CA3: NJ bail reform act doesn’t violate 4A or 8A

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.

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