U.S. v. Scott

• Decision Date: 09 September 2005
• Docket Number: No. 04-10090.,04-10090.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Raymond Lee SCOTT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 863

450 F.3d 863

UNITED STATES of America, Plaintiff-Appellant, v. Raymond Lee SCOTT, Defendant-Appellee.

No. 04-10090.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2004.

Filed September 9, 2005.

Amended June 9, 2006.

Paul L. Pugliese, Assistant United States Attorney, Reno, NV, for the plaintiff-appellant.

Michael K. Powell and Cynthia S. Hahn, Reno, NV, for the defendant-appellee.

Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CR-03-00122-DWH.

Before ALEX KOZINSKI, W. FLETCHER and JAY S. BYBEE, Circuit Judges.

ORDER

The opinion and dissent filed September 9, 2005, and reported at 424 F.3d 888, is withdrawn, and is replaced by the Amended Opinion and Amended Dissent, 04-10090. The petition for rehearing is otherwise denied.

A judge requested a vote on whether to rehear this case en banc. The case failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. See Fed. R.App. P. 35. The petition for rehearing en banc is

DENIED.

No further petitions for rehearing or rehearing en banc will be accepted.

OPINION

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.

Facts

Scott was arrested in Nevada on state charges of drug possession and released on his own recognizance. In order to qualify for release, Scott was required to sign a form stating that he agreed to comply with certain conditions. Among the conditions 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." There is no evidence that the conditions were the result of findings made after any sort of hearing; rather, the United States concedes that the conditions were merely "checked off by a judge from a standard list of pretrial release conditions."

Based on an informant's tip, state officers went to Scott's house and administered a urine test. The government concedes the tip did not establish probable cause. When Scott tested positive for methamphetamine,² 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.³ 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 warrantless 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.⁴

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 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Many pretrial 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 (1877). 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.⁵ 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 . . . [u]nconstitutional 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 juris-prudence, 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 applied 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).

Pervasively imposing an intrusive search regime as the price of pretrial release, just like imposing such a regime outright, can contribute to the downward ratchet of privacy expectations. While government may sometimes condition benefits on waiver of Fourth Amendment rights—for instance, when dealing with contractors, see Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946); Yin v. California, 95 F.3d 864, 872 (9th Cir.1996) ("It is clear that a contract may under appropriate circumstances diminish (if not extinguish) legitimate expectations of privacy."), or paying welfare benefits, see Wyman v. James, 400 U.S. 309, 317-18, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971)—its power to do so is not unlimited.

Government employees, for example, do not waive their Fourth Amendment rights simply by accepting a government job; searches of government employees must still be reasonable. See Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (citing O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion); id. at 731, 107 S.Ct. 1492 (Scalia, J., concurring in the judgment)). Von Raab also forecloses a milder version of the waiver theory, which would hold that an employee keeps his Fourth Amendment rights but makes all searches reasonable through his consent: The employee's assent is merely a relevant factor in determining how strong his expectation of privacy is, see id. at 672 n. 2, 109 S.Ct. 1384, and thus may contribute to a finding of reasonableness. See page 872 infra.

The government is obviously subject to no fewer constraints when acting as sovereign than as employer, and deciding whether someone...