Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. 3:09-cr-00966-CRB-2
The opinion of the court was delivered by: Graber, Circuit Judge
Argued and Submitted July 14, 2011-San Francisco, California
Before: Barry G. Silverman and Susan P. Graber, Circuit Judges, and Barbara M. G. Lynn, District Judge.*fn1
Opinion by Judge Graber; Concurrence by Judge Graber
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 permitting 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 condition, 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 discovered 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 methamphetamine 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 methamphetamine 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 officers 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 created a "snowstorm" effect for a period of three to five seconds. 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 government's case, including the fact that, during the chase, neither of the testifying officers had relayed the occurrence of a "snowstorm" to police dispatch. Most relevant here, Defendant also called as his sole witness Deputy Michael Thompson. 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 Defendant's vehicle.
Defendant moved to dismiss the indictment in its entirety because of an allegedly egregious violation by the government 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 information, in violation of its Brady obligations. The district court denied the motion.*fn2
The district court sentenced Defendant to three years' probation. Defendant challenged, among other things, two conditions 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. Defendant timely appeals.
"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 discretion." 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 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).
A. Motion to Dismiss the Indictment
 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 Defendant 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 Thompson'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 ...