Saturday, August 04, 2012

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

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


Labels: , , ,


Post a Comment

<< Home