CA9: Officers have to know of probation search waiver before the search to rely on it

The search of defendant’s car under a probation search condition was unreasonable but harmless error. The officers didn’t know of the waiver before the search. United States v. Job, 851 F.3d 889 (9th Cir. March 14, 2017), amended on rehearing and rehearing denied, 2017 U.S. App. LEXIS 15873 (9th Cir. Aug. 21, 2017) (reaching same result). Summary by the court:

The panel held that the district court erred by applying the holding in United States v. King, 736 F.3d 805 (9th Cir. 2013) — that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon’s probation agreement, does not violate the Fourth Amendment — to this case. The panel explained that a Fourth Amendment search waiver cannot provide a justification for a search of a probationer where the officers were unaware of the waiver before they undertook the search, and noted that the district court failed to recognize that the King decision was limited to individuals on probation for violent felonies.

The panel rejected the government’s arguments that the search of the defendant’s person was justified as a valid Terry stop and frisk, or as a valid protective sweep. The panel rejected the government’s arguments that the search of the defendant’s car was justified by the automobile exception to the warrant requirement, or by the officers’ discovery of the Fourth Amendment search waiver where the government did not prove by a preponderance of the evidence that the officers knew about the search waiver before searching the car. The panel held that the search of the defendant’s home was conducted pursuant to a valid search warrant.

The panel concluded that the district court’s failure to suppress the unlawfully seized evidence was harmless as to the conspiracy conviction, but could not conclude beyond a reasonable doubt that the evidence did not contribute to the jury’s verdict on the possession-with-intent-to-distribute count.