Monday, Sept. 12, 2005 | 9:35 a.m.
CARSON CITY -- A federal appeals court has ruled that the constitutional right to privacy extends to people awaiting trial on criminal charges, even if they agree to random drug testing and searches of their home without a warrant.
The 2-1 decision by the 9th U.S. Circuit Court of Appeals on Friday said that search of the person's home must be reasonable and not a violation of the individual's Fourth Amendment right to privacy.
The dissent, written by Judge Jay Bybee, said the majority's decision "will have monumental implications for the pretrial procedures employed by every state in our circuit as well as the United States."
The case involved Raymond L. Scott, charged with possession of methamphetamine and drug paraphernalia in Douglas County.
In order to be released without bail pending trial, Scott signed a document in which he agreed to random drug and alcohol testing without a warrant and a search of his home or car without a warrant for drugs or alcohol. He also promised not to carry or possess any weapons.
Acting on a tip, law enforcement officers went to Scott's house and administered a urine test. A search of the home turned up a shotgun.
Results from the urine test were positive at first but later found to be negative. A federal grand jury in Reno indicted Scott for illegally possessing an unregistered shotgun.
U.S. District Judge David Hagen granted a defense motion to suppress the evidence of the shotgun found in the home on grounds the search was without probable cause. The government appealed.
The appeals court, in the majority decision written by Judge Alex Kosinski, said the government conceded it did not have probable cause to administer the drug test and the search of the home.
Many persons charged with a crime willingly sign the waivers to allow searches because they want to stay in their own homes pending trial, the court said.
Kosinski wrote, "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."
Kosinski said probable cause to search Scott's house did not exist until the drug results were determined to be positive. The court said the signed waiver and the search were not necessary to ensure his appearance at trial. It added, "Moreover, the assumption that Scott was more likely to commit crimes than other members of the public is contradicted by the presumption of innocence."
Bybee, in the dissent, said, "Requiring states to make an empirical showing before imposing a drug testing condition ties the hands of the states in preventing crimes and protecting the public."
He said, "Drug testing helps ensure that the accused if physically and mentally prepared for trial, so that there are no delays or claims that the defendant was unable to understand the proceedings or participate in his defense."
But Kosinski said Bybee was unable to see the distinction between someone who has been convicted of a crime and loses his constitutional rights and someone who has merely been accused of a crime and is still presumed innocent.
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