Argued and Submitted September 19, 2012 —San Francisco, California
Amended August 27, 2013
Appeal from the United States District Court for the Northern District of California D.C. No. 3:10-cr-00455-WHA-1 William Alsup, District Judge, Presiding
Daniel P. Blank, Assistant Federal Public Defender, San Francisco, California, for Defendant-Appellant.
Suzanne B. Miles, Assistant United States Attorney, San Francisco, California, for Plaintiff-Appellee.
Before: Susan P. Graber, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.
The panel amended a March 8, 2013, opinion affirming a conviction, and the court denied a petition for rehearing en banc, in a case involving whether the Fourth Amendment permits a suspicionless search of a probationer's residence.
In the amended opinion, the panel held that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment.
Dissenting, Judge Berzon wrote that the majority does not give appropriate weight to the particular language in the defendant's search condition and to the Supreme Court's holdings that probationers have greater expectations of privacy than parolees.
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.
GRABER, Circuit Judge:
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 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. When they checked into his criminal history, they learned that he was on adult felony probation in the City and County of San Francisco for violation of California Penal Code section 273.5, which prohibits the willful infliction of corporal injury on a cohabitant. 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." 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, ...