Stopping and searching the car and person of defense counsel coming into a USMS jail did not violate defendant’s right to access to counsel. The limitations were all reasonable. United States v. Freeman, 2025 U.S. Dist. LEXIS 6745 (E.D. Okla. Jan. 14, 2025):
Cimarron’s regulations and practices have not unjustifiably obstructed Defendant’s access to counsel in this matter. Particularly, as it pertains to Mr. Perkins’ first two visits, Cimarron had a special governmental need such that it could search Mr. Perkin’s vehicle without probable cause or reasonable suspicion. The Supreme Court has explained that “neither a warrant nor probable cause, nor indeed any measure of individualized suspicion, is an indispensable component of [Fourth Amendment] reasonableness in every circumstance.” Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). One such instance where neither a warrant nor probable cause is required to conduct a search is when “special needs” make such a requirement impracticable. Romo v. Champion, 46 F.3d 1013, 1016 (10th Cir. 1995). The constitutionality of a “special needs” search under the Fourth Amendment is evaluated through a balancing test of the government’s needs and the individual’s privacy interest. Id. at 1017.
In this regard, the facts of the present case are analogous to those presented in Romo. In Romo, Mr. Romo’s vehicle was stopped and searched at a roadblock outside of an Oklahoma prison. Id. at 1015. Mr. Romo and the passenger were required to open the doors and trunk of the car and were subjected to a canine sniff of their vehicle and bodies. Id. Mr. Romo subsequently brought suit alleging that his Fourth Amendment right to be free from unreasonable searches and seizures was violated. Id. The Tenth Circuit conducted a balancing test and found that although “persons visiting a prison possess a legitimate expectation of privacy,” such expectations were outweighed by the facility’s “special need” in prison security and efforts to prevent the entry of contraband. Id. at 1010 (internal citations and quotations omitted).
Analogously, Defendant challenges Cimarron’s policy of requiring a brief detention and search of visitor’s vehicles as a condition to entering its premises. As in Romo, Cimarron has a special need in maintaining the security of its facility such that prison visitors have a reduced expectation of privacy. Id. at 1010; see Neumeyer v. Beard, 421 F.3d 210 (3d Cir. 2005) (“[C]onsidering the relatively minor inconvenience of the searches, balanced against the [Prison] officials’ special need to maintain the security and safety of the prison that rises beyond their general need to enforce the law, the prison officials’ practice of engaging in suspicionless searches of prison visitors’ vehicles is valid under the special needs doctrine.”). Moreover, Cimarron’s actions and policies comport with the federal regulations that govern the Bureau of Prisons. 28 C.F.R. § 511.13 (noting that staff may search belonging before entering, or while inside the facility, to keep out contraband); 28 C.F.R. § 511.15 (Non-inmates “belongings may be search, either randomly or based on reasonable suspicion, before entering, or while inside a Bureau facility or Bureau grounds … Non-inmates will be given the option of either consenting to random searches as a condition of entry, or refusing such searches and leaving Bureau grounds.”). Thus, Cimarron’s policy and practice to conduct “warrantless and reasonable suspicion free search[es]” of visitors and deny entry to those who do not consent to a search, does not unjustifiably obstruct Defendant’s right to professional representation.
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, Let it Bleed (album, 1969)
"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)