U.S. v. King, No. 11-10182 (03-08-13) (Graber with Tallman; Dissent by Berzon)

Waive your rights away? Sure, especially if you are a probationer who, as terms of your probation, consent to a suspicionless search "any time of the day or night" by any law enforcement or probation officer. To the majority, the issue pretty much comes down to the waiver: although a probationer has more rights than a parolee, he has far less than an unconvicted, not yet arrested person (you who are reading this, it is only a matter of time....hear that buzz? Bet it is a drone passing by). The majority did do some balancing, as required by Samson and Knights (leading Supreme Court cases): lets see, "slight intrusion" on probationer's rights and "several important interests" that "are substantial" on the gov't's: apprehending violators, discovering criminal activity, and an interest in the probationer's successful completion of probation and reintegration into society (like a nighttime search without any suspicion will make the probationer feel more a member of society?) Dissenting, Berzon focuses on the language of the defendant's search condition, which states "with or without probable cause". This is different from Samson (without cause). Here, there has to be some modicum of cause. The difference between probable cause and no cause is fundamental. Berzon further makes the point that the distinction is one of federal law, and that state law, which cannot control. Berzon also finds that defendant's status as a probationer gives him more rights, or expectation of privacy, than a parolee. All in all, the dissent seems to have the better of the argument, even if she comes up one vote short.

Dan Blank, AFPD in the Northern District of California, fought the good fight on this. He would sleep easier if police had to at least have some suspicion before disturbing the slumber of probationers.

U.S. v. Cotterman, No. 09-10139 (03-08-13) (en banc) (McKeown with partial concurrence/dissents and a dissent)

Coming across a border with a computer? Have you been on some list, or picked out by an algorithm of crossings? be prepared to kiss your computer good-bye as it is whisked away, say almost 200 miles away, to be examined. here, the defendant crossed from Mexico. He had a prior sex offense, had crossed to Mexico often, had a collection of electronic equipment, and fell within "parameters" of an Angel Watch program. Problem was -- his computer was clean. Hmmmm, said the agents, lets take a deeper look, and the computer is sent 170 miles away for a forensic examination, where bad stuff was found. The 9th, en banc, reversed the suppression. It did recognized that the computer is different. It shifted its analysis from where the search occurred -- the border -- to the nature of the search, which could occur anywhere. The 9th found reasonable suspicion to peer into the computer because of a totality of factors. It is another test, one sensitive to computers, at the border. To search computers away, there has to be reasonable suspicion.. The Concurrences went along with the judgment, but rejected the new rule, in their eyes, of requiring reasonable suspicion for electronic devices at the border. This flouts a century of Supreme Court precedent and, warns them, is unworkable. The dissent (M. Smith) also finds the test unworkable, muddled, and giving too much discretion to agents. He believes that this opinion erodes the privacy rights of all US citizens, everywhere.

This is an important decision on border searches.