United States v. Raymond Lee Scott

424 F.3d 888 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. 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, WILLIAM A. FLETCHER and JAY S. BYBEE, Circuit Judges. KOZINSKI, Circuit Judge. 1 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 2 Scott was arrested for drug possession crimes under state law and released on his own recognizance. Among…

dissenting:

The majority holds that probable cause is required for the warrantless search of the person or home of a pretrial releasee. This is not only an issue of first impression in our circuit, it is an issue of first impression in any federal court. In a case to which no state is a party, the majority casually adopts a rule that carries monumental implications for the pretrial procedures employed by every state in our circuit, as well as the United States.

*899 While the question is one of first impression, we are not without guidance. There is a body of jurisprudence — both state and federal — examining the status of probationers, parolees, and presentence and pretrial releasees. Based on my reading of the cases in this arena, I cannot agree with the majority’s new per se rule. If the “touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion[,]’ ” then an individualized inquiry must be undertaken to determine if the particular condition imposed is, in fact, “reasonable.” Pennsylvania v. Mimms, 434 U.S. 106, 108-09 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392…

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 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 urine 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…