United States v. Marcel King

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-10182 Plaintiff-Appellee, D.C. No. v. 3:10-cr-00455-

WHA-

MARCEL DARON KING ,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Argued and Submitted September 19, 2012—San Francisco, California

Filed March 8, 2013

Before: Susan P. Graber, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Berzon UNITED STATES V . KING

SUMMARY*

Criminal Law

Affirming the district court’s denial of a suppression motion, the panel held that the Fourth Amendment permits a suspicionless search of a probationer’s residence when the probationer has accepted a suspicionless-search condition as part of a probation agreement.

Dissenting, Judge Berzon wrote that the majority does not give appropriate weight to two factors – the particular language in the defendant’s search condition and the Supreme Court’s holdings that probationers have greater expectations of privacy…

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 988-89; 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 989-90. 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.…

Opinion by Judge GRABER; Dissent by Judge BERZON.

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 proba *988 tioner’s residence. 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.

Officers of the San Francisco Police Department suspected that Defendant was involved in a homicide. 2 When they checked into his criminal history, they learned that he was on adult felony probation in the City and County of San Francisco. 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.” 3 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…