The Price of Pretrial Release: Can We Afford to Keep Our Fourth Amendment Rights?

• Author: Melanie D. Wilson
• Position: Associate Professor, John Marshall Law School, Atlanta
• Pages: 161-211

Associate Professor, John Marshall Law School, Atlanta; former Assistant United States Attorney (1999-2005); J.D., University of Georgia School of Law. I thank Professors Anne Proffitt Dupre, Michael J. Lynch, and Daniel F. Piar for their insightful comments on an early draft of this Article.

Page 161

Introduction

The Fourth Amendment¹ is designed "'to prevent arbitrary and oppressive interference by law enforcement officials with the privacy and personal security of individuals.'"² The Eighth Amendment prohibits the government from imposing excessive bail in cases where it is proper to grant bail.³ This Article looks at the intersection of these two federal constitutional provisions in the context of federal bail determinations and asks whether arrested persons can "choose" to relinquish some or all of their Fourth Amendment rights in exchange for pretrial release from detention and, if so, under what circumstances and with what, if any, limits.

The ability or inability of an arrested person to relinquish some privacy and liberty rights to gain pretrial release is a significant issue because tens of thousands of people are charged with federal crimes every year.⁴ Once charged, each person appears before a federal judicial officer, usually a magistrate judge, for a decision on whether he or she will await trial while enjoying the comforts of home or, instead, be confined in jail until the charges are adjudicated.⁵ Many defendants are detained in jail until trial.⁶

The Bail Reform Act establishes the standard for pretrial release in federal court.⁷ The presiding judicial officer applies the Bail Reform Act to determine whether there are conditions of release that will ensure the arrested person's appearance at trial and protect the safety of thePage 162 community in the meantime.⁸ However, the Bail Reform Act does not address whether defendants can be asked or required to relinquish some of their Fourth Amendment rights as one of the conditions of pretrial release.⁹

Likewise, the United States Supreme Court has not decided whether an arrested person is legally permitted to exchange Fourth Amendment rights for pretrial freedom. In fact, the Court has never resolved whether someone convicted of a crime validly waives his Fourth Amendment rights by "agreeing" to a blanket-search provision as part of his post-conviction release on probation or his post-incarceration supervised release.¹⁰ Although the Court has not settled either of these issues, it has, in other contexts, made relevant observations about a criminal defendant's relinquishment of one right to save another.¹¹ For instance, in the context of reviewing a habeas petition in which an inmate claimed that he was put to an "impermissible choice" between exercising his right to appeal a criminal conviction and risking a potentially harsher sentence if he prevailed on such an appeal, the Supreme Court declared:

"The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow. . . . Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." . . . [T]he "threshold question is whetherPage 163 compelling the election impairs to an appreciable extent any of the policies behind the rights involved."¹²

While the Court has never excused criminal defendants from making tough choices, more than three decades ago it recognized that the government's power is not unlimited when it "needlessly chill[s] the exercise of basic constitutional rights."¹³ In some circumstances, the Court has deemed it "intolerable that one constitutional right should have to be surrendered in order to assert another."¹⁴ A recent decision from the Ninth Circuit reiterates the concept that the government's power is not boundless when it asks a criminal defendant to give up one constitutional right in favor of another.¹⁵ In an issue of first impression in the federal courts of appeal, aPage 164 divided panel of the Ninth Circuit concluded that an arrested person does not necessarily waive his Fourth Amendment rights even when he executes a rights waiver as a means of negotiating his pretrial release.¹⁶

In contrast to the conclusion reached by the Ninth Circuit, this Article contends that with appropriate judicial oversight, an arrestee can appropriately and effectively waive some Fourth Amendment rights as collateral for his liberty. This Article acknowledges that if a defendant is permitted to bargain with his Fourth Amendment rights, an undeniable tension results. The tension naturally creates a pressure-filled situation that will almost always end with the subordination of Fourth Amendment rights. But, the choice is the accused's to make. Only the accused can fully evaluate the importance of his Fourth Amendment rights and decide whether or not to relinquish such rights to gain pretrial liberty. The Article maintains that although the choice is always the defendant's, the key to judging whether a particular defendant's waiver is knowing and voluntary rests with the limits to such a waiver. A Fourth Amendment waiver must not be an unbridled, whole-sale waiver of all constitutional and statutory rights. It must be sufficiently tailored to further the reasonable law-enforcement goals for imposing the waiver.

Various constitutional provisions will serve to limit the extent to which the government can extract a Fourth Amendment waiver from a criminal defendant. For instance, the Eighth Amendment proscribes excessive bail.¹⁷ Thus, bail set at a figure higher than an amount reasonably calculated to assure the presence of an accused at trial, or for an amount more than necessary to protect the public pending trial, is excessive within the meaning of the Eighth Amendment.¹⁸ Similarly, the Fourth Amendment, which requires that all searches and seizures be "reasonable,"¹⁹ will prohibit an unreasonable search of an arrested person during the pretrial period, evenPage 165 if the person has "consented" to such a search or has "waived" the usual probable-cause requirement.

In short, the answer to whether an arrested person can validly and effectively waive (at least some of) his Fourth Amendment rights in exchange for freedom from pretrial detention is not a simple yes or no. Instead, the solution hinges on the now familiar "'totality of the circumstances'" test.²⁰ That test will require the magistrate judge²¹ to consider all of the relevant facts and circumstances known about the defendant, the crime alleged, and the defendant's background, and decide whether the pressure on the accused to waive her Fourth Amendment rights is so great that it results in an "impermissible burden upon the exercise of a constitutional right"²² or whether, in contrast, the accused's decision is a "knowing, intelligent act[] done with sufficient awareness of the relevant circumstances and likely consequences."²³ Under some circumstances, a pretrial waiver is valid, and under other more coercive conditions, it is not.

This Article develops in three parts. Part I looks at pretrial detention and pretrial release conditioned on a waiver of Fourth Amendment rights. It begins with an overview of the Bail Reform Act and explores the recent decision from the Ninth Circuit, United States v. Scott, which held that an arrested person does not waive all of the privacy protections afforded by the Fourth Amendment, even when he signs a written Fourth Amendment waiver of rights to gain pretrial release.²⁴ The Ninth Circuit's decision in Scott is discussed as a tool for analyzing whether the government violates the Constitution or illegally coerces an arrested person when it asks an arrestee to choose between liberty, with limited Fourth Amendment privacy, and incarceration. Part I also briefly reviews the Supreme Court precedent that nibbles at the fringes of the pretrial Fourth Amendment consent issue and reviews other circuit court decisions that have decided analogous, but not identical, issues regarding post-conviction Fourth Amendment waivers.

Part II considers the tension created when an arrested person is asked to choose between sacrificing the privacy rights he normally enjoys underPage 166 the Fourth Amendment and forgoing an opportunity to avoid indefinite pretrial detention with even fewer rights. Part II identifies the policies for and against allowing a pretrial waiver in exchange for release on conditions, examines the proper legal standard by which a magistrate judge should evaluate such a waiver, and concludes that...