September 12, 2005

U.S. v. Scott

by Sean Sirrine

[UPDATE BY PG: For those viewing this entry after seeing its citation in United States v. Scott, 2006 U.S. App. LEXIS 14182 (9th Cir. Nev. June 9, 2006), please be aware that the dissent erroneously identified the author as a member of the defense bar; Sean Sirrine was a first year law student at the time he wrote the following.]

I wrote today on my other blawg, Objective Justice, that I would discuss the recently released opinion in U.S. v. Scott over there. Since then, I have changed my mind and decided that this forum would be a great place to continue my history of posting Judge Kozinski opinions. (Well that, and I made an ass of myself by posting that the opinion came out today rather than last Friday.)

As a summary, this is what I got out of the case:

Judge Alex Kozinski, (my favorite appellate judge), has issued an opinion today on pretrial waiver of 4th Amendment Rights. Kozinski claims that this is the first opinion from the Circuit Courts on this issue and that it is unconstitutional to make someone waive their rights in order to stay out of jail. Judge Jay S. Bybee dissented.
Seem like an intriguing case? Follow the "continue reading" link to get all the juicy details.

I'm not going to do my usual interpretation type thing, (where I drag on forever), but rather give you a brief taste of some of the issues I found especially intriguing.

The question presented in this case was one of first impression and revolved around whether someone may relinquish their 4th Amendment Rights in order to remain out of jail. (I know that sounds like I'm taking sides already, but really I'm not. Even the dissenting opinion was couched in a belief that someone who is awaiting trial may give away his full 4th Amendment Rights.)

There is no contention that Mr. Scott was searched with less than probable cause, the contention was however, that since Mr. Scott had waived these rights in order to remain out of jail this burden of proof was not necessary.

The courts have come to some conclusions that seem to make it clear that if a person is on probation, there is less expectation of privacy and that someone awaiting trial that has signed away these rights also cannot expect the "normal" level of privacy afforded most citizens.

Judge Kozinski, in his opinion, refutes this assertion and claims that the state needs to show what the "special need" of the state is to remove these rights. In his view, the state never gave any indication as to why it was necessary to request these rights in this given case. (He explains that there may be just cause for cases that have a different fact pattern.)

All in all, Judge Kozinski was protecting the ideal espoused in our legal system that a citizen is innocent until proven guilty, and that until they are found guilty they have all the 4th Amendment Rights any other citizen has if the state decides to release them into the public.

As I agree with Judge Kozinski's legal analysis, I think it is only fair to point to the problems that this may create from a policy standpoint. If all suspects charged with a crime retain all their rights if they are released, why would the state release them? I mean, they have to set reasonable bail, but if the accused cannot afford this bail, (so mainly the poor), they will have to remain behind bars until their trial. No prosecutor is going to allow someone to walk the streets without any restraint while they are being charged with felonies. So this opinion will most likely cause more people to be kept behind bars.

This might be good, but remember this is supposed to protect the ideal of “innocent until proven guilty”. If more of these people have to spend their time behind bars, are we really protecting this ideal?

September 12, 2005 10:03 PM | TrackBack

I think your assessment of this decision is on-point. I, too, believe the practical impact will be the incarceration of many those people whose rights Judge Kosinski is trying to protect.

You mention this decision especially impacting the poor, who cannot afford "reasonable bail". That's particularly true in the State arena. In the Federal arena, there are more release alternatives for the court to choose from, substituting non-financial conditions when financial resources aren't available. This means people of lesser financial means have a better chance for release in federal courts. Stand-alone drug testing (not associated with treatment) is widely ordered in federal court as a condition of release to offset perceived risks of nonappearance and danger to the community. If this condition is no longer an option, it will be much more difficult for defense counsel to successfully argue for release in many cases.

Finally, I'm at a loss to understand why the Ninth Circuit court didn't find a nexus between the facts of Scott's care and the order for drug testing.

Posted by: Anonymous Blogger at September 18, 2005 12:51 PM

Please follow my lead and send your compliments recommending Judge Kosinzki for the U.S. Supreme Court.

Posted by: Michael H. Ditton at October 1, 2005 05:14 PM

Did you realize that this blog was cited by the Ninth Circuit in their 9 June amended decision (see Callahan's dissent from denial of rehearing en banc)? Does it strike anyone as strange that the Ninth Circuit would cite to a blog to support their legal argument (or is it just me). Pretty soon courts will be quoting the "Daily Show."

Posted by: Andy Smith at June 19, 2006 01:35 PM

Yes, we're aware. Google makes things like this happen.

Posted by: PG at June 19, 2006 03:43 PM
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