concurring, dubitante:
“In sum, we hold that before conducting a warrantless search pursuant to a parolee’s parole condition, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir.2005) (en banc). Applying this standard with the help of five cases where we found probable cause “but just barely,” the majority concludes that probable cause was lacking here. I cannot deny the controlling standard set by Motley and the pattern of what constitutes probable cause are not unreasonably presented. Bound by circuit precedent, I cannot suppress a doubt that circuit precedent conforms with the constitution as interpreted by the United States Supreme Court.
As recently as 2000, this circuit distinguished between “probationary searches” and “investigative searches” directed at uncovering evidence of criminal activity by a felon on probation. In United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), this distinction was held to be without foundation. Id. at 122, 122 S.Ct. 587. The Supreme Court analyzed the search of the probationer’s premises in terms of what was reasonable, assessing “reasonable,” on the one hand, in the degree a search intruded on a probationer’s privacy and, on the other hand, in the degree a search was needed to promote legitimate governmental interests. Id. at 118-19,122 S.Ct. 587.
As far as the individual was concerned, the Supreme Court noted that a probationer was a person undergoing punishment. A probationer did not enjoy “some freedoms enjoyed by law-abiding citizens.” Id. at 119, 122 S.Ct. 587. The condition set on probation as to search “significantly diminished Knights’ reasonable expectation of privacy.” Id. at 120, 122 S.Ct. 587.
As to the government’s interest, it is “the very assumption of the institution of probation” that a probationer is more likely than an ordinary citizen to violate the *1269law. Id. at 120, 122 S.Ct. 587 (quotation omitted). And that assumption is borne out by the discouraging statistics on the criminal acts of probationers. Id. Along with the consequent need for greater governmental vigilance goes the incentive that a probationer has to go to greater lengths to conceal his new criminal activity, which, if detected, will send him back to prison in a summary proceeding. Id.
It does not seem to me that the majority’s conclusion here takes into account either Howard’s diminished expectation of privacy or the government’s interest in keeping him from possession of a firearm. In effect, Howard is given a safe house where, as long as he has a cooperative girlfriend, he can stash his gun. That safety zone is surely not what the majority wants to create but it is the result of the rigid application of our precedents without attention to the perspectives on reasonableness introduced by Knights.
My doubt is doubled by the teaching that “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Application of this insight in Katz enlarged the scope of the protection. Application here contracts it: a probationer gets less protection than the innocent homeowner. The contraction is not a problem. Application of axioms across the board sometimes help, sometimes hurt particular parties. That the Fourth Amendment should not offer special sanctuary to felons serving part of their sentence is an outcome not to be regretted.