United States v. Marcel King

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10182
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-00455-
WHA-1
MARCEL DARON KING,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted
September 19, 2012—San Francisco, California
Filed March 8, 2013
Amended August 27, 2013
Before: Susan P. Graber, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Order;
Opinion by Judge Graber;
Dissent by Judge Berzon
2 UNITED STATES V. KING
SUMMARY*
Criminal Law
The panel amended a March 8, 2013, opinion affirming a
conviction, and the court denied a petition for rehearing en
banc, in a case involving whether the Fourth Amendment
permits a suspicionless search of a probationer’s residence.
In the amended opinion, the panel held that a
suspicionless search, conducted pursuant to a suspicionless-
search condition of a violent felon’s probation agreement,
does not violate the Fourth Amendment.
Dissenting, Judge Berzon wrote that the majority does not
give appropriate weight to the particular language in the
defendant’s search condition and to the Supreme Court’s
holdings that probationers have greater expectations of
privacy than parolees.
COUNSEL
Daniel P. Blank, Assistant Federal Public Defender, San
Francisco, California, for Defendant-Appellant.
Suzanne B. Miles, Assistant United States Attorney, San
Francisco, California, for Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. KING 3
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
search1 of a probationer’s residence. We hold that such a
1
We use the term “suspicionless search” to refer to a search for which
the police have less than reasonable suspicion. That is, the term covers
both a search as to which there is some (but not enough) suspicion and a
4 UNITED STATES V. KING
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
search that is, for example, conducted randomly with no individualized
suspicion.
2
We recite only the facts that relate to the present question. The original
panel opinion, United States v. King, 672 F.3d 1133 (9th Cir.) (per
curiam), vacated, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per curiam),
contains a full statement of the facts.
3
Under California law, Defendant’s agreement to the warrantless search
condition as part of his state-court probation was an agreement to be
subject to suspicionless searches. See People v. Bravo, 738 P.2d 336,
342–43 (Cal. 1987) (holding that “a search condition of probation that
permits a search without a warrant also permits a search without
‘reasonable cause’”); see also People v. Woods, 981 P.2d 1019, 1023–24
(Cal. 1999) (approving Bravo’s holding).
We disagree with the dissent’s assertion that Bravo represents only a
decision under federal constitutional standards. Dissent at 18–19, n.6.
The court there interpreted “the scope of appellant’s consent in agreeing
to the search condition of his probation” under California law. Bravo,
738 P.2d at 342. The meaning of such a California term of probation is a
UNITED STATES V. KING 5
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
question of state law. Cf. Parrish v. Wainright, 614 F.2d 1028, 1029 (5th
Cir. 1980) (per curiam) (holding that the meaning of a parole condition is
a matter of state law). Woods cited Bravo’s holding with approval and
looked to California law to examine the imposition on probationers of
search clauses. Woods, 981 P.2d at 1023–24, 1025 n.5. The Woods court
also observed, referring to California law, that “the search in any case
remains limited in scope to the terms articulated in the search clause.” Id.at 1027–28 (citing Bravo, 738 P.2d at 336). Only after the meaning and
scope of a search clause are determined, under state law, does the federal
Fourth Amendment analysis begin. Thus, although the dissent plausibly
parses King’s search clause, California law at the time this search
condition was imposed on King interpreted such clauses more broadly, to
waive all claims of privacy. We are not at liberty to do otherwise.
6 UNITED STATES V. KING
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
(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.
In United States v. Knights, 534 U.S. 112, 114 (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
UNITED STATES V. KING 7
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. 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. 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 (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.
In Samson, 547 U.S. at 846, 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. 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. 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.
8 UNITED STATES V. KING
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. 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).
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. “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. 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. “The probation order
clearly expressed the search condition[,] . . . [Defendant] was
unambiguously informed of 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 (quoting Knights, 534 U.S. at 120).
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
UNITED STATES V. KING 9
lower expectation of privacy. We recognize that, under
Samson, Defendant has a greater expectation of privacy than
does a parolee. Id. at 850. 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. 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
“apprehending violators of the criminal law, thereby
protecting potential victims” from probationers’ recidivism.
Knights, 534 U.S. at 121. “‘[T]he very assumption of the
institution of probation’ is that the probationer ‘is more likely
than the ordinary citizen to violate the law.’” Id. at 120(quoting Griffin v. Wisconsin, 483 U.S. 868, 880 (1987)). In
fact, “[t]he recidivism rate of probationers is significantly
higher than the general crime rate.” Id.Second, the state has an interest in discovering criminal
activity and preventing the destruction of evidence. The
Supreme Court has recognized that
probationers have even more of an incentive
to conceal their criminal activities and quickly
dispose of incriminating evidence than the
ordinary criminal because probationers are
aware that they may be subject to supervision
and face revocation of probation, and possible
incarceration, in proceedings in which the trial
10 UNITED STATES V. KING
rights of a jury and proof beyond a reasonable
doubt, among other things, do not apply.
Id. All the more so when, as here, the probationer agreed to
a search condition that permits warrantless, suspicionless
searches of the probationer’s “person, property, premises and
vehicle[] [at] any time of the day or night.”
Finally, the state has an interest in a probationer’s
successful completion of probation and in his or her
reintegration into society. Id. at 120–21. The Supreme Court
has observed that, by reducing recidivism, a state’s “ability to
conduct suspicionless searches of parolees . . . aids, rather
than hinders, the reintegration of parolees into productive
society.” Samson, 547 U.S. at 854. That statement is true of
probationers as well.
We conclude that the governmental interests at stake here
“are substantial.” Id. at 853. We further conclude that the
state has a significant need to promote those interests through
suspicionless searches of probationers. As the Supreme
Court has stated, the Fourth Amendment does not “require the
State to shut its eyes” to its legitimate interests. Knights,
534 U.S. at 121. Nor does it “render the States powerless to
address these concerns effectively.” Samson, 547 U.S. at 854.
Balancing the slight intrusion on Defendant’s expectation
of privacy against the government’s significant need to
promote its legitimate governmental interests, we hold that
the search conducted here was reasonable. We need not
decide whether the Fourth Amendment permits suspicionless
searches of probationers who have not accepted a
suspicionless-search condition, or of lower level offenders
who have accepted a suspicionless-search condition, because
UNITED STATES V. KING 11
those cases are not before us. Nor do we condone searches
that are conducted for illegitimate reasons, such as
harassment. We hold only that a suspicionless search,
conducted pursuant to a suspicionless-search condition of a
violent felon’s probation agreement, does not violate the
Fourth Amendment.
AFFIRMED.
BERZON, Circuit Judge, dissenting:
I continue to agree with Judge Graber that San Francisco
Police Department officers lacked reasonable suspicion to
search Marcel King at his residence. See Op. at 5; United
States v. King, 672 F.3d 1133, 1139 (9th Cir. 2012) (per
curiam), vacated, 687 F.3d 1189 (9th Cir. 2012) (en banc)
(per curiam). I part ways with the present majority regarding
whether police could search King’s home without any
individualized suspicion. The majority does not give
appropriate weight to two factors that are for me decisive —
the particular language in King’s search condition and the
Supreme Court’s holdings that probationers have greater
expectations of privacy than parolees. I therefore respectfully
dissent.
I
Like the majority, I “examine the totality of the
circumstances to determine whether the suspicionless search
of [King’s] residence was reasonable.” Op. at 8. I begin by
analyzing King’s privacy interests under the Fourth
Amendment, and then turn to the weighing of those interests
12 UNITED STATES V. KING
against competing, governmental concerns. See Samson v.
California, 547 U.S. 843, 848 (2006); United States v.
Knights, 534 U.S. 112, 118–19 (2001).
A
In assessing “‘the degree to which [the search] intrude[d]
upon [King’s] privacy,’” Samson, 547 U.S. at 848 (quoting
Knights, 534 U.S. at 119), a critical fact that distinguishes this
case from Knights and Samson is the text of the probation
search condition applicable to King. The condition in
Knights authorized searches “with or without a search
warrant, warrant of arrest or reasonable cause.” Knights,
534 U.S. at 114. The parole condition in Samson, in turn,
provided for searches “‘without a search warrant and with or
without cause.’” Samson, 547 U.S. at 846 (quoting Cal. Penal
Code § 3067). In contrast, King’s probation search condition
was as follows:
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.
Under the terms of his search condition, then, King was
subject to searches without a warrant and “without probable
cause.” But King’s search condition did not “clear[ly] and
unambiguous[ly]” permit searches without any modicum of
individualized suspicion. See Samson, 547 U.S. at 852. To
the contrary, by specifying that the search could be “without
probable cause,” the search condition, read in the context of
well-developed Fourth Amendment concepts, indicated that
UNITED STATES V. KING 13
some cause was required, just not the relatively high standard
of suspicion portended by the term “probable cause.”
I note at the outset that the language of King’s search
condition differs from that of every parole or probation
agreement that we or the Supreme Court have analyzed in
determining the reasonableness of a warrantless search. I
have found no Ninth Circuit or Supreme Court case — and
neither the majority nor the government cites any — in which
a parole or probation agreement provided for searches
“without probable cause” but lacked a provision expressly
authorizing searches without reasonable suspicion. The
relevant precedents governing the validity of warrantless
searches of probationers or parolees either involved (1)
probation conditions that stated some standard of suspicion
other than that used in King’s agreement;1 or (2) the
1
See Knights, 534 U.S. at 114; United States v. Baker, 658 F.3d 1050,
1054 (9th Cir. 2011) (“with or without a warrant, with or without probable
cause, and with or without reasonable suspicion”), overruled in part,
United States v. King, 687 F.3d 1189 (9th Cir. 2012) (en banc) (per
curiam); Sanchez v. Canales, 574 F.3d 1169, 1171 (9th Cir. 2009) (“with
or without a search warrant, warrant of arrest or reasonable cause”),
overruled in part, King, 687 F.3d at 1189; Moreno v. Baca, 431 F.3d 633,
637 (9th Cir. 2005) (“without a warrant”), overruled in part, King,
687 F.3d at 1189.
I note that Sanchez misstated California law when it reported that
“every probationer in California is required to ‘submit his . . . person,
property, place of residence, vehicle, [and] personal effects, to search at
any time, with or without a search warrant, warrant of arrest or reasonable
cause by any probation officer or officer of the law.’” 574 F.3d at 1171(emphasis added). Sanchez did not specify the source for its quoted
statement. As I understand California law, and as the parties in this case
have briefed it, all California parolees are subject to a search condition
“with or without a search warrant or with or without cause,” Cal. Penal
Code § 3067(b)(3), but probationers are not automatically subject to any
14 UNITED STATES V. KING
condition mandated by California Penal Code § 3067 for all
parolees.2
As is apparent from the varied wordings of the search
conditions in the aforementioned probation cases, California
judges do not uniformly impose the same search conditions
on all probationers, nor do they necessarily impose on
probationers the terms of the mandatory parole condition.
See supra nn.1–2. Unlike the majority, I assume that King’s
sentencing judge chose the particular words in King’s search
condition as the judge “determined . . . fitting and proper,”
see Cal. Penal Code § 1203.1(j), and I would give effect to
the particular language used.
The difference between the probable cause standard3 and
the lesser reasonable suspicion standard4 is fundamental to
search condition, though a court “may impose . . . reasonable conditions[]
as it may determine are fitting and proper,” id. § 1203.1(j).
2
See Samson, 547 U.S. at 846 (quoting Cal. Penal Code § 3067)
(“‘without a search warrant and with or without cause’”); United States v.
Lopez, 474 F.3d 1208, 1209 (9th Cir. 2007) (same), overruled in part,
King, 687 F.3d at 1189; Motley v. Parks, 432 F.3d 1072, 1075 n.2 (9th
Cir. 2005) (en banc) (same), overruled in part, King, 687 F.3d at 1189.
3
“Probable cause exists where the facts and circumstances within [an
officer’s] knowledge and of which [he] had reasonably trustworthy
information [are] sufficient in themselves to warrant a man of reasonable
caution in the belief that an offense has been or is being committed.”
Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009)
(alterations in original) (internal quotation marks omitted).
4
“Reasonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be established
with information that is different in quantity or content than that required
to establish probable cause, but also in the sense that reasonable suspicion
UNITED STATES V. KING 15
Fourth Amendment law.5 Although neither standard is
“finely-tuned,” see Ornelas v. United States, 517 U.S. 690,
696 (1996) (internal quotation marks omitted), the reasonable
suspicion standard requires “at least a minimal level of
objective justification,” Illinois v. Wardlow, 528 U.S. 119,
123 (2000). So the sentencing judge’s decision to limit the
probation search condition to searches conducted without
can arise from information that is less reliable than that required to show
probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990).
The Supreme Court recently described the quantum of suspicion that
an officer must have before conducting a warrantless search under each
standard: For searches that require probable cause, the officer must know
that the search “raise[s] a ‘fair probability’ or a ‘substantial chance’ of
discovering evidence of criminal activity.” Safford, 557 U.S. at 371(internal citations omitted). For searches that require reasonable
suspicion, there need only be “a moderate chance of finding evidence of
wrongdoing.” Id.California cases sometimes use the terms “reasonable suspicion” and
“reasonable cause” interchangeably. See, e.g., People v. Letner, 50 Cal.
4th 99, 146–47 (2010); People v. Souza, 9 Cal. 4th 224, 232 (1994) (citing
In re Tony C, 21 Cal. 3d 888 (1978)). The Supreme Court has
occasionally done so as well. See Adams v. Williams, 407 U.S. 143, 147
(1972) (describing the requisite level of suspicion required for a stop-and-
frisk under Terry v. Ohio, 392 U.S. 1 (1968), as “reasonable cause”).
5
See, e.g., Safford, 557 U.S. at 377 (requiring reasonable suspicion, but
not probable cause, that a student has concealed contraband in her
underwear before school officials may conduct a strip search); Maryland
v. Buie, 494 U.S. 325, 334–35 (1990) (permitting searches incident to
arrests upon reasonable suspicion that danger to arresting officers exists);
Terry, 392 U.S. 1 (authorizing protective stop-and-frisks without probable
cause but with reasonable suspicion); United States v. Becerra-Garcia,
397 F.3d 1167, 1174 (9th Cir. 2005) (noting that under the Fourth
Amendment, “investigative traffic stops” require “only reasonable
suspicion”).
16 UNITED STATES V. KING
probable cause, while not stating that searches could be
conducted in the absence of reasonable suspicion, has import
in the Fourth Amendment lexicon.
Moreover, as I have noted, California’s mandatory parole
condition includes the term “with or without cause,” see
supra pp. 13–14 & n.2; that provision covers the entire
universe of searches, including those conducted without any
cause. King’s search condition was conspicuously narrower,
authorizing searches only “with or without probable cause.”
Had the judge who placed King on probation meant to permit
a search without any suspicion or cause, he could have used
the mandatory parole condition language. But he did not,
indicating an intent to deviate from the “no cause” condition
signified by that locution.
The majority cites two California Supreme Court cases
for the proposition that as a matter of California law, King’s
particular search condition was an agreement “to be subject
to suspicionless searches.” Op. at 4 n.3 (citing People v.
Woods, 21 Cal. 4th 668, 674–75 (1999); People v. Bravo,
43 Cal. 3d 600, 609–10 (1987)). After Knights and Samson
— both decided after Woods and Bravo — these California
cases cannot control here with regard to the impact of the
condition’s wording on King’s reasonable expectation of
privacy.
Federal law, not California law, governs the ultimate
question before us, which is whether the San Francisco
police’s search of King’s residence was permissible under the
Fourth Amendment. See, e.g., United States v. Davis,
932 F.2d 752, 758 (9th Cir. 1991) (noting that “the validity of
a search conducted by state law enforcement officers is
ultimately a question of federal law”).
UNITED STATES V. KING 17
Knights and Samson make clear that the California
Supreme Court’s analysis in Woods and Bravo is inapposite,
and so not binding, here. Woods and Bravo upheld
warrantless, suspicionless searches of probationers based on
two interrelated factors: that 1) the probationers had “validly
consent[ed] in advance to warrantless searches in exchange
for the opportunity to avoid service of a state prison term,”
Woods, 21 Cal. 4th at 674 (citing Bravo, 43 Cal. 3d at 608,
and Schenckloth v. Bustamonte, 412 U.S. 218, 219 (1973));
and 2) that courts should not interpret “minor differences in
the wording of search conditions in other probation orders”
as having any significance in the scope of a probationer’s
consent to searches, Bravo, 43 Cal. 3d at 606–07.
Knights and Samson abjure reliance on either of the
California Supreme Court’s rationales. Each of the U.S.
Supreme Court precedents expressly declined to adopt the
central holding of Bravo, reiterated in Woods, that
“‘acceptance of the search condition constituted consent in
the Schneckloth sense of a complete waiver of . . . Fourth
Amendment rights.’” Samson, 547 U.S. at 852 n.3 (quoting
Knights, 534 U.S. at 118) (internal citation omitted). Instead,
Knights and Samson each followed a Fourth Amendment
balancing approach, under which the search condition is
pertinent not as evidencing consent but as partially indicative
of the probationer or parolee’s reasonable expectation of
privacy. And, in implementing that approach, neither
followed Bravo’s rough, generic interpretation of the search
conditions, even though Samson and Knights were both cases
involving search conditions in California. Instead of relying
on Bravo’s generic interpretation of all warrantless search
conditions — as the majority here does — the U.S. Supreme
Court proceeded to analyze the “plain terms” of the search
conditions. See id. at 852.
18 UNITED STATES V. KING
In doing so, Samson repeatedly emphasized the
significance of the fact that the search conditions in both
Knights and Samson were “clear and unambiguous,”
explaining that in Knights, in determining the reasonableness
of the search conducted pursuant to Knights’s probation
condition, “[w]e . . . considered the facts that Knights’
probation order clearly set out the probation search condition,
and that Knights was clearly informed of the condition. . . .
[W]e found that acceptance of a clear and unambiguous
search condition ‘significantly diminished Knights’
reasonable expectation of privacy.’” Samson, 547 U.S. at 849,
852 (quoting Knights, 534 U.S. at 120) (emphasis added).
With regard to the search condition at issue in Samson, the
Court noted that the condition “was ‘clearly expressed’ to
[Samson].” Id. at 852 (quoting Knights, 534 U.S. at 119)
(emphasis added). Samson further explained that the “plain
terms of the . . . search condition” were a central factor in
evaluating the searched party’s reasonable expectation of
privacy. Id. (emphasis added).
Over and over, then, Samson and Knights stressed the
importance of the “plain,” “clear[],” and “unambiguous,”
terms of the search conditions in those cases. We are of
course bound by the “mode of analysis” of the United States
Supreme Court in deciding Fourth Amendment questions, see
United States v. Van Alstyne, 584 F.3d 803, 813 (9th Cir.
2009), not that of the California Supreme Court.6 Applying
6
The California Supreme Court decided Woods and Bravo under federal
constitutional standards, not under some separate state law ground under
which we might be bound or that might feed into our interpretation of
King’s search condition under the totality of the circumstances analysis.
Compare Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 427 (9th Cir.
2011) (noting that “[w]hen interpreting state law, federal courts are bound
by decisions of the state’s highest court”) (internal quotation marks
UNITED STATES V. KING 19
the principles set forth in Knights and Samson, I would
conclude, for the reasons explained above, see supra pp.
12–16, that King’s search condition did not plainly, clearly,
and unambiguously provide notice that he was subject to
searches without even reasonable suspicion. Because King
was not as a condition of probation subject to searches
conducted without that quantum of suspicion, the search
condition did not diminish King’s privacy interests in any
sense relevant to the suspicionless search at issue in this case.
B
The next relevant consideration in assessing King’s
privacy interests is King’s status as a probationer. See
Samson, 547 U.S. at 850; Knights, 534 U.S. at 119.
While the Supreme Court has held that parolees may be
subject to suspicionless searches, Samson, 547 U.S. at 857,
the Court has never held that a suspicionless search of a
probationer would pass Fourth Amendment muster, see
Knights, 534 U.S. at 120 n.6. The Court has instead
emphasized that probationers have greater Fourth
Amendment interests than parolees. See Samson, 547 U.S. at
850. Samson, in turn, cited approvingly to Judge Kleinfeld’s
omitted). Under the California Constitution, California courts may only
grant a suppression motion when “exclusion is mandated by the federal
Constitution.” People v. Robinson, 47 Cal. 4th 1104, 1119 (2010) (citing
Cal. Const. art. 1 § 28(f)(2)). Woods and Bravo, in turn, upheld searches
of probationers under the Fourth Amendment, not under some separate
state law standard. See Woods, 21 Cal. 4th at 674 (citing Cal. Const. art.
1 § 28); see also Bravo, 43 Cal. 3d at 603 n.3 (noting that the search in
Bravo occurred before the relevant California constitutional provision was
enacted, but that the court’s analysis would be identical whether under the
California Constitution or the federal constitution).
20 UNITED STATES V. KING
concurring opinion in United States v. Crawford, 372 F.3d
1048 (9th Cir. 2004) (en banc), in which Judge Kleinfeld
wrote separately “to clarify the distinction between parolees
and probationers,” “who are near opposite ends of the
punishment scale.” Id. at 1076–77 (Kleinfeld, J., concurring);
see Samson, 547 U.S. at 855. And our court recently deemed
the distinction between parolees and probationers so
important that we went en banc to overrule our case law that
conflicted with Samson insofar as it held that “‘there is no
constitutional difference between probation and parole for
purposes of the fourth amendment,’” King, 687 F.3d at 1189
(quoting Motley, 432 F.3d at 1083 n.9)), and had “overlooked
the important distinction between parolees and probationers,”
see United States v. Baker, 658 F.3d 1050, 1059 (9th Cir.
2011) (Graber, J., concurring).
The constitutionally significant difference between
probationers’ and parolees’ reasonable expectations of
privacy stems from the fundamental difference between the
circumstances under which persons are sentenced to the two
forms of state supervision. Often, “[p]arolees are persons
who have been sentenced to prison for felonies and released
before the end of their prison terms.” Crawford, 372 F.3d at
1077 (Kleinfeld, J., concurring). But see Cal. Penal Code
§ 3000 (requiring parole for persons released from prison
upon completion of their prison terms). In California, every
person released from state prison is placed on parole
“irrespective of whether the inmate is capable of integrating
himself back into productive society.” Samson, 547 U.S. at854 (citing Cal. Penal Code §§ 2931, 2933, 3000 (West
2000)). Probationers, in contrast, may have been convicted
of an infraction, misdemeanor, or felony. Crawford, 372 F.3d
at 1077 (Kleinfeld, J., concurring); see Cal. Penal Code
§ 1203. And in California, even if a person is convicted of a
UNITED STATES V. KING 21
felony, as King was, he can only be sentenced to probation if
the sentencing judge has determined, based on the facts and
circumstances of the offense and the history and
characteristics of the defendant, “that there are circumstances
in mitigation of the punishment prescribed by law or that the
ends of justice would be served by granting probation to the
person.” Cal. Penal Code § 1203(b)(3). As Judge Kleinfeld
aptly put the point: “Unlike parolees, who were sent to prison
for substantial terms, probationers attain that status from a
judicial determination that their conduct and records do not
suggest so much harmfulness or danger that substantial
imprisonment is justified.” Crawford, 372 F.3d at 1077(Kleinfeld, J., concurring).
In light of the Supreme Court’s and our case law
distinguishing between probationers’ and parolees’
reasonable expectations of privacy, I cannot accept the
majority’s conclusion that King’s privacy interest was so
“small” as to permit entirely suspicionless searches. See Op.
at 9. I recognize that King’s status as a probationer
diminished his expectation of privacy. See Knights, 534 U.S.
at 120. But I cannot go along with discounting his privacy
interests to the minimal level the majority posits, especially
in his residence, where Fourth Amendment rights are
particularly “sacrosanct.” See United States v. Duenas,
691 F.3d 1070, 1080 (9th Cir. 2012) (citing United States v.
Jones, 132 S. Ct. 945, 951 (2012)).
* * *
The majority holds that the San Francisco police’s
suspicionless search of King’s residence, pursuant to a
probation agreement that did not clearly permit searches with
less than reasonable suspicion, “intruded on [King’s]
22 UNITED STATES V. KING
legitimate expectation of privacy only slightly.” Op. at 9. I
would give greater weight than the majority to the Supreme
Court’s admonition that the “permissible degree” of
“impingement upon [probationers’] privacy” “is not
unlimited.” See Griffin v. Wisconsin, 483 U.S. 868, 875
(1987). Under the circumstances of this case — including the
limited search condition — King had a moderate privacy
interest, albeit one somewhat diminished by his status as a
probationer.
II
I agree with the majority that under the Supreme Court’s
analysis in Samson and Knights, the government has
legitimate interests in supervising probationers, see Samson,
547 U.S. at 853; Knights, 534 U.S. at 120, interests which the
Court has accorded significant weight in authorizing
warrantless searches of probationers and parolees. I
nonetheless have two disagreements with the majority’s
analysis of the government’s interests here.7
First, the government’s interest in “‘apprehending
violators of the criminal law, thereby protecting potential
victims’ from probationers’ recidivism,” Op. at 9 (quoting
Knights, 534 U.S. at 121), is not as compelling with regard to
probationers as with regard to parolees. Knights cited a 43%
recidivism rate for felons on probation as a factor in
authorizing warrantless searches of probationers based on
7
For the reasons explained in Part I.A, supra, I disagree with the
majority’s assertion that the government’s general “interest in discovering
criminal activity and preventing the destruction of evidence” is heightened
by King’s “agree[ment]” to this particular search condition. See Op. at
9–10.
UNITED STATES V. KING 23
reasonable suspicion of criminal activity. 534 U.S. at 120(citation omitted). Samson cited a 68–70% recidivism rate
for parolees as a factor in permitting warrantless searches of
parolees without even reasonable suspicion. 547 U.S. at853–54 (citation omitted). Although both recidivism rates are
considerable, the rate for probationers is substantially lower.
As one of several factors to assess under the totality of the
circumstances approach, I would conclude that the state’s
interest in crime prevention is somewhat weaker here than in
Samson.
Second, the mere fact that the Supreme Court has
described the government’s interests in preventing crime
among probationers and parolees as “substantial,” and has
articulated several justifications for why this is so, see id. at
853–55; Knights, 534 U.S. at 120–21, cannot alone allow
suspicionless searches. The government always has a
“general interest in crime control.” City of Indianapolis v.
Edmond, 531 U.S. 32, 42 (2000). Fourth Amendment
protections exist precisely to prevent “intrusions” on the
fundamental right of privacy “from becoming a routine part
of American life,” in the face of the substantial interest in
preventing crime and apprehending criminals. See id. So the
three-fold government interests the majority articulates —
reducing recidivism, discovering criminal activity, and
promoting probationers’ reintegration, Op. at 9–10 — cannot
by themselves bear the weight the majority places on them.
The “totality of circumstances” analysis is not an arithmetic
problem. Cf. Noble v. United States, 231 F.3d 352, 359 (7th
Cir. 2000); Piamba Cortes v. Am. Airlines, Inc., 177 F.3d
1272, 1298–99 (11th Cir. 1999).
24 UNITED STATES V. KING
III
Considering both the particular terms of King’s search
condition, and his probationer (and not parolee) status, I
would hold that King had a somewhat greater expectation of
privacy than the parolee in Samson. And King’s probationer
status also makes the government’s interests at least slightly
weaker here than in Samson. Weighing the “balance of these
considerations,” see Knights, 534 U.S. at 121, I would hold
that King was subject to warrantless searches only upon
reasonable suspicion of criminal conduct.
CONCLUSION
Warrantless searches conducted with only reasonable
suspicion of criminal activity represent a considerable
departure from the generally applicable requirement for a
search of a person’s residence. The Supreme Court has
upheld such searches for probationers, see Knights, 534 U.S.
112, but the majority’s decision goes one step further,
permitting such searches without any quantum of suspicion,
as long as the probationer has assented to a warrantless search
condition, no matter how ambiguously worded. I would not
expand the “‘closely guarded . . . category of constitutionally
permissible suspicionless searches’” further than the Supreme
Court already has. See Samson, 547 U.S. at 860 (Stevens, J.,
dissenting) (quoting Chandler v. Miller, 520 U.S. 305, 309
(1997)).
I therefore dissent from the majority’s decision upholding
the district court’s order denying King’s motion to suppress.
I would instead remand to the district court for further
UNITED STATES V. KING 25
proceedings, including resolution of the factual dispute
whether the police obtained valid consent for the search from
King’s mother. See United States v. Prieto-Villa, 910 F.2d
601, 602 (9th Cir. 1990).