Here's the blurb from Willamette Law Online: "A felon's Fourth Amendment right is not violated by a suspicionless search when the felon has already agreed to a suspicionless search condition as part of their probation agreement.
Marcel Daron King was convicted for possessing a firearm while being on probation for committing a felony. King appealed his conviction believing that his Fourth Amendment right was violated since the police obtained the firearm after conducting a suspicionless search of King’s home. Although the police did not have reasonable suspicion to search King’s home, King accepted a suspicionless search condition as part of his probation agreement. The Ninth Circuit held that because King accepted the suspicionless search condition, the search of his home was permissible. Examining the totality of the circumstances in order to determine if the search was reasonable involved looking at how much the search intruded into King’s privacy and how much the search promoted legitimate governmental interests. King had a lowered expectation of privacy due to him being on probation and having accepted the suspicionless search condition as part of his probation, so the search intruded into King’s privacy only slightly. On the other hand, the search promoted several legitimate governmental interests, which when weighed against only the slight intrusion into King’s privacy, make the search reasonable. AFFIRMED."
I'm wondering if we can just put an objection into our standard discovery requests, e.g.: "PROBATION CONDITION OBJECTION / Defendant objects to the unconstitutional probation term at ORS 137.540(1)(h) (PO walk-throughs). State v. Baldon, No. 10-0214 (Iowa S Ct, Apr 19, 2013) (cataloging cases so holding)." It might help us, at sentencing, to remember to re-object, and at least gives the client the argument that they did not voluntarily agree to the condition that was coercively imposed upon them.
Comments
The Iowa post wouldn't open and I'm not trying to sound snarky
Hello Smccrea, that problem has been fixed.
Ryan is right again, says the Ninth Circuit (saying that the government's unlawful search was cured by defendant's "acceptance" of his probation condition that Ryan has told us we shouldn't be accepting): http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/27/11-10182.pdf
Here's the blurb from Willamette Law Online: "A felon's Fourth Amendment right is not violated by a suspicionless search when the felon has already agreed to a suspicionless search condition as part of their probation agreement.
Marcel Daron King was convicted for possessing a firearm while being on probation for committing a felony. King appealed his conviction believing that his Fourth Amendment right was violated since the police obtained the firearm after conducting a suspicionless search of King’s home. Although the police did not have reasonable suspicion to search King’s home, King accepted a suspicionless search condition as part of his probation agreement. The Ninth Circuit held that because King accepted the suspicionless search condition, the search of his home was permissible. Examining the totality of the circumstances in order to determine if the search was reasonable involved looking at how much the search intruded into King’s privacy and how much the search promoted legitimate governmental interests. King had a lowered expectation of privacy due to him being on probation and having accepted the suspicionless search condition as part of his probation, so the search intruded into King’s privacy only slightly. On the other hand, the search promoted several legitimate governmental interests, which when weighed against only the slight intrusion into King’s privacy, make the search reasonable. AFFIRMED."
I'm wondering if we can just put an objection into our standard discovery requests, e.g.: "PROBATION CONDITION OBJECTION / Defendant objects to the unconstitutional probation term at ORS 137.540(1)(h) (PO walk-throughs). State v. Baldon, No. 10-0214 (Iowa S Ct, Apr 19, 2013) (cataloging cases so holding)." It might help us, at sentencing, to remember to re-object, and at least gives the client the argument that they did not voluntarily agree to the condition that was coercively imposed upon them.