed a motion to suppress the shotgun, arguing that it was the fruit of an illegal search. The court denied the motion, holding that the officers had reasonable suspicion to conduct the search. After a bench trial with stipulated testimony, conducted only to preserve Defendant's right to appeal the denial of his motion to suppress, Defendant was convicted.

On appeal, a majority of this panel concluded that police lacked reasonable suspicion that Defendant was engaged in criminal activity. United States v. King, 672 F.3d 1133, 1139 (9th Cir.) (per curiam), vacated, 687 F.3d 1189 (9th Cir.2012) (en banc) (per curiam). Nevertheless the majority also held that the district court properly denied Defendant's motion to suppress because, under United States v. Baker, 658 F.3d 1050, 1055-56 (9th Cir.2011), suspicionless-search conditions for probationers do not violate the Fourth Amendment.

Baker, however, rested on the faulty premise that there is no difference, for Fourth Amendment purposes, between probationers and parolees. Id. at 1058-60 (Graber, J., concurring). That premise was at odds with the Supreme Court's statement in Samson v. California, 547 U.S. 843, 850, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), that " parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment."

The en banc court granted rehearing to consider the continuing validity, in light of Samson, of Baker and several related cases. United States v. King, 682 F.3d 779 (9th Cir.2012) (order). In a brief opinion, the court overruled Baker and the related cases, vacated our panel opinion, and remanded the case to us. United States v. King, 687 F.3d 1189 (9th Cir.2012) (en banc) (per curiam).

Now that Baker no longer controls, and because the panel majority has already held that police lacked reasonable suspicion that Defendant was involved in criminal activity, we must decide whether the search of Defendant's residence satisfied the Fourth Amendment even though police lacked reasonable suspicion. Thus, the question presented is whether a suspicionless search, conducted pursuant to a condition of Defendant's probation, violates the Fourth Amendment.

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In United States v. Knights, 534 U.S. 112, 114, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Supreme Court upheld a search that police had conducted pursuant to the terms of a defendant's probation, which authorized searches " with or without a search warrant, warrant of arrest or reasonable cause." The police had no warrant for the search of the defendant's apartment, but they did have reasonable suspicion that the defendant was involved in criminal activity. Id. at 114-15, 122 S.Ct. 587. The Court balanced the degree of intrusion on the defendant's expectation of privacy against the degree to which the government needed to conduct the search for the promotion of legitimate governmental interests. Id. at 118-19, 122 S.Ct. 587. The Court held that " the search ... was reasonable under our general Fourth Amendment approach of examining the totality of the circumstances, with the probation search condition being a salient circumstance." Id. at 118, 122 S.Ct. 587 (citation and internal quotation marks omitted). The Court did not decide the question that we confront here: " whether the probation condition so diminished, or completely eliminated, [the defendant's] reasonable expectation of privacy ... that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment." Id. at 120 n. 6, 122 S.Ct. 587.

In Samson, 547 U.S. at 846, 126 S.Ct. 2193, the Supreme Court considered whether a California law that authorizes searches of parolees " with or without a search warrant and with or without cause" violates the Constitution. The Court used the same balancing approach that it had used in Knights. Samson, 547 U.S. at 848-54, 126 S.Ct. 2193. In assessing the defendant's privacy interest, the Court wrote that " parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." Id. at 850, 126 S.Ct. 2193. Balancing the defendant's privacy interests against the government's interests, the Court " conclude[d] that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee." Id. at 857, 126 S.Ct. 2193.

In light of Knights and Samson, our task is to examine the totality of the circumstances to determine whether the suspicionless search of Defendant's residence was reasonable. Id. at 848, 126 S.Ct. 2193. To do so, we must " ‘ assess[ ], on the one hand, the degree to which [the search] intrudes upon [Defendant's] privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ " Id. (quoting Knights, 534 U.S. at 119, 122 S.Ct. 587).

Defendant's status as a probationer means that he begins with a lower expectation of privacy than is enjoyed by a citizen who is not subject to a criminal sanction. Knights, 534 U.S. at 119, 122 S.Ct. 587. " Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.... Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled." Id. (internal quotation marks omitted).

Additionally, " the probation search condition [is] a salient circumstance." Id. at 118, 122 S.Ct. 587. As in Knights, the judge who sentenced Defendant to probation " determined that it was necessary to condition the probation on [his] acceptance of the search provision." Id. at 119, 122 S.Ct. 587. " The probation order clearly expressed the search condition [,] ... [Defendant] was unambiguously informed of

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it," and he accepted it. Id. Both Samson and Knights " found that acceptance of a clear and unambiguous search condition ‘ significantly diminished [a defendant's] reasonable expectation of privacy.’ " Samson, 547 U.S. at 852, 126 S.Ct. 2193 (quoting Knights, 534 U.S. at 120, 122 S.Ct. 587).

Under Knights, not only did Defendant begin with a lower expectation of privacy than an average citizen has, but the probation search condition " significantly diminished" that lower expectation of privacy. We recognize that, under Samson, Defendant has a greater expectation of privacy than does a parolee. Id. at 850, 126 S.Ct. 2193. So we do not go so far as to hold, as the Samson Court did, that Defendant " did not have an expectation of privacy that society would recognize as legitimate." Id. at 852, 126 S.Ct. 2193. But we do conclude that Defendant's expectation of privacy was small, in light of the serious and intimate nature of his underlying conviction for the willful infliction of corporal injury on a cohabitant. We hold, therefore, that the search conducted here intruded on Defendant's legitimate expectation of privacy only slightly.

On the other side of the balance, the government has several important interests. First, the state has an interest in "...

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