Appeal from the United States District Court for the Northern District of California, William Alsup, District Judge, Presiding. D.C. No. 3:10–cr–00455–WHA–1.
The opinion of the court was delivered by: Graber, Circuit Judge
Argued and Submitted September 19, 2012
Before: SUSAN P. GRABER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.
Opinion by Judge GRABER; Dissent by Judge BERZON.
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*fn1 of a probationer'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.*fn2 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."*fn3 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 suspicionless 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 " 'assess[ ], 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 ...