Defendant is a sexually violent predator (SVP), and he’s institutionalized. His custodial status shares all the attributes of being in prison, including institutional security. The only place an SVP could hide child pornography is in his dormitory room. His room is subject to search at any time. People v. Golden, 2017 Cal. App. LEXIS 1171 (5th Dist. Dec. 27, 2017), ordered published Jan. 24, 2018):
Defendant is an SVP. Under the California Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), an SVP is “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior” (id., § 6600, subd. (a)(1)). While SVP’s “‘are to be viewed “not as criminals, but as sick persons”’” (People v. Fields (2009) 175 Cal.App.4th 1001, 1017 [96 Cal. Rptr. 3d 668]), they nonetheless are “confine[d] and treat[ed] … until their dangerous disorders recede and they no longer pose a societal threat” (Moore v. Superior Court (2010) 50 Cal.4th 802, 815 [237 P.3d 530, 114 Cal. Rptr. 3d 199]). An SVP’s commitment to a secured facility like CSH, which “‘“protect[s] the public from [a] dangerous felony offender[] with [a] mental disorder[]”’” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 344 [188 Cal. Rptr. 3d 309, 349 P.3d 1013]), is sufficiently analogous to an inmate’s incarceration in prison, which “by definition … [is a] place[] of involuntary confinement of persons who have a demonstrated proclivity for anti-social criminal, and often violent, conduct” (Hudson, supra, at p. 526). Also, akin to prison administrators, CSH staff is “under an obligation to take reasonable measures to guarantee the safety of the [patients]” and “must be ever alert to attempts to introduce … contraband into the premises … .” (Id. at pp. 526–527.) Because treatment and rehabilitation of SVP’s is the purpose of SVPA commitments, it is especially critical for CSH staff to prevent these individuals from procuring child pornography and other illicit material.
“Determining whether an expectation of privacy is ‘legitimate’ or ‘reasonable’ necessarily entails a balancing of interests.” (Hudson, supra, 468 U.S. at p. 527.) Here, the competing interests are defendant’s interest in privacy within his area of the CSH dormitory and society’s interests in both the security and order of a maximum-security psychiatric hospital and the treatment and rehabilitation of SVP’s. “Virtually the only place [patients] can conceal … contraband [such as child pornography] is in their [dormitories].” (Ibid.) A recognition of privacy rights for SVP’s in their dormitories would hamper CSH staff from accessing the dormitories and ferreting out child pornography, the possession of which has become widespread, has incited violence among the patients, and clearly undermines the rehabilitation objective. Searches of the over 800 SVP’s and their dormitories, even if done at random, “‘are valid and necessary to ensure the security of the institution and the safety of [patients]’” (id. at p. 529) as well as promote the rehabilitation objective, giving CSH staff “‘flexibility’” and preventing patients “‘from anticipating, and thereby thwarting, a search for contraband’” (ibid.), a key concern at CSH. We also point out the record establishes a CSH dormitory “‘shares none of the attributes of privacy of a home’” (id. at p. 527): the dormitory itself accommodates multiple patients, officers conduct random searches on a daily basis, and various signs throughout the facility warn patients they are subject to such searches.
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)