Saturday, March 23, 2013

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,0,214,317_.jpg

Image of the Honorable Judge Marsha S. Berzon from

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


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