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.