Cal.4th: No statutory or inherent authority for a court to impose a search condition as a condition of bail

There is no statutory or inherent authority for a court to impose a search condition as a condition of bail. The defendant is still presumed innocent and still has a reasonable expectation of privacy. In re Webb, 2018 Cal. App. LEXIS 80 (4th Dist. Jan. 31, 2018):

The magistrate here nevertheless issued the Fourth Amendment waiver condition on the theory that it had inherent authority to impose reasonable conditions under In re McSherry, supra, 112 Cal.App.4th 856 and Gray v. Superior Court, supra, 125 Cal.App.4th 629. It stated that “a [Fourth] Amendment waiver condition is a reasonable condition of release when you are dealing with drug-related offenses.”

We conclude the magistrate had no such authority to deprive Webb of her Fourth Amendment right, and her right under article I, section 13 of the California Constitution, to be free from unreasonable searches and seizures as a condition to her release after she posted the scheduled amount of bail. She is a pretrial releasee who has not been tried or convicted of a crime, she retains a reasonable expectation of privacy in her home, and she has a right to be free from confinement. (See York, supra, 9 Cal.4th at p. 1149; Gray v. Superior Court, supra, 125 Cal.App.4th at p 644; Cruz v. Kauai County (9th Cir. 2002) 279 F.3d 1064 ["one who has been released on pretrial bail does not lose his or her Fourth Amendment right to be free from unreasonable seizures"].) Persons who are released pending trial “have suffered no judicial abridgment of their constitutional rights.” (U.S. v. Scott (9th Cir. 2006) 450 F.3d 863, 872.)

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