King

Daniel P. Blank, Assistant Federal Public Defender, San Francisco, CA, for the defendant-appellant.

Suzanne B. Miles, Assistant United States Attorney, San Francisco, CA, for the plaintiff-appellee.

Before: SUSAN P. GRABER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

PER CURIAM Opinion; Concurrence by Judge GRABER; Concurrence by Judge TALLMAN.

PER CURIAM:

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)(1). He challenges the district court's denial of his motion to suppress evidence obtained during a warrantless probation search of his room. [1] We review de novo a district court's denial of a motion to suppress. United States v. Mayer, 560 F.3d 948, 956 (9th Cir.2009). Underlying findings of fact are reviewed for clear error. Id. We affirm.

On May 10, 2010, San Francisco Police Department ("SFPD") officers reported to the scene of a homicide. The victim, Shawnte Sparks, had been shot and killed early that morning. While at the scene, SFPD Officer Joseph Engler noticed an individual ("CW1") watching the police activity. Officer Engler approached CW1, whom he had never met and…

concurring in the judgment:

I concur in the judgment that the district court properly denied King’s motion to suppress. I write separately because I disagree with my colleagues’ conclusion that Inspector Engler lacked reasonable suspicion to connect King to the homicide. Testimony adduced at the evidentiary hearing sufficiently corroborated his possible motive and opportunity, as well as explained how the detectives confirmed a detailed identification of King as the shooter provided by informants. Because an officer’s reasonable suspicion of criminal activity is constitutionally sufficient to search the home of a probationer who is subject to a search condition, both United *1140 States v. Knights, 534 U.S. 112, 121 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001), and United States v. Baker, 658 F.3d 1050 (9th Cir.2011), authorize the officers’ actions. The district court correctly held that Inspector Engler had reasonable suspicion of criminal activity.

Courts must consider the totality of the circumstances in determining whether an officer had reasonable suspicion. See United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981). It is true that no homicide…

concurring:

I concur fully in the per curiam opinion. But, for the reasons expressed in the concurrence in United States v. Baker, 658 F.3d 1050, 1058-60 (9th Cir.2011) (Graber, J., concurring), I again urge the court to reconsider this issue en banc so as to take account of developments in Supreme Court law.

PER CURIAM Opinion; Concurrence by Judge GRABER; Concurrence by Judge TALLMAN.

OPINION

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)(1). He challenges the district court’s denial of his motion to suppress evidence obtained during a warrantless probation search of his room. 1 We review de novo a district court’s denial of a motion to suppress. United States v. Mayer, 560 F.3d 948, 956 (9th Cir.2009). Underlying findings of fact are reviewed for clear error. Id. We affirm.

On May 10, 2010, San Francisco Police Department (“SFPD”) officers reported to the scene of a homicide. The victim, Shawnte Sparks, had been shot and killed early that morning. While at the scene, SFPD Officer Joseph Engler noticed an individual (“CW1”) watching the police activity. Officer Engler approached CW1, whom he had never met and who previously had not been an informant for the SFPD, and introduced himself.

Initially, CW1 appeared upset and expressed hesitation about speaking with the police. Nevertheless, CW1 spoke at length with Officer Engler. CW1 did not witness the shooting. Shortly after the shooting, however,…