New Jersey’s bail reform act which shifts emphasis away from money bail to other restraints and conditions to assure release and return to court does not violate the Fourth Amendment. Not all restraints are unreasonable, given a probable cause finding on the defendant in the first place. Also, the court doesn’t accept that all electronic monitoring is unreasonable. Holland v. Rosen, 2018 U.S. App. LEXIS 18554 (3d Cir. July 9, 2018):
We do not accept as given that placing an electronic monitor on an individual and then tracking his whereabouts always constitute a search and seizure, and that home detention is a seizure. In Grady v. North Carolina, 135 S. Ct. 1368, 191 L. Ed. 2d 459 (2015), the Supreme Court held that “a State … conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” Id. at 1370 (emphasis added). Holland does not challenge on appeal the District Court’s finding that he consented to the conditions imposed on him. We are aware of no binding authority that holds consented-to tracking and consented-to home detention are a search and a seizure.
Even assuming they are, we cannot estimate the extent to which they intrude on Holland’s privacy. Holland alleges the ankle bracelet he wears for monitoring purposes requires him to stay near a power outlet for several hours a day while the device charges, precludes him from traveling on a commercial airplane, and discloses “a massive amount of private information about [his] life to the state.” Appellants’ Br. at 50. But the District Court did not find any facts that support an intrusion on privacy; rather, it assumed these practices are intrusive. We too assume without deciding they are at least somewhat intrusive.
That intrusiveness, however, is lessened by Holland’s reduced expectation of privacy. “Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, … his or her expectations of privacy and freedom from police scrutiny are reduced.” King, 569 U.S. at 463. Holland does not challenge that he was arrested on probable cause for a dangerous offense, and thus we consider his expectation of privacy to be reduced.
Against Holland’s reduced privacy interest we balance the State’s interest. The Supreme Court has held “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials” and a “legitimate and compelling” interest in preventing crime by arrestees. Id. at 452-53 (citations omitted). These mirror the goals espoused by the State in the Reform Act, and Holland does not challenge the legitimacy of them. Rather, he argues the conditions are not reasonable because monetary bail could serve the same legitimate interests in a less intrusive manner. We repeat the State found monetary bail did not adequately address flight risk and could not, by its nature, address risk of danger.
In any event, Holland’s argument fails as a matter of law because the Supreme Court “has repeatedly stated that reasonableness under the Fourth Amendment does not require employing the least intrusive means ….” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawotomie Cty. v. Earls, 536 U.S. 822, 837, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002); see also Illinois v. Lafayette, 462 U.S. 640, 647, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983). The existence of a less intrusive means does not itself render a search or seizure unreasonable. Whether the conditions to which Holland agreed are in themselves unreasonable, regardless of the availability or unavailability of monetary bail, is beyond the scope of our inquiry and in any event can be revisited if circumstances change.
We hold Holland is unlikely to succeed on the merits of his argument that the Reform Act violates the Fourth Amendment because monetary bail could serve the same legitimate government interest in a less intrusive manner than the conditions to which he agreed. The Supreme Court has repeatedly disavowed a “less intrusive means” standard for determinations of reasonableness under the Fourth Amendment, see Lafayette, 462 U.S. at 647, and we will not adopt one here.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)