Case o' The Week: Off Scott Free -- The Fourth Amendment and Pretrial Release

Judge Kozinski (left) authors a great decision rejecting Fourth Amendment waivers coerced from pre-trial releasees. See United States v. Scott, __ F.3d __, 2005 WL 2174413 (9th Cir. Sept. 9, 2005), available here.

Players: Judges Kozinski and Willie Fletcher, Bybee dissenting. Another superb appeal out of the Reno Federal Public Defender; Michael Powell and Cynthia Hahn get the win.

Facts: Scott was arrested for drug possession crimes and released in the state system. Id. at *1. Conditions of release included random drug testing anytime of the day or night by any peace officer without a warrant, and to having his home searched for drugs by any peace officer anytime, day or night, without a warrant. Id. A tip lead officers to go to Scott’s home and test him for meth; while in the home, they found a shotgun for which Scott was charged federally.

Issue(s): "We consider whether police may conduct a search based on less than probable cause of an individual released while awaiting trial." Id. at *1.

Held: No. 1. Can’t Condition Release on Consent: The government cannot coerce consent to warrantless searches as a condition of pretrial release, so consent does not save the search. "Giving the government free rein to grand conditional benefits creates the risk that the government will abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding constitutional protections." Id. at *1.

2. No Special Needs: There are not sufficient "programmatic" interests here to make this a "special needs" search, justified by the special societal requirements for searches of pre-trial releasees. Id. at *5. Unlike probationers, pre-trial releasees are presumed innocent, and no claimed special need justifies a search of their homes. Id. at *6.

Of Note: This is an extremely well-written and well-reasoned opinion, and is worth reading just for its thorough background on Fourth Amendment law and the "special needs" doctrine. "Special needs" is the new darling of the Fourth Amendment scholars; we all feared it would be a much bigger aspect of the Knights probation-search decision. See id. at *7-*8 (discussing Knights).

Because it addresses a completely novel issue of federal law, and because it is so enmeshed with the special needs analysis, will Scott get the bump to the Supreme Court? What luck the Supreme Court’s favorite, Judge Kozinski, wrote the persuasive decision: maybe that’ll stave off a cert. petition.

How to Use: Take a deep breath, then refuse to consent to warrantless drug tests or warrantless searches as a condition of release. Or – more diplomatically – agree to those conditions, then fight revocation under Scott when a drug test or search leads to problems. "The ‘unconstitutional conditions doctrine,’ . . . limits the government’s ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary." Id. at *1 (internal quotations and citation omitted). "The right to keep someone in jail does not in any way imply the right to release that person subject to unconstitutional conditions . . . ." Id. at 1 n.6.

Needless to say, any pretrial releasee facing new substantive charges after a warrantless search has a suppression motion brewing – (absent other exigent circumstances justifying the search).

For Further Reading: The "special needs" doctrine is going to get much more attention after Scott. For a very accessible summary of the evolution (or devolution) of the theory, see the Slate piece entitled, "Urine Trouble: Uncle Sam Wants You to Pee in a Cup," available here.

Incidently, the Earl decision that this article describes held that there was a "special need" to have high school athletes and band members pee in a cup. Here’s one notable Earl quote: "Urination is an excretory function traditionally shielded by great privacy . . . But the degree of intrusion on one’s privacy caused by collecting a urine sample depends upon the manner in which production of the urine sample is monitored." Board of Education v. Earls, 536 U.S. 822, 832 (2002).


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org.