Vol. 12, No. 34
Covering Cases Published in the Advance Sheets through Aug. 22, 2005

The (Disappearing??) Fourth Amendment

Sentencing

The BOP's "No Business" Rule


Booker Box Score
Past Weeks' New Decisions -  102 Total Since Jan. 12, 2005 -  3805

 

U.S. v. Scott, No. 04-10090 (9th Cir. 09/09/05) (Judge Kozinski)

This case addresses an issue that the Supreme Court has so far declined at decide - namely, the validity of a blanket waiver of Fourth Amendment rights as a condition of release from prison. In U.S. v. Knights, 534 U.S. 112 (2001), the Supreme Court held that the police need only “reasonable suspicion” - not probable cause - to search the home of a person on probation who has “agreed” as part of his probation order to submit to searches of his home at any time. In so ruling, the Court relied on the need to “protect[] society from future criminal violations,” and for that reason it concluded that probationers have a reduced expectation of privacy.

However, in Knights, the Supreme Court specifically declined to decide whether the waiver alone could justify the search, stating: “We do not decide whether the probation condition so diminished, or completely eliminated, Knights's reasonable expectation of privacy (or constituted consent, see supra, at 6) that a search by a law enforcement officer without any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment.” (Knights, id., at 120, n.6).

Raymond Scott, was arrested for possession of methamphetamine under Nevada state law; and he was released on his own recognizance pending trial. As a condition of his release, he was required to 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[,] day or night[,] without a warrant."

Based on an informant’s tip (which the Government conceded did not establish probable cause), state police officers went to Scott’s house and administered a urine test. When Scott tested positive* for methamphetamine, he was arrested and the officers searched his house. The search turned up a shotgun; and Scott was ultimately indicted by a Federal grand jury for unlawfully possessing an unregistered gun.

[*As a matter of interest, Scott disputed the results of the field test and a subsequent test using the “enzyme multiplied immunoassay” technique. Accordingly, the state tested the same sample using the “gas chromatography/mass spectrometry method” (which the Court said is “considered to be more accurate”), and that test came back negative (which the Court said supported Scott’s contention that the initial positive results were due to Scott’s allergy medication).]

The district court (Judge Hagen of the D.Nev.) granted Scott’s motion to suppress the shotgun, reasoning that the police needed probable cause to justify the warrantless search. The Government then brought this interlocutory appeal.

The basic question before the Court was “whether the police may conduct a search based on less than probable cause of an individual released while awaiting trial” (an issue, which Judge Bybee noted in dissent, was an issue of first impression not only in the Ninth Circuit but in any Federal court).

In response to the Government’s contention that Scott’s written blanket consent to search his house gave the police all they authority they needed to justify the search, the majority explained that the basic underlying question in this case was “whether the government can induce Scott to waive his Fourth Amendment rights by conditioning [his] pretrial release on such a waiver.”

Writing for the majority, Judge Kozinski emphatically concluded that the Government cannot condition a pretrial detainee’s release on such an obligatory consent. Emphasizing that the Government’s power to condition benefits on the waiver of Fourth Amendment rights “is not unlimited,” and that “pre-trial releasees are ordinary people who have been accused of a crime but are presumed innocent,” he wrote:

“Many pre-trial detainees willingly consent to such conditions, preferring to give up some rights in order to sleep in their own beds while awaiting trial. It may be tempting to say that such transactions – where a citizen waives certain rights in exchange for a valuable benefit the government is under no duty to grant - are always permissible and, indeed, should be encouraged as contributing to social welfare. . . . But our constitutional law has not adopted this philosophy wholesale.

“The ‘unconstitutional conditions’ doctrine, cf. Dolan v. City of Tigard, 512 U.S. 374, 385, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994), limits the government's ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary. Government is a monopoly provider of countless services, notably law enforcement, and we live in an age when government influence and control are pervasive in many aspects of our daily lives. Giving the government free rein to grant conditional benefits creates the risk that the government will abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding constitutional protections. Where a constitutional right ‘functions to preserve spheres of autonomy . . . unconstitutional conditions doctrine protects that [sphere] by preventing governmental end-runs around the barriers to direct commands.’ Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1492 (1989); see generally id. at 1489-1505; Richard A. Epstein, The Supreme Court, 1987 Term--Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 5, 21-25 (1988).”

Judge Kozinski punctuated his conclusions with this pithy observation: “The right to keep someone in jail does not in any way imply the right to release that person subject to unconstitutional conditions – such as chopping off a finger or giving up one's first-born.”

Because Scott’s consent was not valid, Judge Kozinski next turned to the issue of whether the search was reasonable. He wrote that “usually . . . means that a search or seizure must be supported by probable cause.” However, he did acknowledge that the probable cause standard may be overcome “when ‘special needs, beyond the normal need for law enforcement,’ make an insistence on the otherwise applicable level of suspicion ‘impracticable’.”

The Ninth Circuit has previously observed that “[l]iterally hundreds of thousands of suspicion-free, conviction-free citizens of our nation have been made subject to limited ‘special needs’ searches because of a demonstrable need transcending the boundaries of normal law enforcement. (U.S. v. Crawford, 372 F.3d 1048, 1072 (9th Cir, 2004) (en banc)).

Despite such wide judicial acceptance of such “special needs” exceptions, Judge Kozinski gave a more cautious and restrained view of that doctrine. After a detailed and informative analysis of the history and development of the “special needs” doctrine, he concluded that there were not sufficiently compelling public needs to support searches of pre-trial releasees as the Government argued in this case. He concluded that there were “conceivable justifications” to support the Government’s “special needs” arguments but, he continued “they strike us as highly unlikely. . . . The Supreme Court has criticized assertions of special needs based on ‘hypothetical’ hazards that are unsupported by ‘any indication of a concrete danger demanding departure from the Fourth Amendment's main rule’."

Judge Bybee, a recent appointee of President Bush, dissented - mostly on the grounds that the majority’s ruling “carries monumental implications for pretrial procedures employed by every state in our Circuit, as well as the United States.” The last time we checked, the prevailing practices of the courts were not carved out as an exception to the Fourth Amendment.

All in all, Judge Kozinski’s opinion is a refreshing and powerful exposition of the proposition that not all contracts of adhesion demanded by the Government are automatically and necessarily enforceable - a doctrine that Judge Kozinski aptly noted “is especially important in the Fourth Amendment context.”


U.S. v. Harju, No. 05-CR-97 (E.D.Wisc. 08/21/05) (Judge Adelman)

In the minds of the Framers of our Constitution, one of the principal purposes of the Fourth Amendment was to preclude "the petty tyranny of unregulated rummagers." (Amsterdam, “Perspectives on the Fourth Amendment,” (1974) 58 Minn. L.R. 349, 411). Sadly, for far too many judges, that noble purpose is no longer relevant; and the Fourth Amendment has been remolded by an ever-growing series of exceptions, by the events of our time (such as our wars against drugs and terrorism), and by the ever-expanding demands of Government officials. Permitting those constant inroads to our Fourth Amendment protections unquestionably has long-term, deleterious effects on our way of life. As Justice Jackson once noted:

“These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.” Brinegar v. U.S., 413 U.S. 266, 180-81 (1973) (Jackson, dissenting).

The instant decision is a refreshing throwback to the days of yore when the courts zealously guarded the Fourth Amendment by insisting that the Government show probable cause before obtaining a search warrant. In this case, on January 21, 2005, a police officer obtained a search warrant after telling the magistrate judge that a confidential informant ("CI") had informed him that a relative of the CI had observed defendant with a firearm at his residence on the preceding New Year's Eve or New Year's Day. The officer did not indicate when the relative provided the information to the CI, or when the CI provided it to him, or why the police officer waited three weeks to seek a search warrant.

During the ensuing search of the defendant’s home, a gun was discovered; and the defendant was promptly charged with possession of a gun by a felon. The defendant moved to suppress the evidence obtained from the search on the grounds that the search violated his rights under the Fourth Amendment. The magistrate judge recommended that the motion be denied finding that the warrant was supported by probable cause and, alternatively, that the officers executing the warrant were entitled to rely upon it in good faith.

The defendant timely objected and, after a de novo review, Judge Adelman reversed and granted the suppression motion. He rejected both of the magistrate’s findings. On the issue of probable cause, he concluded that the information provided by the CI's relative and the CI was both insufficiently detailed with respect to the alleged offense, and it was stale. He also noted that the police officer had failed to establish the reliability of either the relative or the CI, or to corroborate the relative's allegation that defendant possessed a weapon.

On the issue of good faith reliance, he concluded that the police officer’s affidavit

“was so plainly deficient that no reasonably well-trained officer would have relied upon it. The officer relied on the over-heard comment of an unidentified relative that three weeks previously she had seen defendant with a firearm of some sort somewhere in his house. The officer never identified, much less confirmed the reliability of, this relative. Nor did the officer corroborate any aspect of the relative's statement. Therefore, a reasonable officer would not have relied upon the warrant.”


U.S. v. Smith, No. 03-10548 (9th Cir. 09/13/05) (Judge Hawkins)

Rule 32(i)(4)(A)(ii) of the Fed.R.Crim.P. states that, before imposing sentence, the district court must address the defendant personally “in order to permit the defendant to speak or present any information to mitigate the sentence.” Not only will such sentence allocutions rarely - if ever - affect the sentence, this case shows that one of the real dangers of making any statement to the court is that it may infuriate the judge and result in a longer sentence.

The defendants in this case were convicted at trial of multiple counts of tax fraud, mail and wire fraud, money laundering, and conspiracy. At his sentencing hearing, defendant David Smith gave a lengthy speech in which he contested the court's jurisdiction and demanded that the court set him free. Not only did the district court (Judge England of the E.D.Cal.) take affront with Smith’s speech, it decided to increase Smith sentence by 30 months (from 121 months to 151 months - a 25 % increase!

On appeal, Smith argued that his First Amendment free speech and Fifth Amendment due process rights were violated because he was punished with a higher sentence for expressing his views on the district court's lack of jurisdiction. In rejecting that contention, the Court stressed that Judge England had made it clear that he was increasing the sentence based on Smith's lack of remorse, and his threat to the financial safety of the public when released. The Court concluded that those were legitimate sentencing factors under 18 U.S.C. § 3553(a), which include considering the “characteristics of the defendant” and the need for the sentence “to promote respect for the law,” “to afford adequate deterrence to criminal conduct,” and “to protect the public from further crimes of the defendant.” The Court concluded:

"The district court may indicate a tentative sentence and then hear from the defendant before making a final sentencing determination. . . . That the district court considered Smith's lack of remorse in sentencing him is by no means a novel concept. The district court did not err in taking Smith's statement into consideration for sentencing. The Sentencing Guidelines, in either their mandatory or advisory status, do not insulate a defendant from his or her own foolishness."


King v. Bureau of Prisons, 415 F.3d 634 (7th Cir. 2005) (Judge Posner)

This decision contains a rare and detailed discussion of the BOP’s “no business” regulation (28 C.F.R. § 540.14(d)(4)), which prohibits prisoners from conducting business from prison. The plaintiff, Anthony King, brought a Bivens action (see, Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)) against the Bureau of Prisons (BOP), claiming that it had violated his constitutional rights by forbidding him from contacting his stockbroker to enable him to sell some stocks and by prohibiting him from buying a book on computer programming.

Writing for the Court, Judge Posner held that the BOP had not violated King’s First Amendment rights of freedom of speech by preventing him from contacting his stockbroker by telephone in order to sell stock, principally because King “has no constitutional claim unless the prison’s action has deprived him of a constitutional right.”

However, the Court also emphasized that, by its express terms, the “no business” rule does not prohibit correspondence necessary to enable an inmate to protect property and funds that were legitimately the inmate’s at the time of commitment; that the BOP’s enforcement of that rule appeared to be “arbitrary” (id.); and that communicating with one’s broker to sell stock “is no more the conduct of a business than asking a real estate broker to sell one’s house is.” (Id.). Thus, it remanded the case to determine whether the BOP had improperly interfered with the prisoner’s right to communicate with his stock broker by mail.

Judge Posner also held that King had stated a valid claim that the BOP had violated his First Amendment rights by preventing him from obtaining a book on computer programming which he wanted for purposes of rehabilitation - i.e., to equip him to work as a computer programmer when he is released. In so ruling, he emphatically rejected as frivolous and far-fetched the BOP’s concerns that the prisoner might be able to write programs to disrupt the prison’s computer system, noting that any computers that prisoners are allowed to use are not connected to the prison network.


In Brief

Capital Cases - Bifurcation of Juries: U.S. v. Young, 376 F.Supp.2d 787 (M.D.Tenn. 2005) - Here, District Judge John Nixon joined with Judge Gertner of the D.Mass. in calling for the empaneling of two juries in a capital prosecution under the Federal Death Penalty Act (18 U.S.C. § 3593(b)) - one for the guilt phase and one for the penalty phase. (See Judge Gertner’s lengthy opinions to the same effect at U.S. v. Green, 343 F.Supp.2d 23 and 348 F.Supp.2d 1 (D.Mass. 2004)).

In his motion for twin juries, defendant Donnell Young argued that a single death-qualified jury will prejudice the guilt/innocence phase of the trial because: “(1) death-qualified jurors are more likely to make their sentencing decision prematurely, before the penalty phase of the trial; (2) death-qualified jurors are disproportionately biased toward imposing a sentence of death; (3) the outcome of the case would be greatly dependent upon the overall racial composition of the individuals jurors; and (4) the jury would not represent a fair cross-section of the community and reflect the conscience of the community because the death-qualification process would result in a virtually all white jury.” (Id., at 791).

Young also argued that it was particularly important that he have the opportunity to have Black jurors during the guilt/innocence phase because he is a Black male from Los Angeles, California and “has no connection whatsoever to Nashville, Tennessee.” (Id., at 795).

After a detailed recitation of numerous studies showing that race and sex are “the two major demographic predictors of death penalty attitudes,” Judge Nixon concluded that it was “highly likely” that Black jurors would be disproportionately excluded for cause from the jury in this case “due to the high rate of Black opposition to the death penalty. (Id., at 796). Accordingly, over strenuous Government opposition, Judge Nixon conclude that good cause existed at the outset “to empanel one jury to decide Young’s guilt or innocence and another, if necessary, to decide his sentence.” (Id., at 800).

 

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court
This Week
Year to Date
Since 1996
Courts of Appeal
75
1664
22,853
District Courts
47
962
12,776

Copyright © 2005 Punch and Jurists, Ltd.