King was on probation at the time of his arrest and had waived his Fourth Amendment rights as a condition of probation. The Supreme Court had previously ruled warrantless searches and seizures of probationers did not violate the Fourth Amendment; Knights v. U.S., 534 U.S.112 (2001).  King’s motion to suppress evidence seized at his home at the time of his arrest was denied in district court. Affirmed on appeal. U.S. v. King, 672 F.3d 1133 (9th Cir. 2012 ).

In a curious per curiam en banc opinion joined by the entire panel, the 9th Circuit vacated its decision in King and simultaneously overruled numerous of its previous opinions on the issue of searches and seizures of parolees and probationers. According to the per curiam panel in King, the Supreme Court in Samson v. California, 547 U.S. 843 (2006), decided 6 years ago, requires overruling 9th Circuit precedent on probation searches.     

Here is the rationale: “[T]hese [overruled] cases conflict with the Supreme Court’s holding [in Samson] that  ‘parolees have fewer expectations of privacy than probationers’.”  According to the per curiam panel, their previous cases drew no constitutional distinction between probationers and parolees for purposes of Fourth Amendment analysis. But now, on rehearing King en banc,  Samson translates into giving probationers more privacy than parolees.  After 6 years of purported mistakes, the 9th Circuit in warrantless probation searches will now entertain motions to suppress evidence in Fourth Amendment cases under the rubric of “reasonable suspicion,” a requirement ostensibly attributable to Samson and inapplicable to parolees.

This sophstry is unprecedented.  The Supreme Court initially reversed the 9th Circuit Samson decision which had invalidated California law mandating parolees to surrender Fourth Amendment rights as a condition of parole. The Supreme Court case has been the law for 6 years. Now, in 2012, the 9th Circuit in King translates this parsed sentence in Samson to permit challenges to searches of probationers who have also waived Fourth Amendment rules as a condition of probation.

 Who uncovered this sophistic interpretation?  And why does the entire panel support this change?  The court (2-1) in King extensively summarized the facts and concluded the information given to police did not warrant either a finding of probable cause or “reasonable suspicion” to arrest King but held that finding is irrelevant under its interpretation because King had waived his Fourth Amendment rights.  

Why did the majority of the panel in King endlessly summarize the evidence in such detail, and find no “reasonable suspicion” to arrest King when the probation condition could have resolved the case in one sentence under formerly held 9th Circuit interpretation  (the original King did not cite Samson).  In fact, the dissenting judge agreed with the result that King had waived his rights but extensively disagreed with the finding of no “reasonable suspicion.”  

The answer lies in the Knights language of the Supreme Court in reversing a 9th Circuit panel who in its decision had required searches of probationers only with a warrant or probable cause. Said the Supreme Court in Knights: “The State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community. The view of the Ninth Circuit Court of Appeals in this case would require the State to shut its eyes to the latter concern and concentrate only on the former.” The Supreme Court required only “reasonable suspicion” to arrest and search a suspect on probation who had waived his Fourth Amendment rights. 

The King decision is highly questionable. The per curiam decision appears sua sponte, unsubmitted by counsel, and, in a footnote, “suitable for decision without oral argument.” Now the case is remanded under the “new test” of privacy for probationers. Since the majority panelists found no “reasonable suspicion” for King’s arrest, they will now determine some lesser test for probationers.  Or grant a motion to dismiss. Give me Cert.  

If the 9th Circuit wants to review all its other cases wrongfully decided, start with the death penalty.  This circuit has reversed all death penalty cases except 3 since 2001. And the Supreme Court has reversed every one of those cases on grounds the 9th Circuit court misinterpreted AEDPA-just like the 9th Circuit misinterpreted King.