United States v. Raymond Lee Scott

424 F.3d 888, 2005 U.S. App. LEXIS 19473, 2005 WL 2174413
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 9, 2005
Docket04-10090
StatusPublished
Cited by6 cases

This text of 424 F.3d 888 (United States v. Raymond Lee Scott) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Raymond Lee Scott, 424 F.3d 888, 2005 U.S. App. LEXIS 19473, 2005 WL 2174413 (9th Cir. 2005).

Opinions

KOZINSKI, Circuit Judge.

We consider whether police may conduct a search based on less than probable cause of an individual released while awaiting trial. This issue is one of first impression in our circuit. Somewhat surprisingly, it is an issue of first impression in any federal circuit and the vast majority of state courts.1 A lack of binding precedent does not, of course, excuse us from deciding a difficult issue when, as here, it is squarely presented.2

Facts

Scott was arrested for drug possession crimes under state law and released on his own recognizance. Among the conditions of his release was 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, officers went to Scott’s house and administered a [890]*890urine test. The government concedes the tip did not establish probable cause. When Scott tested positive for methamphetamine,3 the officers arrested him and searched his house. The search ultimately turned up a shotgun.

A federal grand jury indicted Scott for unlawfully possessing an unregistered shotgun.4 The district court granted Scott’s motion to suppress the shotgun and statements he had made to the officers concerning it, reasoning that the officers needed probable cause to justify the war-rantless search. The federal government took an interlocutory appeal pursuant to 18 U.S.C. § 3731.

Discussion

1. We first examine whether the searches — the drug test and the search of Scott’s house — were valid ‘because Scott consented to them as a condition of his release.5

The government may detain an arrestee “to ensure his presence at trial,” Bell v. Wolfish, 441 U.S. 520, 536, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and may impose some conditions, such as reasonable bail, before releasing him, see United States v. Salerno, 481 U.S. 739, 754, 107 5.Ct. 2095, 95 L.Ed.2d 697 (1987). 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. After all, Scott’s options were only expanded when he was given the choice to waive his Fourth Amendment rights or stay in jail. Cf. Doyle v. Cont’l Ins. Co., 94 U.S. 535, 542, 24 L.Ed. 148 (1876). 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, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994), limits the government’s ability to exact waivers of rights as a condition of benefits, even when those benefits are fully discretionary.6 Government is a monopoly pro-[891]*891vider 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. 4, 21-25 (1988).

The doctrine is especially important in the Fourth Amendment context. Under modern Fourth Amendment jurisprudence, whether a search has occurred depends on whether a reasonable expectation of privacy has been violated. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). While the Katz principle was originally used to expand Fourth Amendment protection to cover government invasions of privacy in public places like phone booths, it can also serve to contract such protection in private places such as homes. As the Court recently explained in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001);

In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz. ... As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. We have subsequently [892]*892applied this principle to hold that a Fourth Amendment search does not occur — even when the explicitly protected location of a house is concerned — unless “the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.”

Id. at 32-33, 121 S.Ct. 2038 (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)) (citation omitted) (alteration in original); see also United States v. Kincade, 379 F.3d 813, 873 (9th Cir.2004) (en banc) (Kozinski, J., dissenting).

The focus on subjective expectations can give rise to the following chain of logic: By assenting to warrantless house searches and random, warrantless urine tests Scott destroyed his subjective expectation of privacy, and this in turn made his searches no longer searches, depriving him of Fourth Amendment protection altogether. But the Supreme Court has resisted this logic, recognizing the slippery-slope potential of the Katz doctrine:

[I]f the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects.... In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.

Smith v. Maryland, 442 U.S. 735, 740 n. 5, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

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424 F.3d 888, 2005 U.S. App. LEXIS 19473, 2005 WL 2174413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-raymond-lee-scott-ca9-2005.