Unconstitutional conditional release: a pyrrhic victory for arrestees' privacy rights under United States v. Scott.

AuthorSmith, Andrew J.

INTRODUCTION

In United States v. Scott, the Ninth Circuit held that the common criminal procedure practice of conditioning pretrial release on the arrestee's consent to warrantless searches was an unconstitutional violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. (1) Some observers quickly heralded the decision as a "victory for the privacy rights of defendants awaiting trial while on their own recognizance" (2) and praised Judge Kozinski's majority opinion as "extremely well-written and well-reasoned." (3) The dissent cautioned, however, that the majority's conclusion "is contrary to history, practice and commonsense; it carries monumental implications for the pretrial procedures employed by every state in our circuit, as well as the United States." (4) The Harvard Law Review echoed these concerns by noting that "while the court's holding purported to protect privacy and liberty interests 'by preventing governmental end-runs around the barriers to direct commands,' its reasoning threatens that aim." (5) The most obvious implication of the Ninth Circuit's decision will be that arrestees in Nevada will no longer be forced to make a Hobson's choice between pretrial confinement on the one hand and pretrial release with the condition of warrantless searches on the other. This seemingly progressive decision may lead to the incongruous result that arrestees' "Fourth Amendment rights will be secure while they rest in the county jail" as courts will simply eliminate the conditional release option for those charged with drug offenses. (6)

The facts of the case are typical of the modern pretrial approach to drug arrests in both the federal and state levels. (7) Raymond Scott was arrested in Douglas County, Nevada, for possession of methamphetamine and drug paraphernalia. (8) He was released two days later on his own recognizance (OR) after he consented to the conditions of random drug testing and warrantless searches of his home. (9) Douglas Swalm, an officer of the Department of Alternative Sentencing, received an anonymous tip that Scott had a handgun, a sawed-off shotgun, and drug paraphernalia in violation of his conditional release. (10) Swalm, accompanied by other law enforcement personnel, went to Scott's home to conduct a compliance visit. (11) Scott provided a urine sample that tested positive for methamphetamine, use of which was a violation of his OR release. (12) The officers then searched Scott's home for weapons and discovered a sawed-off shotgun, another violation of his OR release. (13) Scott was subsequently charged with several firearm violations in district court, but the judge granted Scott's motion to suppress all the evidence of the violations, holding that the predicate search required probable cause in order to be legitimate. (14) The government appealed the decision to the Ninth Circuit Court of Appeals, and that court upheld the district court's decision. (15)

Part I of this Note provides the historical backdrop for the Scott decision, including a brief outline of the emergence of the modern pretrial system. Part II provides a comprehensive survey of the few state and federal cases that have dealt with pretrial release conditioned on consent to warrantless searches and random drug testing. Part III closely examines the Ninth Circuit's rationale in Scott and challenges Scott's legal underpinnings. Part III.A examines the Ninth Circuit's analysis of the consent exception and concludes that the Ninth Circuit misapplied the unconstitutional conditions doctrine. Part III.B briefly examines the special needs exception to the Fourth Amendment and argues that the Ninth Circuit mischaracterized the status of pretrial arrestees by claiming that they are equivalent to free citizens and have identical privacy expectations. This Note argues that the correct understanding of pretrial arrestees' status is that they are in the "quasi-custody" of the state. "Quasi-custody" most accurately reflects a pretrial arrestee's diminished privacy expectation and would allow the state to conduct limited warrantless searches based on reasonable suspicion under the special needs exception. (16) Finally, Part III.C examines the totality of the circumstances test in light of recent Supreme Court decisions and argues that under the new Court guidance, the reasonableness balancing test tips in favor of the government's ability to condition OR release on consent to warrantless searches.

  1. BACKGROUND

    1. Evolution of the American Pretrial System

      In the American pretrial release system, pretrial detention and bail (17) were historically the only two options afforded to criminal defendants. (18) This traditional system was heavily criticized for being inherently inequitable and discriminatory. (19) The constitutional safeguard against excessive bail, found in the Eighth Amendment, (20) through time became a hollow right because courts often deliberately set bail above defendants' means in order to detain them until trial. (21) In 1966, the Bail Reform Act overhauled the traditional pretrial system. (22) The 1966 Act, in response to mounting criticism that the bail system was simply "de facto pretrial detention through the imposition of insurmountable secured bond requirements," made "own recognizance," or "OR," release the primary pretrial option for all noncapital cases. (23) The pertinent part of the 1966 Bail Reform Act provided:

      Any person charged with an offense, other than an offense punishable by death, shall, at his appearance before a judicial officer, be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer, unless the officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required. (24) The Act was a progressive step forward, but it largely ignored the perceived social epidemic of criminal activity by those released from custody while awaiting trial. (25)

      The Bail Reform Act of 1984 responded to the increasingly "alarming problem of crimes committed by persons on release" and "the need to consider community safety in setting nonfinancial pretrial conditions of release." (26) Both President Ronald Reagan and Chief Justice Warren Burger urged Congress to amend the 1966 Bail Reform Act to address the problem of crimes committed by those on pretrial release. (27) In [section] 3142(b) of the amended statute, Congress explicitly embraced the notion that pretrial detention could be based on judicial concern that the defendant's release could jeopardize public safety. (28) Congress's decision to allow the defendant's potential danger to the community to be a factor in release decisions "mark[ed] a significant departure from the basic philosophy" of the 1966 Bail Reform Act, which was solely designed "to assure the appearance of the defendant at judicial proceedings." (29) Congress opted to give more discretion to judges to make more appropriate pretrial release determinations by granting judges the right to weigh the defendant's dangerousness to the community against the defendant's liberty interests. (30) The legality of denying pretrial release based solely on the defendant's perceived dangerousness to the community was upheld by the Supreme Court in United States v. Salerno. (31)

      Another section of the 1984 Bail Reform Act, codified at 18 U.S.C. [section] 3142(c), allows courts to impose conditions on a defendant when granting pretrial release, and it is Nevada's version of this section that was at issue in Scott. (32) Particularly, [section] 3142(c)(1)(B)(xiv) provides for a "catch-all provision" (33) that allows judges to impose "any other condition that is reasonably necessary to assure the appearance of the person as required and ... the safety of any other person and the community." (34) Section 3142(c)(1)(B)(ix) allows release to be conditioned on the defendant's consent to "refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance." (35) The 1984 Bail Reform Act was drafted at a time when the federal government had just begun to wage the so-called war on drugs, so it is not surprising that illegal drugs are twice mentioned as a factor for the court to consider in pretrial release decisions. (36)

      In response to the growing drug crisis, courts have increasingly used the catch-all provision in [section] 3142(c)(1)(B)(ix), or the state law equivalent, to demand that a defendant consent to random drug tests and warrantless searches to ensure compliance with the pretrial condition of refraining from drug use. (37) Courts have viewed this option as a viable solution to growing concerns about jail overcrowding in general and the rise of drug-related arrests in particular. (38) The goal of this pretrial procedure mirrored the goal of the 1984 Bail Reform Act in that it aimed to closely monitor those charged with drug offenses to reduce the possibility of renewed drug-related crime pending trial. (39) The program offered courts the ability to avoid the harshness of pretrial detention while still maintaining some level of control over the arrestee that would not be possible in an unsupervised release situation. (40)

    2. Pretrial Services Systems

      Jurisdictions began creating pretrial services systems in the late 1960s to fill the "legislative 'gap" that the 1966 Bail Reform Act created by demanding that judicial officers make individualized determinations when deciding whether to release a defendant. (41) The federal government first began experimenting with pretrial services systems in 1974 by establishing ten demonstration agencies. (42) Responding to the success of these demonstrations, Congress passed the Federal Pretrial Services Act of 198243 to establish a federal pretrial services agency. (44) The mission of the U.S. Probation and Pretrial...

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