Metropolitan News-Enterprise


Monday, September 12, 2005


Page 1


Drug Testing of Pretrial Releasee Unconstitutional, Panel Says

Ninth Circuit, in 2-1 Decision, Sides With Defendant in First Federal Appellate Ruling on Practice


By KENNETH OFGANG, Staff Writer/Appellate Courts


Police violated a defendant’s Fourth Amendment rights by subjecting him to a drug test at his home, without warrant or probable cause, based on his having consented to such testing as a condition of pretrial release, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In what he said was the first federal appeals court ruling on the issue anywhere in the nation, Judge Alex Kozinski said that pretrial releasees, unlike parolees and probationers, cannot be compelled to give up their freedom from unreasonable search in order to avoid incarceration.

“It may be tempting to say that such transactionsówhere a citizen waives certain rights in exchange for a valuable benefit the government is under no duty to grantóare always permissible and, indeed, should be encouraged as contributing to social welfare,” Konzinski wrote for a divided panel.

“After all, Scott’s options were only expanded when he was given the choice to waive his Fourth Amendment rights or stay in jail,” the judge continued. “But our constitutional law has not adopted this philosophy wholesale,” he noted, citing a Supreme Court ruling barring a city from conditioning the grant of a zoning variance on the property owner’s dedication of a portion of the land to an unrelated public purpose.

District Judge Affirmed

The ruling upholds U.S. District Judge David W. Hagen’s order suppressing the evidence used to charge Raymond Lee Scott with possession of an unregistered shotgun in the U.S. District Court for the District of Nevada.

Scott, who was facing state drug possession charges, was released on his own recognizance by the state court, subject to certain conditions. One was that he consent to “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...without a warrant.”

Police, based on an informant’s tip, searched the house and administered a urine test. When the test came up positive for methamphetamine, he was arrested, and a search pursuant to the arrest produced a shotgun.

In suppressing the gun and the statements made by Scott to the officers as the products of an illegal search, Hagen reasoned that probable cause was required. The government took an interlocutory appeal.

In concluding that the trial judge was correct, Kozinski rejected prosecutors’ arguments that the “special needs” exception to the warrant requirement applied.

While the government argued that the pretrial testing order served the public’s needs for protection from defendants awaiting trial and for assurance that defendants will appear in court, Kozinski said there was no showing that those asserted needs were strong enough to outweigh the interest of a pretrial releasee in privacy.

No ‘Special Needs’

The generalized need for public protection, the judge explained, is insufficient because the special-needs doctrine requires a showing of something more than the ordinary necessity to enforce the law. Kozinski further concluded that while there may be a relationship between drug testing and appearance in court, it is not strong enough to outweigh the defendant’s privacy interest, particularly with regard to testing at the defendant’s home, where the expectation of solitude is heightened.

Judge William Fletcher concurred in the opinion, while Judge Jay S. Bybee dissented.

“...I would resolve this case by specifically examining the facts and circumstances applicable to Scott’s pre-trial release, then weighing the legitimate interests of the state against the individual privacy interests at stake,” the dissenting jurist wrote. “Under this approach—a familiar approach employed for warrantless searches of probationers, parolees, and presentence releasees—I do not believe that probable cause was necessary to search Scott’s person for drugs.”

Bybee argued that there is no “constitutionally relevant” distinction between a pretrial releasee and a probationer, and that the totality of the circumstances surrounding Scott’s’ release—including the facts that Scott willingly signed the consent form, that he  invited the officers inside when they arrived at his home, that a field test showed that he was using methamphetamine, the same substance he was charged with possessing in the underlying case, and that police then arrested him and found a holster containing his gun on his television set—rendered the search reasonable.

The case is United States v. Scott, 04-10090.


Copyright 2005, Metropolitan News Company