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Pubdate: Fri, 16 Sep 2005
Source: Lahontan Valley News (NV)

TAGS Medical Marijuana Onlinepot Dispensary’s Marijuana Case Law Case Law Court Rulings California Legal Research Cannabis Law Suits Attorney General US Supreme Court District Court State Court Marijuana Court Rulings 9th district court US Department Of Justice DEA Drug Lawyers Legal Defenses Case Rulings SEARCH AND SEIZURE

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A recent ruling by the Ninth Circuit Court of Appeals could have wide
 ranging implications for Fallon defendants accused of crimes.

Churchill County District Attorney Arthur Mallory said the decision means conditions cannot be put on defendants who are released from jail on their promise to appear in court.

Local judges commonly impose conditions on a defendant who is released from jail on his or her own recognizance, such as no drinking or no driving for a person accused of driving under the influence of alcohol.

A majority opinion by a three-judge panel of the appeal court said putting conditions on an arrestee’s OR release from custody violates their Fourth Amendment right to privacy.

The court reviewed a Reno case where Raymond Lee Scott consented to random drug testing and searches of his home without a warrant as conditions of his release from jail on his own recognizance.  Scott was charged with drug possession at the time.

Police later went to Scott’s home based on a tip and administered a urine test, which tested positive for methamphetamine.  Scott was arrested, his home was searched and an illegal shotgun was found, according to the published opinion.

Ninth Circuit Court justices ruled the search of Scott’s home and the drug test were not valid because they violated Scott’s right to privacy.

"Many pre-trial detainees willingly consent to such conditions, preferring to give up some rights in order to sleep in their own beds while awaiting trial," part of the opinion said.  "…Giving the government free rein to grant conditional benefits creates the risk that the government will abuse its power by attaching strings strategically, striking lopsided deals and gradually eroding constitutional protections."

Mallory said the ruling means many defendants who cannot post bond could remain in jail while awaiting court dates if a judge is prohibited from imposing conditions based on an OR release.

"The case is more detrimental to the accused than anyone else," Mallory said.  "This will put a tremendous cramp in someone’s ability to get out of jail.  This is the tip of the iceberg as far as long term ramifications.  A person charged with a third DUI cannot be told don’t drink and drive as a condition of his release from jail.  Now, any time someone is accused of a third DUI, we’re going to have to argue that he remain in jail."

A third drunken driving conviction is a felony with a mandatory minimum sentence of one year in prison.

Churchill County Public Defender Paul Drakulich agrees the court ruling will force some people, especially poor defendants, to stay in jail when they would willingly agree to conditions for an OR release.

"They’re the ones who are really going to feel the impact," he said about defendants without bail money.  "I think it’s going to be real difficult for people who could be out on OR and would abide by conditions and agree to them.  They’re now going to be sitting in jail."

Circuit Judge Jay S.  Bybee dissented.

"Today’s decision strikes down Nevada’s practice of offering pretrial detainees the option of being released on OR and sleeping in their own beds in exchange for agreeing to a limited number of conditions that the state believes will protect the public and secure the attendance of the accused at trial," Judge Bybee states.

Mallory and other Nevada district attorneys will be urging the U.S.  Supreme Court to review the Ninth Circuit Court’s ruling.

The Ninth Circuit is the largest of 13 federal courts and covers California, Oregon, Washington, Arizona, Nevada, Montana, Idaho, Alaska, Hawaii, Guam and Northern Mariana Islands.

Judge Bybee noted that every state covered by the Ninth Circuit has rules similar to Nevada’s where judges may impose conditions on an suspect who is granted an OR release from custody. 

       Copyright: 2005lahontanvalleynews.com
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Details: http://www.mapinc.org/media/3456
Author: Marlene Garcia
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