Case o' The Week: Baker Effort Undercooked, Needs Trip to En Banc Oven -- Fourth Amendment and Probation Conditions

Judge Susan Graber (right) is often a tough draw for a criminal defendant on appeal. See blog collections involving Judge Graber here.

She is also no radical when it comes to the Fourth Amendment. See generally, United States v. Crapser, 472 F.3d 1141 (9th Cir. 2007) (Graber, J., affirming warrantless hotel search over Judge Reinhardt's vigorous dissent).

So, when Judge Graber worries that "suspicionless" search conditions for probationers have finally crossed the Fourth Amendment line, and warns that the Ninth should go en banc to review its authority in light of Supreme Court jurisprudence, her call to action should sound alarm bells. Baker, the subject of this "Case o' The Week" post, should go en banc. United States v. Baker, 2011 WL 4359923 (9th Cir. Sept. 20, 2011), decision available here.

Players: Hard-fought case by Bay Area private counsel Jay Nelson and Ethan Balogh. Decision and concurrence by Judge Graber.

Facts: Baker was a passenger in a car during a high-speed chase. Id. at *1. When ultimately stopped, cops found 10 grams of meth in the car. Id. Baker was nonetheless charged with over fifty grams of meth, a mand-min felony. Id. At trial, cops testified that they saw a “snowstorm” of meth thrown out of the car as it fled. Id.

In a great trial victory, Mssrs. Nelson and Balogh beat the felonies and Baker was convicted of misdemeanor possession. Id. Over defense objection, ND Cal DJ Breyer imposed a “suspicionless search” condition on Baker’s term of probation. Id. at *2.

Issue(s): “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.

Id. at *3.

“The government argues that it has a strong interest in protecting the public and that, as a probationer, Defendant has a reduced expectation of privacy and an increased risk of recidivism. Accordingly, the government argues, a suspicionless search condition does not violate the Fourth Amendment. Defendant counters that, although he has a reduced expectation of privacy, it is not reduced so much that a warrantless search, on the basis of no suspicion whatsoever, is reasonable. Defendant points out that he was convicted of a relatively minor misdemeanor drug offense and that the government's interest in protecting the public is therefore less than, for instance, the government’s interest in supervising a convicted violent felon.” Id. at *4.

Held: “We are bound by precedent to agree with the government. In Samson, . . . the Supreme Court held that a suspicionless search of a parolee does not violate the Fourth Amendment. Since that case was decided, we have applied our rule that there is no constitutional difference between probation and parole for purposes of the fourth amendment. . . . Because a suspicionless search of a parolee does not violate the Fourth Amendment, . . . and because our precedent dictates that there is no constitutional difference between probation and parole for purposes of the fourth amendment, we must conclude that a suspicionless search of a probationer does not violate the Fourth Amendment.” Id. at *4 (quotations and internal citations omitted).

Of Note: In a persuasive concurrence, Judge Graber urges that this case should go en banc. As she correctly explains, a parolee is not identical to a probationer for the Fourth Amendment analysis.“The Supreme Court has not addressed the question left open in Knights and raised here: whether a suspicionless search condition imposed on a probationer violates the Fourth Amendment.” Id. at *8 (Graber, J., concurring).

As noted above, Judge Graber is not traditionally viewed as a defense ally and her en banc suggestion should carry particular weight. See id. at *9 (“[T]his court’s continued reliance on the proposition that there is no difference between parolees and probationers in this context directly contravenes the Supreme Court’s clear statements in Samson and, critically, forecloses our ability to resolve that significant question on its merits. We should convene en banc so that we can correct our mistaken continued application of the Motley rule.”)

How to Use: Preserve the objection conditions of probation that impose suspicionless searches: an en banc petition is certain – review, likely.

For Further Reading: For the first time in a long time, the Ninth has lost an active judge: the Honorable Pamela Ann Rymer (left) passed away last week. See article here.

Judge Rymer was appointed to the Ninth by President H.W. Bush in ‘89, after being bandied against Justice Kennedy for the Supremes. For a retrospective of Judge Rymer’s criminal law decisions, see collection here.

While the defense often disagreed with Judge Rymer's positions, she was an engaged jurist and an elegant legal writer. As we observed in our '08 summary of the Zavala/Carty en banc decision, "Judge Rymer’s concise, bullet-point distillations of the Supreme Court’s sentencing morass are clear and well-written; they will be the Ninth’s hornbook for post-Booker sentencing practice. . . . If a Ninth Circuit defense counsel reads only one thing on federal sentencing, it should be Carty." See blog here.


Image of the Honorable Susan Graber from http://www.id.uscourts.gov/distconf08/photos/slides/Judge%20Susan%20Graber%20.JPG Image of the Honorable Pamela Rymer from http://nh.tributes.com/show/Pamela-Rymer-92390242


Steven Kalar, Senior Litigator N.D. Cal. FPD Website at www.ndcalfpd.org

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U.S. v. Ressam, No. 09-30000 (3-12-12) (en banc).

Sitting en banc, the 9th considers the 22-year sentence imposed upon the so-called "Millennium Bomber" and holds that it has "a definite and firm conviction" that the district court committed "clear error" in its sentence, and thus the sentence was "substantively unreasonable." The 9th engaged in a detailed analysis of the twists and turns of this case, with plea offers, counter-offers, offers to cooperate, cooperation, withdrawal from cooperation, self-representation, and various assessments of the value of cooperation he did provide. The 9th faulted the district court for its comparisons with other terrorism cases, and for its scant attention to the guidelines. It did value the familiarity of the court with this case, now some 12+ years old, and so remanded back to the court for a resentencing. Concurring, Reinhardt, with Wardlaw, caution that this is a unique case, and that it is difficult to develop general principles concerning "substantive unreasonableness." The highly contextual nature of substantive review of sentences, and the circumstances of this case, make it atypical. The concurrence believes the sentence must be vacated, but is cautious as to what markers are laid down for the future. Dissenting, Schroeder, joined by Paez, Berzon and Murguia, would defer to the district court and affirm the sentence as given. The dissent argues that the majority commits Gall error, and vacates the sentence because it disagrees with it.

Kudos to Tom Hillier, FPD of the W.Dist of Wa (Seattle) for his continued spirited representation. Back for resentencing.

U.S. v. King, No. 11-10182 (3-13-12) (Per curiam with Graber, Berzon and Tallman, and concurrences by Graber and Tallman).

The 9th affirms a search of a home based upon the defendant's probation condition specifically allowing warrantless searches with or without probable cause. Here, the defendant was supposedly linked to a shooting by various unreliable informants and/or witnesses. Reasonable suspicion was lacking. However, Baker, 658 F.3d 1050 (9th Cir. 2011) permitted the search of his room (via a questioning, overheard conversation with others, a fight among kids over a jacket, a Google search of an album cover, and a stop at one address that led to another) which yielded a shotgun possessed by this prohibited possessor. Graber, concurring, believes that Baker should be reconsidered in light of Supreme Court developments. Searches without even reasonable suspicion via a probation condition troubles her. Tallman, concurring, would affirm because to him reasonable suspicion was established by the various links between the shooting, witnesses, and connections to the defendant.

Case o' The Week: Short King Packs Punch - En Banc King and Probation Searches

King Pepin the Short, King of the Franks

Pepin proved it to the Franks in the Eighth Century: a King can be both short, and powerful.

The Ninth proved the same last week. United States v. King, 2012 WL 3104611 (9th Cir. Aug. 1, 2012) (en banc), decision available here.

Players: Big win for ND Cal AFPD Dan Blank and R&W Attorney Steven Koeninger. Per curiam, en banc decision.

Facts: In Samson, the Supreme Court distinguished a parolee from a probationer in the context of the Fourth Amendment. 547 U.S.843 (2006). The Supremes explained that parolees have a lower expectation of privacy than probationers. 

The Ninth, however, has decades of law that equates the two – and that permits suspicionless searches of probationers. Id. 

In the present case, King was a probationer. A gun was found when his bedroom was searched without “reasonable suspicion.” See United States v. King, 672 F.3d 1133, 1139 (9th Cir. 2012) (three judge panel decision). The district court upheld the search. 

King then argued in the Ninth that after Samson, reasonable suspicion was required for probation searches. The three-judge panel upheld the search under Ninth authority that permits probation searches without any suspicion -- though Judges Graber and Berzon urged en banc review in a concurring decision. Id. at 1139, see also blog here (discussing Judge Graber's earlier concurrence in Baker). 

Issue(s): Do probationers and parolees have identical expectations of privacy (i.e., none) after Samson?

Held: “We overrule Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005), the precedent on which it relies, Moreno v. Baca, 400 F.3d 1152 (9th Cir. 2005), and United States v. Harper, 928 F.2d 894 (9th Cir. 1991), and later cases that rely on it, including United States v. Baker, 658 F.3d 1050 (9th Cir. 2011), Sanchez v. Canales, 574 F.3d 1169 (9th Cir. 2009), and United States v. Lopez, 474 F.3d 1208 (9th Cir. 2007), to the extent they hold that ‘there is no constitutional difference between probation and parole for purposes of the fourth amendment.’ Motley, 432 F.3d at 1083 n.9 (internal quotation marks omitted). These cases conflict with the Supreme Court's holding that ‘parolees have fewer expectations of privacy than probationers.’ Samson v. California, 547 U.S. 843, 850 (2006). United States v. King, 672 F.3d 1133 (9th Cir. 2012), is vacated, and the case is referred to the original panel for disposition consistent with this opinion.”

Of Note: That “holding” quote above? That’s the entire en banc opinion. But very good things come in small packages. In one fell swoop, the Court wipes out two decades of lousy precedent that effectively stripped probationers of all Fourth Amendment rights. 

What will be the new search standard for probationers? That important question rests in the hands of Judges Graber, and Berzon and Tallman as the issue returns to the original three-judge panel. Stay tuned – their King decision will be a lead Fourth Amendment case in the Ninth.

How to Use: If your case involves a probation search, the cops probably got it wrong. Law enforcement officers have been actively advised that “reasonable suspicion” is not required for a probation search. See e.g., article for law enforcement here. 

That is very likely untrue. Until the dust settles, the equation is simple: probation search = King + suppression motion.

                                               

For Further Reading: In Northern California, cops have been pairing with probation officers to conduct suspicionless searches of probationers – because (and we quote) they “all share the same pool of dirtbags!!” For some refreshingly candid law enforcement discussions on their use (and abuse) of probation searches, visit their eye-opening forum here . (“My S.O. brothers lick their chops when they find out a subject is on felony probation with full search and seizure conditions. Warrantless entry with no need for PC is sooooo nice!!”) 

Image of King Pepin the Short, King of the Franks, from http://www.christian-history.org/faq-should-christians-tithe.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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1. US v. Alvarez, No 21-50088 (2-16-2023)(R. Nelson w/M. Smith & Drain). The 9th affirms a 1326 conviction. The defendant’s prior Ohio assault conviction under Ohio Rev Stat 2903.13(a) is a COV. The 9th follows the 6th Circuit.

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/02/16/21-50088.pdf

2. US v. Farias-Contreras, No. 21-30055 (2-15-23)(Wardlaw w/Gould; dissent by Bennett). The prosecutor agreed to recommend a low-end GL sentence. However, the prosecutor undermines the recommendation with an inflammatory sentencing memorandum decrying the harm and pain drug trafficking visited on the community by “pumping poison” to the streets. The majority, under plain error, concludes the inflammatory statements violated the plea agreement.  Bennett dissents. He argues the prosecutor complied by stating the recommendation, and as expressly permitted by the plea, could present other facts. Bennett concludes by calling for en banc or SCOTUS review.

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/02/15/21-30055.pdf

3. US v. Michell, No. 19-10059 (2-15-23)(Wardlaw w/Garner; partial concurrence and dissent by Baker). This is a Rehaif issue. Under plain error, the 9th affirmed convictions for unlawful firearm possession. The error was plain – knowledge of a felony is an element – but here the 9th could take judicial notice outside the record of other convictions, where the knowledge of felonies was clear. No prejudice existed. Baker dissents. He argues the defendant had a fighting chance of arguing to the jury he really didn’t know.

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/02/15/19-10059.pdf

U.S. v. Fitch, 97-10607 (9-23-11) (Block, Sr. D.J., with N. Smith; dissent by Goodwin).

Can a court sentence for a murder proved by clear and convincing evidence when the convicted offenses were fraud and money laundering? Yes, holds the 9th. The defendant here fell in love with a Colombian woman, and followed her to England. There, they continued seeing one another. By the way, he marries another woman, who agrees to follow him to Nevada. Money is transferred, and a trailer park home purchased (we all have our dreams). She and defendant go on a trip, and she is never seen again. Her money starts disappearing, family and friends do not hear from her, and even the bank starts calling. The defendant then steals an identity and marries his Colombian girlfriend. Prosecuted and convicted for numerous fraud offenses, he faces guidelines of 41 to 51 months. The court sentences him to 262 months. The 9th is troubled by the increase of sentence for an offense for which the defendant was not charged, much less convicted. The court found facts beyond clear and convincing and tied it to the fraud by stating that the murder provided the means for the fraud. The sentence was not at the top of the statutory max if all the counts ran consecutively nor was the sentence as long as murder. The 9th recognized that a court could consider all sorts of information, and so affirmed. There were no procedural errors, nor was the sentence substantively unreasonable. The 9th did seem uneasy, but deferred to the court. Goodwin, dissenting, argued that facts were found by the judge that increased the sentence and so ran afoul of the Sixth Amendment. This sentence went beyond because the murder was not charged, nor proved, and the sentence was for a crime for which he was not charged.

U.S. v. Rivera, No. 10-50313 (9-23-11) (Korman, Sr. D.J., with Noonan and Wardlaw).

The 9th held that petty thefts can be aggravated felonies for 1326 purposes because they act as recidivist enhancements that raise the sentence of theft to more than a year. Petty theft in the California code is not a generic theft, but a modified categorical approach. Looking at the charging document, plea, and judgment, supports such a finding.

Orel wits v. Sisto, No. 09-16142 (9-22-11) (Graber with Bea; O'Scannlain concurring).

The district court ordered the state to conduct a new parole hearing. The warden appealed. Maybe the court erred in ordering the hearing; after all, the Supremes in Swarthout subsequently held that the analysis was whether some due process was followed, not the decision itself. However, the ordering of a new hearing is not a release of the petitioner. Hence, it is not a final order. There were other claims unresolved. The appeal, therefore, was dismissed for lack of jurisdiction. O'Scannlain argues that the lack of jurisdiction should be characterized as mootness in light of the fact that the hearing was held, and the petitioner received relief. O'Scannlain worries that a state could not appeal an erroneous order that stops short of ordering release.

U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

The 9th affirms the sentence on a misdemeanor possession conviction (a lesser included), and the condition of suspicionless searches, but reverses the condition for DNA collection. The district court exceeded its statutory authority in ordering it. In a concurrence, Graber notes the distinction in treatment of defendants on parole and probation. Defendants on probation have slightly greater expectations of privacy than parolees. The Supremes recognize this but the 9th continues to treat the two sentences the same. A probationer may not be subject to a suspicionless search as would a parolee under Knights. Grabber calls for an en banc to recognize the distinction.

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).

Creech v. Richardson, No. 10-99105 (W. Fletcher with Bybee and Christen) –- The Ninth Circuit affirmed the denial of an Idaho state prisoner’s habeas petition, in which he challenged a death sentence imposed at resentencing following Creech v. Arave, 947 F.2d 873 (9th Cir. 1991), rev’d in part, 507 U.S. 463 (1993).

The district court had certified discrete portions of the petitioner’s claim of IAC at sentencing for failing to present mitigating evidence.  Under Browning v. Baker, 875 F.3d 444 (9th Cir. 2017), the petitioner asked the court to broaden the COA to include the entire claim.  The court declined to do so, reasoning that the district court had effectively complied with the directive in Browning to “craft” the COA at “a higher level of generality.”  Plus, the district court had reexamined other parts of the claim when the case was remanded for further proceedings in light of Martinez v. Ryan, 566 U.S. 1 (2012).

The Idaho Supreme Court’s conclusion that absent mitigating evidence at resentencing did not affect the outcome of the proceeding was reasonable.  Resentencing took place before the same judge who had originally imposed the death sentence, and he took judicial notice of the evidence presented at the first sentencing hearing.  The only new evidence presented at resentencing related to the petitioner’s childhood sexual abuse.  Given the aggravated nature of the killing, this new evidence and other evidence that was allegedly absent from the resentencing would not have affected the outcome.

Because of Shinn v. Ramirez, 142 S. Ct. 1718 (2022), the district court could not consider new evidence presented for the first time in federal court under Martinez.  But even if it could, the court ruled that it would not have changed the outcome of the resentencing hearing.

The district court had dismissed some claims as subject to the second or successive petition bar.  The court reversed the dismissal of those claims but, instead of remanding them for consideration by the district court on the merits, addressed the merits of those claims and denied them.  These claims related to the validity of the underlying murder conviction, which the petitioner was permitted to challenge for a second time under Magwood v. Patterson, 561 U.S. 320 (2010).  These claims went to a potential conflict of interest in the public defender’s office and the trial court’s decision to deny the petitioner’s request to withdraw his guilty plea.

The court denied the petitioner’s request for a remand under Lackey v. Texas, 514 U.S. 1045 (1995), in light of the four decades that the peittioner has spent on death row.

Finally, the court denied the petitioner’s request to file replacement briefs in the wake of Ramirez, because that decision did not affect the court’s treatment of the claims in the appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/20/10-99015.pdf

U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

The 9th affirms the sentence on a misdemeanor possession conviction (a lesser included), and the condition of suspicionless searches, but reverses the condition for DNA collection. The district court exceeded its statutory authority in ordering it. In a concurrence, Graber notes the distinction in treatment of defendants on parole and probation. Defendants on probation have slightly greater expectations of privacy than parolees. The Supremes recognize this but the 9th continues to treat the two sentences the same. A probationer may not be subject to a suspicionless search as would a parolee under Knights. Grabber calls for an en banc to recognize the distinction.

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).

U.S. v. Ibarra-Pinot, No. 10-50341 (9-20-11) (Bolton, D.J., with Ikuta; concurrence by Kozinski).

The defendant argued that he should have gotten a duress defense instruction. He presented evidence of threats to him and his family that unless he drove drugs across the border, he or they would be hurt or killed. He also presented evidence that the threat would be carried out. However, the trial court found that he did not present evidence on the third element, that he did not have a reasonable opportunity to escape the harm. The 9th affirmed the court. In a comprehensive opinion on the duress defense, the 9th parses the evidence, and explains that the defendant was allowed to present evidence, but he failed to show that he could not reasonably have sought help from the police, or authorities. In a concurrence, Kozinski would have sidestepped the discussion whether the court could have precluded the defense before trial, which he finds a difficult issue.

Echavarria v. Filson, Nos. 15-99001, 17-15560 (Fletcher with Berzon and Nguyen) --- The Ninth Circuit affirmed the grant of a habeas petition and a new trial filed by a Nevada death-row prisoner, holding that the fact that he was never told that the FBI agent he was convicted of killing had previously investigated criminal conduct by the judge who presided over his trial, at which he was accused of killing that FBI agent, created an intolerable risk of bias that violated his right to due process.　

In the summer of 1990, the petitioner attempted to rob a bank in Las Vegas where an FBI agent happened to be on other business. The agent foiled the robbery, but was killed in the process. The petitioner left the bank with a getaway driver. The driver was apprehended later that afternoon. The petitioner was caught in Juarez, Mexico, tortured by Mexican police, and then returned to Las Vegas to face the murder charges here. As it turned out, the agent had been involved in prior government corruption investigations relating to the Colorado River Commission. One of the members of the Commission was a Nevada state trial judge. The trial in the bank robbery case in which the agent was killed was assigned to the same trial judge whom the agent had previously investigated. Although no charges arose from the investigation, the judge did not recuse himself from the petitioner's trial. Although the driver's counsel knew about the connection between the agent and the judge before trial, nobody informed the petitoner's counsel until well after the trial was over and the petitioner had been sentenced to death.　

After the trial, the judge recused himself because he threatened the petitioner's counsel with bar discipline after counsel investigated potential juror misconduct by interviewing jurors. A different judge denied the petitioner's motion for a new trial, but the problematic judge entered the death judgment. The Nevada Supreme Court affirmed the conviction and sentence on direct appeal, rejecting a claim of judicial bias based on comments the judge made in the courtroom. The problematic trial judge also ruled on the petitioner's first state habeas petition. Once the petitioner received appointed federal counsel, he subpoenaed FBI records to obtain information about the agent's investigation of the problematic judge. He then returned to state court with two more rounds of state habeas proceedings, in which he aired his new information and claims of judicial bias. The state courts denied these new claims as "law of the case," seeing no difference between them and the claim he raised on direct appeal. Ultimately, the federal district court granted the petitioner a new trial on grounds of judicial bias stemming from the judge's failure to disclose the fact that the agent whom the petitioner had killed had previously investigated him as part of a government corruption probe.　

The state appealed the grant of relief to the Ninth Circuit, which affirmed. The invocation of the law-of-the-case doctrine in state habeas proceedings did not amount to an adjudication of the judicial bias claim on the merits for AEDPA purposes. On direct appeal, the petitioner was complaining about statements the judge made in the courtroom. He had no idea about the connection between the judge and the agent until he filed his second and third rounds of state habeas proceedings. At most, this was an adjudication of a claim of actual bias, not a claim that a reasonable observer would think that a judge was biased. The Nevada Supreme Court has historically failed to appreciate the difference between the two kinds of judicial bias, requiring correction from the U.S. Supreme Court. See Rippo v. Baker, 137 S. Ct. 905 (2017). Thus the federal district court correctly reviewed the petitioner's judicial bias claim relating to the undisclosed connection between the agent and the judge de novo. In light of the FBI's involvement in the petitioner's torture at the hands of Mexican police and their investigation into the judge's conduct that led to no charges being filed, a reasonable observer would perceive a risk that an average judge would be biased under those circumstances. The petitioner had been accused of killing the very FBI agent who had investigated the trial judge, and in order to try the case the judge had to resolve accusations relating to the FBI's involvement in the petitioner's torture by police in Mexico. The petitioner deserved a new trial.　

Congratulations to Assistant Federal Public Defenders Randolph Fiedler, Sylvia Irvin, and Mike Pescetta of Las Vegas.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/25/15-99001.pdf

Browning v. Baker, No. 15-99002 (9-20-17)(Gould w/Wardlaw; dissent by Callahan).  The 9th gave habeas relief in this Nevada capital matter. The 9th found that in a prosecution for a robbery and murder in a Las Vegas jewelry store, the prosecution committed Brady violations.  The expectation of favorable treatment by a witness for his testimony, an observation of a shoeprint by an officer, and the victim's description of his assailant's hairstyle all were favorable to the petitioner.  The evidence should have been turned over.  The evidence was material.  As for AEDPA deference, the 9th finds that the Nevada Supreme Court's use of the Supremes precedent was objectively unreasonable. The 9th also granted relief for IAC as to representation.  There was no Napue violation (awareness of evidence). The petitioner's escape conviction was upheld; there was no error presented.  Dissenting, Callahan argues that AEDPA deference should control.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/20/15-99002.pdf

Case o' the Week: Trip Kings a Losing Hand - King, Probation Searches, and the Fourth Amendment

King I (panel): We think that the Ninth has gotten it wrong, and suspect that the suspicionless search of probationers conflicts with Supreme Court precedent in Samson.

– Great!

King II (en banc): We overrule Ninth precedent holding that there is no constitutional difference between probation and parole for purposes of the fourth amendment, and remand to the panel to tackle again.

– Fantastic!

King III (on remand to panel): The suspicionless search of this probationer was ok.

– ?!?

United States v. King, 2013 WL 886161 (9th Cir. Mar. 8, 2013), decision available here.

Players: Decision by Judge Graber, joined by Judge Tallman. Dissent by Judge Berzon. Hard-fought appeal by ND Cal AFPD Dan Blank and R&W Attorney Steven Koeninger.

Facts: King was suspected of a homicide. Id. at *1. S.F. Police learned King was on felony probation. His probation agreement stated that he was “subject to a warrantless search condition, as to [his] . . . premises . . . with or without probable cause . . .” Id.(emphasis added). A search of King’s residence produced a shotgun. Id. 

 The district court denied King’s suppression motion, finding reasonable suspicion supported the search. Id. 

 This panel found reasonable suspicion did not exist, but held that under the Ninth’s Baker decision, a suspicionless search of a probationer did not violate the Fourth Amendment. Id.

 The en banc court reversed and remanded to the panel, in light of the Supreme’s decision in Samson v. California, 547 U.S. 843 (2006).  See blog entry here. 

Issue(s): “The question that we must answer is whether the Fourth Amendment permits a suspicionless search of a probationer’s residence.” Id. at *1. Or “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 [satisfies] the reasonableness requirement of the Fourth Amendment.” Id. at *2.

Held: “We hold that such a search is permissible when, as here, the probationer has accepted a suspicionless-search condition as part of a probation agreement. We therefore affirm.” Id. “[W]e . . . conclude that Defendant’s expectation of privacy was small. We hold, therefore, that the search conducted here intruded on Defendant’s legitimate expectation of privacy only slightly.” Id. at *2.

Hon. Marsha S. Berzon

Of Note: Dissenting Judge Berzon wonders what probation agreement the majority is reading. Id. at *5 (Berzon, J., dissenting). 

  Writing for the majority, Judge Graber assures us that King has a probation search condition that permitted “suspicionless searches.” Id. at *3. Actually, as Judge Berzon correctly observes, King’s search condition only allowed searches “without probable cause.” Id. at *5. Judge Berzon persuasively explains that this specific condition indicates that some cause is required – just not the relatively high standard of probable cause. Id. at *6. The dissent appropriately assumes that the state sentencing judge acted deliberately, and meant the language that was actually used in the search condition. Id. at *5. 

  Judge Berzon argues that this King iteration is inconsistent with the Supreme Court’s Fourth Amendment “mode of analysis,” id. at *7, and seems directly contrary to the Supreme Court’s instruction in Samson that probationers have greater privacy interests than parolees. Id. at *8. 

  A petition for rehearing is underway: knock wood that the en banc court takes up King again, and brings the Ninth back on track with the Supreme Court and Samson.

How to Use: Preserve this issue: this latest King opinion will hopefully not be the last word on the issue. Meanwhile, keep reading the precise language in probation agreements. Judge Graber concedes that King does not hold that the Fourth Amendment permits suspicionless searches of probationers who have not accepted a suspicionless-search condition – maybe your language will be more clear than the (apparently clear) language in King. Id. at *4.

                                               

For Further Reading: We could speculate on how cops exploit and dodge probation search conditions to shake down “dirtbags” – but why put words in their mouths, when they describe their techniques such enthusiasm? See online forum here.

Image of Three Kings movie poster from http://ia.media-imdb.com/images/M/MV5BMTI0ODg0NTA4Ml5BMl5BanBnXkFtZTcwNDEwNTEzMQ@@._V1_SY317_CR4,0,214,317_.jpg

Image of the Honorable Judge Marsha S. Berzon from http://www.flickr.com/photos/50533836@N06/8180088017/sizes/o/in/set-72157632053060402/

Steven Kalar, Federal Public Defender ND Cal FPD. Website at www.ndcalfpd.org

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Smith v. Baker, No. 14-99003 (5-21-20)(Christen w/Murguia; N. Smith concurring).  This is an affirmance of a capital petition dismissal. The 9^th finds ineffective mitigation and an error in a jury instruction, but concludes that both were harmless. Concurring, Smith would find no sentencing IAC.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/21/14-99003.pdf

 

Blake v. Baker, No. 12-15522 (Tashima with Fletcher & Nguyen)

This opinion contributes to an area of federal habeas law on which there are few published decisions from any circuit -- the circumstances in which a habeas petitioner may return to state court under Rhines v. Weber, 544 U.S. 269 (2005), to exhaust claims presented in a mixed § 2254 petition.  In this death penalty case, the petitioner filed a mixed petition containing an unexhausted claim of penalty-phase ineffective assistance of counsel.  The petitioner presented a host of evidence to the district court that went undiscovered both by counsel at the time of sentencing and by state habeas counsel.  Because state habeas counsel neglected to raise this claim in state court, it was unexhausted in the § 2254 proceedings.  But because the petitioner presented other, exhausted claims in his petition, he was eligible for a Rhines stay so he could return to state court and exhaust the claim.  In order to qualify, however, he had to show "good cause" for failing to exhaust it, and he argued that state habeas counsel's failure to raise the claim amounted to good cause.  Cf. Martinez v. Ryan, 132 S. Ct. 1309 (2012).  The district court disagreed, holding that ineffective assistance of state habeas counsel could never qualify as good cause to return to state court; it then dismissed the mixed § 2254 petition pursuant to Rose v. Lundy, 455 U.S. 509 (1982).  The Ninth Circuit reversed.  The petitioner made more than a "bare allegation" of ineffective assistance of state habeas counsel; he instead documented state habeas counsel's failures to discover a wealth of mitigating evidence that should have been presented.  This went to the potential merit of the unexhausted penalty-phase ineffective-assistance claim and to showing that there was no intentional delay in litigation.  Moreover, the panel held that a showing cause under Martinez should be sufficient to show entitlement to a stay under Rhines.

Congratulations to AFPD Tiffani Hurst of Nevada.

The opinion is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/03/14/12-15522.pdf

 

 

1.  US v. Padilla-Diaz, No. 15-30279 (7-5-17)(Fletcher w/McKeown & Fisher).  The 9th rejects three challenges to the amendment that lowered the drug guidelines by two levels, but stated that the reduced sentence could not be lower than the minimum guideline range.  The first challenge argues that the retroactive authority conflicts with the purposes authority.  The defendant states this had the effect of converging sentences toward the minimum sentence rather than an individualized determination.  The 9th granted that the argument had some appeal, but reconciled the two statutory provisions by one being a general mission directive and the other being specific for retroactivity and limited in scope.  The second challenge is equal protection: the 9th finds that the retroactive policy is not irrational.  The government has two rational bases for the policies--simplicity and to promote cooperation with the government.  Those two do the trick.  Lastly, two defendants raise a due process challenge as their plea agreements reserve the right to seek further reductions for future retroactive amendments.  The 9th reasoned that the amendment came after the plea was entered into, and was not a retroactive deprivation.  The reduction itself was limited.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/15-30279.pdf

 

2.  Petrocelli v. Baker, No. 14-99006 (7-5-17)(Fletcher w/Friedland; concurrence by Christen).  The 9th affirmed denial of a petition contesting a conviction for first degree murder.  The 9th granted capital sentencing relief, finding that the State had committed Estelle error -- the State prosecutor used a psychiatrist as an expert to evaluate the petitioner for competency and the psychiatrist had (1) failed to give Miranda warnings; (2) notify defense counsel; and (3) testified at sentencing as to future dangerousness. The 9th also found that the State had waived any defense to the admission.  Concurring, Christen would find that the prosecutor had engaged in egregious misconduct, and so under Brecht (fn 9), prejudice need not be shown as the integrity of the process was compromised.

As to the merits, the 9th found that petitioner had failed to invoke his Miranda rights by his unambiguous statements in one interrogation.  Two subsequent interrogations resulting in statements were only used for impeachment, and were not involuntary.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/14-99006.pdf