Wednesday, September 14, 2005
Copyright © Las Vegas Review-Journal

Decision challenges release conditions, legal analysts say

Panel rules police can't search homes of people awaiting trial

RENO -- A ruling by a federal appeals court could undermine conditions imposed on defendants released from custody while awaiting trial, some legal observers say.

A three-judge panel of the 9th U.S. Circuit Court of Appeals, in a ruling issued Friday, said it was unconstitutional for police to search the homes of people awaiting trial unless there is probable cause.

The case involves Raymond Lee Scott of Gardnerville, who was arrested in 2003 in Douglas County on one felony and two misdemeanor drug charges.

Scott, 46, was released on his own recognizance after agreeing to random drug tests and searches "anytime of the day or night by any peace officer without a warrant," according to court records.

Soon after his release, a probation officer received a tip that Scott had guns and drug paraphernalia in his possession, court papers said. Without a warrant, the officer went to Scott's home and administered a urine test, which Scott failed.

Scott was arrested, and while sitting on a couch handcuffed, the officer asked about his guns. Scott gestured across the room to a sawed-off .410-gauge shotgun.

He was indicted by a federal grand jury on one count of illegal possession of a firearm. But U.S. District Judge David Hagen in Reno ruled the shotgun and Scott's comments could not be used in court because officers lacked probable cause to justify the warrantless search.

Federal prosecutors appealed that ruling.

Officials with Southern Nevada's state courts said the idea of a defendant waiving their Fourth Amendment rights as a condition of release before trial was foreign to them.

District Judge Stewart Bell, previously Clark County's district attorney, said when a defendant is released on their own recognizance pending trial in state court, police still have to secure a warrant to search the individual's home if the person is suspected of another crime.

"I've never heard of asking someone to give up their Fourth Amendment rights as a condition of their release," Bell said.

Bell said when defendants are released on their own recognizance pending trial in Southern Nevada, a judge can put certain restrictions on their actions. For instance, a judge can prevent defendants from leaving the state and order them to keep away from the accuser in the crime they are charged with committing.

A judge can also order defendants be placed on house arrest or under intensive supervision, in which suspects report regularly to law enforcement at the Clark County Detention Center.

These scenarios do not, however, involve random, warrantless searches of an individual's home.

"I don't think the (9th Circuit's) ruling will hamper law enforcement at all," Bell said. "If the police have legitimate information that a crime has been committed, then they take it to a judge and get a warrant."

Once a defendant is convicted of a crime, however, and they are placed on probation, the individual is subject to random searches without warning by parole and probation officials.

"Probation is a privilege, and you, as a judge, can condition that on anything," Bell said.

Assistant Federal Public Defender Cynthia Hahn, who handled Scott's appeal, applauded the ruling.

"Until there is a determination otherwise, people are innocent," Hahn told the Reno Gazette-Journal.

Washoe County District Attorney Richard Gammick had a different opinion.

"He made a contract, he has to live up to that," Gammick said. "If he's not going to honor that contract, fine, you can stay in jail."