United States v. Baker

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-10223

Plaintiff-Appellee, D.C. No.

v.  3:09-cr-00966-

ROBERT BAKER, CRB-2

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

July 14, 2011—San Francisco, California

Filed September 20, 2011

Before: Barry G. Silverman and Susan P. Graber,

Circuit Judges, and Barbara M. G. Lynn, District Judge.*

Opinion by Judge Graber;

Concurrence by Judge Graber

*The Honorable Barbara M. G. Lynn, United States District Judge for

the Northern District of Texas, sitting by designation.

17843

UNITED STATES v. BAKER 17845

COUNSEL

Jay A. Nelson and Ethan A. Balogh, Coleman & Balogh LLP,

San Francisco, California, for the defendant-appellant.

17846 UNITED STATES v. BAKER

Susan Gray and Erika R. Frick, Assistant United States Attor-

neys, San Francisco, California, for the plaintiff-appellee.

OPINION

GRABER, Circuit Judge:

A jury convicted Defendant Robert Baker of misdemeanor

possession of methamphetamine but acquitted him of more

serious felony drug charges. The district court sentenced

Defendant to three years’ probation. Defendant timely appeals

his conviction and two conditions of probation, one permit-

ting suspicionless searches and one requiring Defendant to

submit to DNA collection. We affirm the conviction and the

suspicionless search condition but, because the district court

exceeded its statutory authority by imposing the DNA condi-

tion, we reverse with instructions to strike that condition and

to order expungement of DNA records collected pursuant to

it.

FACTUAL AND PROCEDURAL HISTORY

After a high-speed chase in northern California, police

arrested the driver, whose involvement is not material here,

and the passenger, who was Defendant. Police officers dis-

covered in the vehicle 10 grams of a white substance that later

proved to be 99.1% pure methamphetamine.

The government indicted Defendant for crimes involving a

much greater amount of methamphetamine than the amount

found in the vehicle: one count of conspiracy to distribute and

possess with intent to distribute 50 grams or more of metham-

phetamine and one count of distribution and possession with

intent to distribute 50 grams or more of methamphetamine.

The government’s theory of the case was that, during the car

chase, Defendant had thrown large quantities of methamphet-

UNITED STATES v. BAKER 17847

amine from the car and that those amounts clearly totaled

more than 50 grams of methamphetamine. The only evidence

supporting that theory was the testimony of two police offi-

cers who were in the lead pursuit vehicle during the high-

speed chase. Those officers testified that, twice, their police

car was pelted by bags, thrown from Defendant’s vehicle,

each containing a large quantity of a white substance that cre-

ated a “snowstorm” effect for a period of three to five sec-

onds. The government argued that the jury should infer that

those bags contained methamphetamine and that Defendant

intended to distribute a large amount of methamphetamine.

At trial, Defendant exposed several weaknesses in the gov-

ernment’s case, including the fact that, during the chase, nei-

ther of the testifying officers had relayed the occurrence of a

“snowstorm” to police dispatch. Most relevant here, Defen-

dant also called as his sole witness Deputy Michael Thomp-

son. Deputy Thompson participated in the high-speed chase

and never saw the “snowstorm” described by the two other

officers.

The defense strategy worked. The jury acquitted Defendant

of both felony counts but found him guilty of the lesser-

included misdemeanor offense of knowingly and intentionally

possessing methamphetamine, in violation of 21 U.S.C.

§ 844(a). In a special verdict form, the jury found that the

offense involved 9.91 grams of actual methamphetamine,

which corresponds precisely to the amount found in Defen-

dant’s vehicle.

Defendant moved to dismiss the indictment in its entirety

because of an allegedly egregious violation by the govern-

ment of its Brady obligations. According to Defendant, the

government originally listed Deputy Thompson on its witness

list but later removed him. Defendant’s theory, repeated on

appeal, is that the government removed Deputy Thompson

from the witness list once it learned that he had not seen a

“snowstorm” and that the government failed to disclose that

17848 UNITED STATES v. BAKER

information, in violation of its Brady obligations. The district

court denied the motion.1

The district court sentenced Defendant to three years’ pro-

bation. Defendant challenged, among other things, two condi-

tions of probation. The first challenged condition permits

suspicionless searches by a probation officer or other law

enforcement officer. The second challenged condition

requires Defendant to submit to DNA collection. The district

court rejected Defendant’s challenges to those conditions and

issued a final judgment that includes the conditions. Defen-

dant timely appeals.

STANDARDS OF REVIEW

“We review de novo challenges to a conviction based on

alleged Brady violations.” United States v. Woodley, 9 F.3d

774, 777 (9th Cir. 1993). “We are divided as to whether the

denial of a motion to dismiss an indictment is reviewed de

novo or for an abuse of discretion.” Id. As in Woodley, “[w]e

need not decide which standard applies here because we

affirm the ruling under either standard.” Id.

We review de novo the district court’s authority to impose

a condition of probation. United States v. Parrott, 992 F.2d

914, 920 (9th Cir. 1993). The government states, correctly,

that “we review conditions of probation for an abuse of dis-

cretion.” United States v. Clark, 918 F.2d 843, 847 (9th Cir.

1990), overruled on other grounds by United States v. Keys,

95 F.3d 874 (9th Cir. 1996) (en banc). But Defendant argues

that the district court exceeded its constitutional authority by

imposing the search condition and exceeded its statutory

1

At the time of the oral motion, the district court expressed skepticism

that there had been a Brady violation and deferred ruling on the motion.

Brady v. Maryland, 373 U.S. 83 (1963). Although the district court never

ruled on the motion expressly, the parties agree that the court’s entry of

judgment constitutes an implicit denial.

UNITED STATES v. BAKER 17849

authority by imposing the DNA condition. Because Defendant

argues that the district court exceeded its legal authority, no

discretion is involved; our review is de novo. Parrott, 992

F.2d at 920; see United States v. Begay, 622 F.3d 1187, 1193

(9th Cir. 2010) (“We review issues pertaining to statutory

interpretation and constitutional law de novo.”), cert. denied,

131 S. Ct. 3026, and 131 S. Ct. 3027 (2011).

DISCUSSION

A. Motion to Dismiss the Indictment

[1] Defendant first argues that the government’s failure to

disclose Deputy Thompson’s statement—that he did not see

a white substance thrown from the vehicle in which Defen-

dant was riding—constitutes a Brady violation. We disagree.

Defendant was given access to the police tapes and the police

reports. Those pieces of evidence, including Deputy Thomp-

son’s police report, nowhere mentioned a “snowstorm” or

objects thrown from Defendant’s vehicle. It was, therefore, a

reasonable inference from the materials disclosed already that

Deputy Thompson had not seen the alleged “snowstorm.” Cf.

United States v. Houston, No. 07-50478, 2011 WL 3319423,

at *4 (9th Cir. Aug. 3, 2011) (holding that there was no “plain

Brady error” for similar governmental conduct involving

proof of a negative). Indeed, Defendant subpoenaed Deputy

Thompson, likely for that very reason. We affirm the district

court’s denial of Defendant’s motion to dismiss and, accord-

ingly, affirm Defendant’s conviction.

B. “Suspicionless Search” Condition of Probation

Defendant challenges the probation condition that permits

a suspicionless search:

The defendant shall submit his person, property,

place of residence, vehicle and personal effects to

search at any time of the day or night, with or with-

17850 UNITED STATES v. BAKER

out a warrant, with or without probable cause, and

with or without reasonable suspicion, by a probation

officer or any federal, state, or local law enforcement

officer. Failure to submit to a search may be grounds

for revocation. The defendant shall warn any resi-

dents that the premises may be subject to search.

Defendant argues that the foregoing condition violates the

Fourth Amendment.

1. Ripeness

The government first argues that, because Defendant has

not been, and may never be, subjected to a suspicionless

search, his challenge to the probation condition is not ripe.

According to the government, if Defendant is subjected to a

suspicionless search and Defendant is harmed, then—but not

until then—Defendant may challenge the condition and the

resulting search. We disagree.

The government’s argument finds support in some of our

cases. For instance, in United States v. Abbouchi, 502 F.3d

850, 859 (9th Cir. 2007), we held, with little analysis, that “it

is premature to decide Abbouchi’s challenge to the require-

ment that he answer truthfully any questions asked of him by

the probation officer. Nothing prevents Abbouchi from raising

a Fifth Amendment issue should it arise.” Similarly, in United

States v. Streich, 560 F.3d 926 (9th Cir.), cert. denied, 130 S.

Ct. 320 (2009), we held that a “claim is not ripe if it involves

contingent future events that may not occur as anticipated, or

indeed may not occur at all.” Id. at 931 (internal quotation

marks omitted). Applying that standard, we held that the

defendant’s feared civil commitment because of the inclusion

of certain information in the presentence report “strikes us as

the classic example of a contingent future event that may not

happen at all.” Id. at 932 (internal quotation marks omitted);

see Sibron v. New York, 392 U.S. 40, 59 (1968) (declining to

entertain a facial challenge to New York’s “stop and frisk”

UNITED STATES v. BAKER 17851

statute because the “constitutional validity of a warrantless

search is pre-eminently the sort of question which can only be

decided in the concrete factual context of the individual

case”); Warshak v. United States, 532 F.3d 521, 528 (6th Cir.

2008) (en banc) (holding that courts “generally review

[Fourth Amendment] challenges in two discrete, post-

enforcement settings: (1) a motion to suppress in a criminal

case or (2) a damages claim under § 1983 or under Bivens

against the officers who conducted the search” (citation trun-

cated)).

But other cases, more directly on point, instruct that Defen-

dant’s claim here is ripe. As an initial matter, we have

addressed the merits of facial challenges to similar conditions

on direct appeal. United States v. Betts, 511 F.3d 872, 876

(9th Cir. 2007); United States v. Dupas, 419 F.3d 916, 922

(9th Cir. 2005). In Dupas, 419 F.3d at 922 n.6, we rejected a

constitutional challenge to a search condition with the caveat

that “[t]here may be circumstances in which a search con-

ducted pursuant to this condition would raise Fourth Amend-

ment concerns, but we need not confront such circumstances

here. We are asked to determine only the facial validity of the

condition . . . .” In other words, we held that some challenges

—those dependent on the factual circumstances of the search

—were not yet ripe, but that a facial challenge—one not

dependent on the factual circumstances—was ripe.

[2] Perhaps more to the point, we explained in United

States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006), that a

“term of supervised release, even if contingent, is part and

parcel of the defendant’s sentence and can be challenged on

direct appeal.” In that case, the court imposed a condition

requiring the defendant “to participate in a sexual offender

treatment program and submit to various tests, including

plethysmograph testing, as a part of that program.” Id. at 556.

“There is nothing in the record indicating that Weber has yet

been ordered to undergo plethysmograph testing and it is not

certain that he will ever be ordered to do so.” Id. “Weber’s

17852 UNITED STATES v. BAKER

refusal to submit to plethysmograph testing once ordered

would place him in violation of the terms of his supervised

release.” Id. But, we held, a “defendant need not refuse to

abide by a condition of supervised release to challenge its

legality on direct appeal from the imposition of sentence.” Id.

Accordingly, the defendant’s claim on direct appeal was ripe.

Id. We found support for the conclusion that facial challenges

to supervised-release conditions are ripe on direct appeal in

two other cases applying the same rule. See id. (discussing

United States v. Williams, 356 F.3d 1045 (9th Cir. 2004), and

United States v. Rodriguez-Rodriguez, 441 F.3d 767 (9th Cir.

2006)).

[3] Here, as in Dupas, we can address Defendant’s facial

challenge to the probation condition because his arguments do

not depend on particular factual circumstances. Additionally,

for purposes of ripeness, Defendant’s challenge to the suspi-

cionless search condition here is indistinguishable from the

defendant’s challenge to the condition of supervised release in

Weber. Just as the defendant’s challenge in Weber was ripe,

Defendant’s challenge here also is ripe.

2. Fourth Amendment Analysis

The government argues that it has a strong interest in pro-

tecting the public and that, as a probationer, Defendant has a

reduced expectation of privacy and an increased risk of recidi-

vism. Accordingly, the government argues, a suspicionless

search condition does not violate the Fourth Amendment.

Defendant counters that, although he has a reduced expecta-

tion of privacy, it is not reduced so much that a warrantless

search, on the basis of no suspicion whatsoever, is reasonable.

Defendant points out that he was convicted of a relatively

minor misdemeanor drug offense and that the government’s

interest in protecting the public is therefore less than, for

instance, the government’s interest in supervising a convicted

violent felon.

UNITED STATES v. BAKER 17853

[4] We are bound by precedent to agree with the govern-

ment. In Samson v. California, 547 U.S. 843, 846 (2006), the

Supreme Court held that a suspicionless search of a parolee

does not violate the Fourth Amendment. Since that case was

decided, we have applied our rule that “there is no constitu-

tional difference between probation and parole for purposes of

the fourth amendment.” Motley v. Parks, 432 F.3d 1072, 1083

n.9 (9th Cir. 2005) (en banc) (internal quotation marks omit-

ted); see Sanchez v. Canales, 574 F.3d 1169, 1174 & n.3 (9th

Cir. 2009) (applying the Motley rule and concluding that “pa-

role and probation conditions are also categorically sufficient

to justify the invasion of privacy entailed by a home search”).

Because a suspicionless search of a parolee does not violate

the Fourth Amendment, Samson, 547 U.S. at 850-56, and

because our precedent dictates that “there is no constitutional

difference between probation and parole for purposes of the

fourth amendment,” Motley, 432 F.3d at 1083 n.9, we must

conclude that a suspicionless search of a probationer does not

violate the Fourth Amendment.

[5] Defendant urges us to disregard our own precedent, but

we may do so only if there is an intervening Supreme Court

or en banc decision that is clearly irreconcilable with our own

precedent. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.

2003) (en banc) (“We hold that . . . , where the reasoning or

theory of our prior circuit authority is clearly irreconcilable

with the reasoning or theory of intervening higher authority,

a three-judge panel should consider itself bound by the later

and controlling authority, and should reject the prior circuit

opinion as having been effectively overruled.” (emphasis

added)). Since we decided Sanchez in 2009, there has been no

such intervening authority. Accordingly, we cannot ignore our

own precedent, and we must reject Defendant’s facial chal-

lenge to the probation condition.

17854 UNITED STATES v. BAKER

C. DNA Condition

Under the heading “Probation,” the final judgment orders

Defendant to “cooperate in the collection of DNA as . . .

directed by the probation officer.” Defendant argues that the

district court lacked statutory authority to impose this condi-

tion and asks that we remand with instructions to order the

expungement of any DNA records collected pursuant to this

erroneous probation condition.2

Title 42 U.S.C. § 14135a, titled “Collection and use of

DNA identification information from certain Federal offend-

ers” states:

(a) Collection of DNA samples

(1) From individuals in custody

(A) The Attorney General may, as prescribed by

the Attorney General in regulation, collect DNA

samples from individuals who are arrested, facing

charges, or convicted or from non-United States per-

sons who are detained under the authority of the

United States. The Attorney General may delegate

this function within the Department of Justice as pro-

vided in section 510 of Title 28, and may also autho-

rize and direct any other agency of the United States

that arrests or detains individuals or supervises indi-

viduals facing charges to carry out any function and

exercise any power of the Attorney General under

this section.

2

We granted rehearing en banc in a case challenging the constitutional-

ity of DNA conditions for persons arrested, but not yet convicted. See

United States v. Pool, 621 F.3d 1213 (9th Cir. 2010) (upholding the con-

stitutionality of the statute), reh’g en banc granted, 646 F.3d 659 (9th Cir.

2011). Because this case involves the question of statutory authority only,

while Pool involves the constitutionality of a related but different statutory

provision, we need not await the en banc panel’s resolution of Pool.

UNITED STATES v. BAKER 17855

(B) The Director of the Bureau of Prisons shall

collect a DNA sample from each individual in the

custody of the Bureau of Prisons who is, or has been,

convicted of a qualifying Federal offense (as deter-

mined under subsection (d) of this section) . . . .

(2) From individuals on release, parole, or pro-

bation

The probation office responsible for the supervi-

sion under Federal law of an individual on probation,

parole, or supervised release shall collect a DNA

sample from each such individual who is, or has

been, convicted of a qualifying Federal offense (as

determined under subsection (d) of this section) . . . .

....

(d) Qualifying Federal offenses

The offenses that shall be treated for purposes of

this section as qualifying Federal offenses are the

following offenses, as determined by the Attorney

General:

(1) Any felony.

(2) Any offense under chapter 109A of Title 18.

(3) Any crime of violence (as that term is defined

in section 16 of Title 18.

(4) Any attempt or conspiracy to commit any of

the offenses in paragraphs (1) through (3).

(All emphases added.)

Defendant begins with § 14135a(a)(2), which requires that

a defendant be convicted of a “qualifying federal offense.”

17856 UNITED STATES v. BAKER

Defendant argues that, because he was not convicted of a

“qualifying federal offense,” the statute does not authorize the

probation condition requiring that he give a DNA sample.

Defendant carefully explains why his misdemeanor posses-

sion conviction does not fall into any of the four categories of

qualifying federal offenses enumerated in § 14135a(d).

The government does not challenge that conclusion. That

is, the government concedes that Defendant’s conviction is

not for a “qualifying federal offense” specified in

§ 14135a(d). Instead, the government begins with

§ 14135a(a)(1). As the government points out, that statutory

provision is much broader and permits the Attorney General,

through regulation, to collect DNA samples from any person

who is “arrested, facing charges, or convicted”—without

qualification. Id. § 14135a(a)(1)(A). The Attorney General

has exercised that authority and promulgated a regulation

directing federal agencies to collect DNA samples “from indi-

viduals who are arrested, facing charges, or convicted,” with

some exceptions not relevant here. 28 C.F.R. § 28.12(b).

According to the government, whether or not subsection

(a)(2) permits the probation condition at issue here is irrele-

vant, because subsection (a)(1) and the implementing regula-

tion permit the condition.

[6] The government is incorrect. The plain text of the

statute—the headings in particular3—demonstrate that subsec-

tion (a)(1) does not apply to Defendant, who is on probation.

Subsection (a)(1) applies to “individuals in custody.” Subsec-

tion (a)(2) applies to “individuals on release, parole, or proba-

tion.” Because Defendant is on probation and not in custody,

subsection (a)(2) applies and subsection (a)(1) does not apply.

We therefore hold that the district court exceeded its statutory

3

See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998)

(“[T]he title of a statute and the heading of a section are tools available

for the resolution of a doubt about the meaning of a statute.” (internal quo-

tation marks omitted)).

UNITED STATES v. BAKER 17857

authority by imposing the DNA condition. Accordingly, we

remand with instructions that the district court strike the pro-

bation condition and, further, order that any DNA collected

from Defendant pursuant to the probation condition be

expunged. See 42 U.S.C. § 14132(d) (providing a procedure

for expungement).4

CONCLUSION

We affirm Defendant’s conviction, and we uphold the

imposition of the suspicionless search condition. But we hold

that the district court exceeded its statutory authority by

imposing the DNA condition. We remand to the district court

for the limited purposes (a) of amending the judgment to

delete the DNA condition and (b) of ordering expungement of

DNA records collected pursuant to the condition.

AFFIRMED in part, REVERSED in part, and

REMANDED with instructions.

GRABER, Circuit Judge, concurring:

I concur fully in the panel’s opinion. I write separately to

state my view that, by oversight, our recent opinions errone-

ously have foreclosed Defendant’s potentially viable Fourth

Amendment argument. Although a three-judge panel cannot

correct that mistake, the en banc court can. Miller v. Gammie,

335 F.3d 889, 893 (9th Cir. 2003) (en banc).

4

In his opening brief, Defendant argued that we should order expunge-

ment. In response, the government argued only that, because the condition

is permissible, expungement is not appropriate. The government does not

argue that, if the condition is impermissible, there are reasons why

expungement is not appropriate. Because we see no reason why the district

court should not order expungement and because the government has not

supplied a reason, we agree with Defendant.

17858 UNITED STATES v. BAKER

Defendant argues that the probation condition authorizing

a suspicionless search violates the Fourth Amendment. The

issue of search conditions has an important jurisprudential

history. Before turning to that history, I note that the differ-

ence between probation and parole is important and, as dis-

cussed below, sometimes overlooked. Probation is a lesser

form of punishment than imprisonment. Parole, which is the

state-law equivalent of federal supervised release, is the early

release of a prisoner subject to certain conditions. Function-

ally, they are very similar, with a violation of one of the con-

ditions often resulting in imprisonment. Constitutionally,

however, a parolee’s expectation of privacy may not be iden-

tical to a probationer’s expectation of privacy, as discussed

below.

The first two relevant Supreme Court cases involved proba-

tioners. In Griffin v. Wisconsin, 483 U.S. 868, 870-71 (1987),

the Supreme Court held that a search of a probationer’s home

without a warrant, but with “reasonable grounds” to believe

the presence of contraband, did not violate the Fourth Amend-

ment. In United States v. Knights, 534 U.S. 112, 119-22

(2001), the Supreme Court held that a search of a probation-

er’s home with reasonable suspicion only (and not probable

cause) did not violate the Fourth Amendment. The Court spe-

cifically noted that “[w]e do not decide whether the probation

condition so diminished, or completely eliminated, Knights’

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. In other words, Knights

left open the very question raised by Defendant here: whether

a suspicionless search of a probationer violates the Fourth

Amendment.

The next Supreme Court case involved a parolee. In Sam-

son v. California, 547 U.S. 843, 846 (2006), the Court

addressed whether a search conducted under a California stat-

ute authorizing suspicionless searches of all parolees violated

UNITED STATES v. BAKER 17859

the Fourth Amendment. Drawing on Knights in particular, the

Court held that the suspicionless search of the parolee’s home

did not violate the Fourth Amendment. Id. at 850-56. In dis-

cussing the privacy interest of the parolee, the Court held:

As we noted in Knights, parolees are on the “contin-

uum” of state-imposed punishments. On this contin-

uum, parolees have fewer expectations of privacy

than probationers, because parole is more akin to

imprisonment than probation is to imprisonment. As

this Court has pointed out, “parole is an established

variation on imprisonment of convicted criminals

. . . . The essence of parole is release from prison,

before the completion of sentence, on the condition

that the prisoner abide by certain rules during the

balance of the sentence.”

Id. at 850 (emphasis added) (citation omitted) (ellipsis in orig-

inal). After an extended discussion, the Court concluded that

“parolees like petitioner have severely diminished expecta-

tions of privacy by virtue of their status alone . . . [such that]

petitioner did not have an expectation of privacy that society

would recognize as legitimate.” Id. at 852.

The Supreme Court has not addressed the question left

open in Knights and raised here: whether a suspicionless

search condition imposed on a probationer violates the Fourth

Amendment. The Court’s statement in Samson—that “paro-

lees have fewer expectations of privacy than probationers,

because parole is more akin to imprisonment than probation

is to imprisonment”—makes clear that, although a suspicion-

less search of a parolee is constitutional, a suspicionless

search of a probationer may not be constitutional.

Our own jurisprudence has overlooked the important dis-

tinction between parolees and probationers. Shortly before the

Supreme Court decided Samson, we decided Motley v. Parks,

432 F.3d 1072 (9th Cir. 2005) (en banc). We explained—

17860 UNITED STATES v. BAKER

correctly at that time—that “[w]e have consistently recog-

nized that there is no constitutional difference between proba-

tion and parole for purposes of the fourth amendment.” Id. at

1083 n.9 (internal quotation marks omitted). As Samson

makes clear, though, that statement is now incorrect.

Unfortunately, we have applied our rule from Motley in

cases decided after Samson. For instance, in United States v.

Lopez, 474 F.3d 1208, 1213 n.5 (9th Cir. 2007), we quoted,

in a footnote, the now-incorrect statement from Motley. In a

different footnote, we also stated, incorrectly, that “Knights

left open the issue decided in Samson: ‘We do not decide

whether the probation condition so diminished, or completely

eliminated, Knights’s reasonable expectation of privacy

. . . .’ ” Id. at 1214 n.6 (emphasis added). Samson decided

whether a suspicionless search of a parolee was permissible

but did not decide whether a suspicionless search of a proba-

tioner was permissible.

More importantly, in Sanchez v. Canales, 574 F.3d 1169,

1174 & n.3 (9th Cir. 2009), we applied the now-erroneous

statement from Motley:

There is no question . . . that parole and probation

conditions are also categorically sufficient to justify

the invasion of privacy entailed by a home search.

See Samson, 547 U.S. at 847 (where a parolee has

agreed to submit to warrantless searches as “a condi-

tion of release,” subsequent warrantless, “suspicion-

less search[es] by a law enforcement officer [do] not

offend the Fourth Amendment”); see also Motley,

432 F.3d 1072 (same).3

Given that police officers may search the home of

a parolee or probationer “without a warrant” and

without “run[ning] afoul of the Fourth Amendment”

so long as “the officers have [probable cause to

believe] that they are at the address where . . . the

UNITED STATES v. BAKER 17861

parolee . . . resides,” Motley, 432 F.3d at 1079, there

is no need to be concerned that a neutral magistrate

had not approved the reasonableness of the compli-

ance search.

________________

3. Although both Samson and Motley were parole

rather than probation cases, we have “consistently

recognized that there is no constitutional difference

between probation and parole for purposes of the

fourth amendment.” Motley, 432 F.3d at 1083 n.9.

(Some internal quotation marks and one citation omitted)

(citation truncated) (alterations in original.) In my view, San-

chez’ holdings are incorrect. Before Sanchez, neither the

Supreme Court nor we held that police officers may search

the home of a probationer without any suspicion.

I express no view on whether a suspicionless search of a

probationer violates the Fourth Amendment. But this court’s

continued reliance on the proposition that there is no differ-

ence between parolees and probationers in this context

directly contravenes the Supreme Court’s clear statements in

Samson and, critically, forecloses our ability to resolve that

significant question on its merits. We should convene en banc

so that we can correct our mistaken continued application of

the Motley rule.