The Price of Pretrial Release: Can We Afford to Keep Our Fourth Amendment Rights?

Abstract

This Article looks at the intersection of the Fourth Amendment, which protects Americans' personal security against arbitrary and oppressive searches by law enforcement officials, and the Eighth Amendment, which proscribes excessive bail. The focus is on the validity and effectiveness of an arrested person's agreement to relinquish some or all of her Fourth Amendment rights as a means of gaining freedom from pre-trial detention. In other words, can an arrested person validly "consent" to waive some of her Fourth Amendment rights to avoid pre-trial detention? Recently, in a case of first impression in the federal courts of appeal, the Ninth Circuit invalidated a search of a home that rested on such a waiver. In United States v. Scott, the Ninth Circuit concluded that such a waiver is not always effective. In borderline cases, in which the judicial officer is leaning toward detention, the waiver issue can be the deciding factor.

The ability of arrested persons to bargain away some of their Fourth Amendment rights may prove especially important to indigent defendants who have little or no money, property or means to offer as collateral. With the capacity to relinquish some of their Fourth Amendment protections, indigent defendants would gain an additional bargaining tool to obtain their release from jail.

This Article contends that such waivers are legally effective and can be properly limited. The Fourth Amendment, the Eighth Amendment, the Bail Reform Act, the Unconstitutional Conditions Doctrine, and basic offer and acceptance principles of contract law will confine waivers and protect pre-trial defendants from potential abuse by the government, which might otherwise capitalize on an arrested person's vulnerability to subordinate one constitutional right to protect another.