Sunday, September 25, 2011

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 Image of the Honorable Pamela Rymer from

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


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