Baker

Jay A. Nelson and Ethan A. Balogh, Coleman & Balogh LLP, San Francisco, CA, for the defendant-appellant.

Susan Gray and Erika R. Frick, Assistant United States Attorneys, San Francisco, CA, for the plaintiff-appellee.

Before: BARRY G. SILVERMAN and SUSAN P. GRABER, Circuit Judges, and BARBARA M.G. LYNN, District Judge. [*]

Opinion by Judge GRABER; Concurrence by Judge GRABER.

GRABER, Circuit Judge:

A jury convicted Defendant Robert Baker of misdemeanor possession of methamphetamine but acquitted him of more serious felony drug charges. The district court sentenced Defendant to three years' probation. Defendant timely appeals his conviction and two conditions of probation, one permitting suspicionless searches and one requiring Defendant to submit to DNA collection. We affirm the conviction and the suspicionless search condition but, because the district court exceeded its statutory authority by imposing the DNA condition, we reverse with instructions to strike that condition and to order expungement of DNA records collected pursuant to it.

After a high-speed chase in northern California, police arrested the driver, whose involvement is not material here, and the passenger,…

Opinion by Judge GRABER; Concurrence by Judge GRABER.

OPINION

A jury convicted Defendant Robert Baker of misdemeanor possession of methamphetamine but acquitted him of more serious felony drug charges. The district court sentenced Defendant to three years’ probation. Defendant timely appeals his conviction and two conditions of probation, one permitting suspicionless searches and one requiring Defendant to submit to DNA collection. We affirm the conviction and the suspicionless search condition but, because the district court exceeded its statutory authority by imposing the DNA condition, we reverse with instructions to strike that condition and to order expungement of DNA records collected pursuant to it.

FACTUAL AND PROCEDURAL HISTORY

After a high-speed chase in northern California, police arrested the driver, whose involvement is not material here, and the passenger, who was Defendant. Police officers discovered in the vehicle 10 grams of a white substance that later proved to be 99.1% pure methamphetamine.

The government indicted Defendant for crimes involving a much greater amount of methamphetamine than the amount found in the vehicle: one count of conspiracy to…

concurring:

I concur fully in the panel’s opinion. I write separately to state my view that, by oversight, our recent opinions erroneously have foreclosed Defendant’s potentially viable Fourth Amendment argument. Although a three-judge panel cannot correct that mistake, the en banc court can. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc).

Defendant argues that the probation condition authorizing a suspicionless search violates the Fourth Amendment. The issue of search conditions has an important jurisprudential history. Before turning to that history, I note that the difference between probation and parole is important and, as discussed below, sometimes overlooked. Probation is a lesser form of punishment than imprisonment. Parole, which is the state-law equivalent of federal supervised release, is the early release of a prisoner subject to certain conditions. Functionally, they are very similar, with a violation of one of the conditions often resulting in imprisonment. Constitutionally, however, a parolee’s expectation of privacy may not be identical to a probationer’s expectation of privacy, as discussed below.

The first two relevant Supreme Court cases…