King

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

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 1 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. 2 When they checked into his criminal history, they…

dissenting:

I continue to agree with Judge Graber that San Francisco Police Department officers lacked reasonable suspicion to search Marcel King at his residence. See Op. at 807; United States v. King, 672 F.3d 1133, 1139 (9th Cir.2012) (per curiam), vacated, 687 F.3d 1189 (9th Cir.2012) (en banc) (per curiam). I part ways with the present majority regarding whether police could search King’s home without any individualized suspicion. The majority does not give appropriate weight to two factors that are for me decisive — the particular language in King’s search condition and the Supreme Court’s holdings that probationers have greater expectations of privacy than parolees. I therefore respectfully dissent.

I

Like the majority, I “examine the totality of the circumstances to determine whether the suspicionless search of [King’s] residence was reasonable.” Op. at 808. I begin by analyzing King’s privacy interests under the Fourth Amendment, and then turn to the weighing of those interests against competing, governmental concerns. See Samson v. California, 547 U.S. 843, 848 , 126 S.Ct. 2193 , 165 L.Ed.2d 250 (2006); United States v. Knights, 534 U.S. 112, 118-19 , 122 S.Ct. 587 ,…