{"id":6548,"date":"2012-05-01T09:27:08","date_gmt":"2012-01-16T00:12:20","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-01-15T11:47:24","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6548","title":{"rendered":"ND almost holds searches as a condition of pretrial release violate Fourth Amendment"},"content":{"rendered":"

State criminal rule 46 which has a catch-all \u201cimposing any other conditions reasonably necessary to assure appearance as required, including a condition requiring the return of the person to custody after a specified time of day\u201d does not, at least on this record, permit warrantless searches of defendant\u2019s home or person [except maybe for urine testing which was not argued] as a condition of pretrial release because of the presumption of innocence, at least without some findings that it is required to assure appearance in court as directed. Here it was imposed without findings and was an abuse of discretion. State v. Hayes<\/a>, 2012 ND 9, 809 N.W.2d 309 (2012). [Note: The court didn\u2019t quite hold that warrantless searches of the home are an unreasonable condition of pretrial release because it apparently felt it couldn\u2019t go that far. But, how can a court ever logically hold after a hearing that a search of the defendant’s home is necessary to show his or her appearance in court? Nevertheless, I can\u2019t see how it can be anything but a violation of the Fourth Amendment, absent the super-rare case where it could conceivably be shown by the government, but, in such a case, wouldn’t the defendant already be detained? The state’s attempting to base the searches on the law of probationers and parolees is grasping at straws because they are based on a conviction, and pretrial detainees are subject to a probable cause finding with the arrest warrant and indictment or information. Then there are those on both pretrial release and probation who would still be subject to valid probation searches.]<\/p>\n

A Virginia mine sued the state mining inspectors for pursuing anonymous complaints for inspections of the mine that led to numerous safety citations. The Virginia mining inspection statute satisfied the Burger<\/a> standard and the Fourth Amendment. Thus, qualified immunity isn\u2019t even an issue. Lesueur-Richmond Slate Corp. v. Fehrer<\/a>, 666 F.3d 261 (4th Cir. 2012).<\/p>\n","protected":false},"excerpt":{"rendered":"

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