United States v. Raymond Lee Scott

with whom O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BYBEE, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc:

The panel majority holds that a person arrested for drug offenses may not as a condition of pretrial release consent to searches for drugs on the basis of reasonable suspicion rather than probable cause. The majority’s groundbreaking opinion misconceives the reality of pretrial release and the applicable constitutional principles, and substantially undermines and seriously burdens pretrial-release proceedings in the nine states covered by our circuit. I cannot endorse this flawed approach.

The majority’s opinion is built on two false pillars. First, the majority asserts that defendants released pending trial *890 “have suffered no judicial abridgment of their constitutional rights.” Am. Op. at 872. 1 While one might quibble over whether there is a “judicial” abridgment, the reality is that there is an abridgment and a court is involved. When a person is arrested, his constitutional rights are naturally abridged; the arrest is followed by a judicial determination as to the extent to which his rights may be abridged. A court determines whether he is…

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The opinion and dissent filed September 9, 2005, and reported at 424 F.3d 888 , is withdrawn, and is replaced by the Amended Opinion and Amended Dissent, 04-10090.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

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 *865 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…

dissenting:

The majority holds that probable cause is required for the warrantless search of the person or home of a pretrial releasee even though the releasee agreed to the search as a condition of his pretrial release. The majority reasons that, for Fourth Amendment purposes, we cannot distinguish between persons charged with a crime and those who are not. As the majority writes, “[tjhat an individual is charged with a crime cannot, as a constitutional matter, give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody.” Maj. op. at 874. That conclusion is contrary to history, practice and commonsense; it carries monumental implications for the pretrial procedures employed by every state in our circuit, as well as the United States.

This is not only an issue of first impression in our circuit, it is an issue of first impression in any federal court. 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 re-leasees. Based on my reading of the cases, I cannot…

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 1 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. 2 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 3…