UNITED STATES of America, Plaintiff-Appellee, v. Marcel Daron KING, Defendant-Appellant, 736 F.3d 805

Opinion by Judge GRABER; Dissent by Judge BERZON. ORDER The opinion filed March 8, 2013, and published at 711 F.3d 986, is amended by the opinion filed concurrently with this order. With these amendments, Judges Graber and Tallman have voted to deny Appellant’s petition for rehearing en banc, and Judge Berzon has voted to grant it. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Appellant’s petition for rehearing en banc is DENIED. No further petitions for rehearing or for rehearing en banc shall be entertained.

OPINION GRABER, Circuit Judge: Defendant Marcel Daron King appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The question that we must answer is whether the Fourth Amendment permits a suspicionless search of a probationer’s residence. We hold that such a search is permissible when, as here, a violent felon has accepted a suspicionless-search condition as part of a probation agreement. We therefore affirm. Officers of the San Francisco Police Department suspected that Defendant was involved in a homicide.

When they checked into his criminal history, they learned that he was on adult felony probation in the City and County of San Francisco for violation of California Penal Code

section 273.5, which prohibits the willful infliction of corporal injury on a cohabitant. Defendant’s probation agreement included the following term: “Defendant is subject to a warrantless search condition, as to defendant’s person, property, premises and vehicle, any time of the day or night, with or without probable cause, by any peace, parole or probation officer.” The officers searched Defendant’s residence and found an unloaded shotgun under his bed. That shotgun was the subject of Defendant’s indictment under 18 U.S.C. § 922(g)(1).

In the district court, Defendant filed a motion to suppress the shotgun, arguing that it was the fruit of an illegal search. The court denied the motion, holding that the officers had reasonable suspicion to conduct the search. After a bench trial with stipulated testimony, conducted only to preserve Defendant’s right to appeal the denial of his motion to suppress, Defendant was convicted. On appeal, a majority of this panel concluded that police lacked reasonable suspicion that Defendant was engaged in criminal activity. United States v.

King, 672 F.3d 1133, 1139 (9th Cir.) (per curiam), vacated, 687 F.3d 1189 (9th Cir.2012) (en banc) (per curiam). Nevertheless the majority also held that the district court properly denied Defendant’s motion to suppress because, under United States v. Baker, 658 F.3d 1050, 1055-56 (9th Cir.2011), suspicionless-search conditions for probationers do not violate the Fourth Amendment. Baker, however, rested on the faulty premise that there is no difference, for Fourth Amendment purposes, between probationers and parolees. Id. at 1058-60 (Graber, J., concurring).

That premise was at odds with the Supreme Court’s statement in Samson v. California, 547 U.S. 843, 850, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” The en banc court, granted rehearing to consider the continuing validity, in light of Samson, of Baker and several related cases. United States v. King, 682 F.3d 779 (9th Cir.2012) (order). In a brief opinion, the court overruled Baker and the related cases, vacated our panel opinion, and remanded the case to us.

United States v. King, 687 F.3d 1189 (9th Cir.2012) (en banc) (per curiam). Now that Baker no longer controls, and because the panel majority has already held that police lacked reasonable suspicion that Defendant was involved in criminal activity, we must-decide whether the search of Defendant’s residence satisfied the Fourth Amendment even though police lacked reasonable suspicion. Thus, the question presented is whether a suspicionless search, conducted pursuant to a condition of Defendant’s probation, violates the Fourth Amendment. In United States v.

Knights, 534 U.S. 112, 114, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Supreme Court upheld a search that police had conducted pursuant to the terms of a defendant’s probation, which authorized searches “with or without a search warrant, warrant of arrest or reasonable cause.” The police had no warrant for the search of the defendant’s apartment, but they did have reasonable suspicion that the defendant was involved in criminal activity. Id. at 114-15, 122 S.Ct. 587.

The Court balanced the degree of intrusion on the defendant’s expectation of privacy against the degree to which the government needed to conduct the search for the promotion of legitimate governmental interests. Id. at 118-19, 122 S.Ct. 587. The Court held that “the search ... was reasonable under our general Fourth Amendment approach of examining the totality of the circumstances, with the probation search condition being a salient circumstance.” Id. at 118, 122 S.Ct. 587 (citation and internal quotation marks omitted).

The Court did not decide the question that we confront here: “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 would have satisfied the reasonableness requirement of the Fourth Amendment.” Id. at 120 n. 6, 122 S.Ct. 587. In Samson, 547 U.S. at 846, 126 S.Ct. 2193, the Supreme Court considered whether a California law that authorizes searches of parolees “with or without a search warrant and with or without cause” violates the Constitution.

The Court used the same balancing approach that it had used in Knights. Samson, 547 U.S. at 848-54, 126 S.Ct. 2193. In assessing the defendant’s privacy interest, the Court wrote that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Id. at 850, 126 S.Ct. 2193. Balancing the defendant’s privacy interests against the government’s interests, the Court “conclude[d] that the Fourth Amendment does not prohibit a police officer from conducting a suspicion-less search of a parolee.” Id. at 857, 126 S.Ct. 2193.

In light of Knights and Samson, our task is to examine the totality of the circumstances to determine whether the suspicionless search of Defendant’s residence was reasonable. Id. at 848, 126 S.Ct. 2193. To do so, we must “ ‘assessf ], on the one hand, the degree to which [the search] intrudes upon [Defendant’s] privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Id. (quoting Knights, 534 U.S. at 119, 122 S.Ct. 587).

Defendant’s status as a probationer means that he begins with a lower expectation of privacy than is enjoyed by a citizen who is not subject to a criminal sanction. Knights, 534 U.S. at 119, 122 S.Ct. 587. “Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.... Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.” Id; (internal quotation marks omitted).

Additionally, “the probation search condition [is] a salient circumstance.” Id. at 118, 122 S.Ct. 587. As in Knights, the judge who sentenced Defendant to probation “determined that it was necessary to condition the probation on [his] acceptance of the search provision.” Id. at 119, 122 S.Ct. 587. “The probation order clearly expressed the search condition[,] ... [Defendant] was unambiguously informed of it,” and he accepted it. Id.

Both Samson and Knights “found that acceptance of a clear and unambiguous search condition ‘significantly diminished [a defendant’s] reasonable expectation of privacy.’ ” Samson, 547 U.S. at 852, 126 S.Ct. 2193 (quoting Knights, 534 U.S. at 120, 122 S.Ct. 587). Under Knights, not only did Defendant begin with a lower expectation of privacy than an average citizen has, but the probation search condition “significantly diminished” that lower expectation of privacy. We recognize that, under Samson, Defendant has a greater expectation of privacy than does a parolee. Id. at 850, 126 S.Ct. 2193.

So we do not go so far as to hold, as the Samson Court did, that Defendant “did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852, 126 S.Ct. 2193. But we do conclude that Defendant’s expectation of privacy was small, in light of the serious and intimate nature of his underlying conviction for the willful infliction of corporal injury on a cohabitant. We hold, therefore, that the search conducted here intruded on Defendant’s legitimate expectation of privacy only slightly. On the other side of the balance, the government has several important interests.

First, the state has an interest in “apprehending violators of the criminal law, thereby protecting potential victims” from probationers’ recidivism. Knights, 534 U.S. at 121, 122 S.Ct. 587. “ ‘[T]he very assumption of the institution of probation’ is that the probationer ‘is more-likely than the ordinary citizen to violate the law.’ ” Id. at 120, 122 S.Ct. 587 (quoting Griffin v. Wisconsin, 483 U.S. 868, 880, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). In fact, “[t]he recidivism rate of probationers is significantly higher than the general crime rate.” Id.

Second, the state has an interest in discovering criminal activity and preventing the destruction of evidence. The Supreme Court has recognized that probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply. Id.

All the more so when, as here, the probationer agreed to a search condition that permits warrantless, suspicionless searches of the probationer’s “person, property, premises and vehicle[ ] [at] any time of the day or night.” Finally, the state has an interest in a probationer’s successful completion of probation and in his or her reintegration into society. Id. at 120-21, 122 S.Ct. 587.

The Supreme Court has observed that, by reducing recidivism, a state’s “ability to conduct suspicionless searches of parolees ... aids, rather than hinders, the reintegration of parolees into productive society.” Samson, 547 U.S. at 854, 126 S.Ct. 2193. That statement is true of probationers as well. We conclude that the governmental interests at stake here “are substantial.” Id. at 853, 126 S.Ct. 2193. We further conclude that the state has a significant need to promote those interests through suspicionless searches of probationers.

As the Supreme Court has stated, the Fourth Amendment does not “require the State to shut its eyes” to its legitimate interests. Knights, 534 U.S. at 121, 122 S.Ct. 587. Nor does it “render the States powerless to address these concerns effectively.” Samson, 547 U.S. at 854, 126 S.Ct. 2193. Balancing the slight intrusion on Defendant’s expectation of privacy against the government’s significant need to promote its legitimate governmental interests, we hold that the search conducted here was reasonable.

We need not decide whether the Fourth Amendment permits suspicion-less searches of probationers who have not accepted a suspicionless-search condition, or of lower level offenders who have accepted a suspicionless-search condition, because those cases are not before us. Nor do we condone searches that are conducted for illegitimate reasons, such as harassment. We hold only that a suspicionless search, conducted pursuant to a suspicion-less-search condition of a violent felon’s probation agreement, does not violate the Fourth Amendment. AFFIRMED. .

We use the term ''suspicionless search” to refer to a search for which the police have less than reasonable suspicion. That is, the term covers both a search as to which there is some (but not enough) suspicion and a search that is, for example, conducted randomly with no individualized suspicion. . We recite only the facts that relate to the present question. The original panel opinion, United States v. King, 672 F.3d 1133 (9th Cir.) (per curiam), vacated, 687 F.3d 1189 (9th Cir.2012) (en banc) (per curiam), contains a full statement of the facts. .

Under California law, Defendant’s agreement to the warrantless search condition as part of his state-court probation was an agreement to be subject to suspicionless searches. See People v. Bravo, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336, 342-43 (1987) (holding that “a search condition of probation that permits a search without a warrant also permits a search without 'reasonable cause' "); see also People v. Woods, 21 Cal.4th 668, 88 Cal.Rptr.2d 88, 981 P.2d 1019, 1023-24 (1999) (approving Bravo’s holding).

We disagree with the dissent's assertion that Bravo represents only a decision under federal constitutional standards. Dissent at 814, n. 6. The court there interpreted "the scope of appellant's consent in agreeing to the search condition of his probation" under California law. Bravo, 238 Cal.Rptr. 282, 738 P.2d at 342. The meaning of such a California term of probation is a question of state law. Cf. Parrish v. Wainwright, 614 F.2d 1028, 1029 (5th Cir.1980) (per curiam) (holding that the meaning of a parole condition is a matter of state law).

Woods cited Bravo's holding with approval and looked to California law to examine the imposition on probationers of search clauses. Woods, 88 Cal. Rptr.2d 88, 981 P.2d at 1023-24, 1025 n. 5. The Woods court also observed, referring to California law, that "the search in any case remains limited in scope to the terms articulated in the search clause.” Id. 88 Cal. Rptr.2d 88, 981 P.2d at 1027-28 (citing Bravo, 238 Cal.Rptr. 282, 738 P.2d at 336). Only after the meaning and scope of a search clause are determined, under state law, does the federal Fourth Amendment analysis begin.

Thus, although the dissent plausibly parses King's search clause, California law at the time this search condition was imposed on King interpreted such clauses more broadly, to waive all claims of privacy. We are not at liberty to do otherwise.