Presented by James Whiteside and Souder Tate 17 th Annual MADCP Conference May 24, 2015
14 th Amendment 1st Amendment Religion Due Process Association Sanctions Termination Revocation 4th Amendment Judicial Impartiality Search & Seizure Right to Counsel Drug & Alcohol Testing Equal Protection
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A treatment court is centered in a small community with a few AA/NA meetings, a Celebrate Recovery group at a local church, but no secular alternatives. Can you mandate attendance at a self-help group even though no secular alternatives are available?
Decision to turn our lives over to God (Step 3); Confess to God the nature of our wrongs (Step 5); Humbly ask God to remove our short comings (Step 7); By prayer and meditation improve our conscious contact with God (Step 11).
Law is well-settled that ordering a participant to attend AA/NA is a violation of the Establishment of Religion Clause. AA/NA attendance CANNOT be ordered as condition of probation, drug court or early re-entry from prison. Violating this principle can result in a loss of immunity and personal liability.
Parole officer lost qualified immunity by forcing AA on Buddhist - Inouye v. Kemna , 504 F.3d 705 (9th Cir. 2007). DOC’s use of program involving serenity prayer and religious mediation in early release criteria violates 1 st Amend. - Jackson v. Nixon , 747 F.3d 537 (8th Cir. 2014); Drug Court program manager and drug court consultant held liable for referral to faith based program where they knew participant objected and when the program denied the participant the opportunity to practice his chosen faith – Catholicism) - Hanas v. Inner City Christian Outreach, Inc. , 542 F. Supp. 2d 683 (E.D. Mich. 2008); Forcing atheist into 12 step religious based program = settlement w/ State paying $1M & treatment agency $925K - Hazle v. Crofoot , 727 F.3d 983 (9th Cir. 2013).
No Establishment Clause violation where DUI probationer had choice over program, including self-help programs that are not premised or monotheistic deity - O’Conner v. California , 855 F. Supp. 303, 308 (C. D. Calif. 1994) No violation where Defendant participated in chemical dependency class that included AA/NA because the program provided alternatives - In re Garcia , 24 P.3d 1091, 106 Wash. App. 625 (Ct. App. 2001) A state supported non-coercive, non-rewarding faith based program is an unconstitutional First Amendment establishment clause violation where an alternative is not available - Americans United for Separation v. PRISON FELLOW. MINISTRIES , 509 F.3d 406 (8th Cir. 2007).
Smart Recovery • www.smartrecovery.org Rational Recovery • www.rational.org LifeRing Secular Recovery • www.unhooked.com LifeRing Secular Organizations for • Sobriety (SOS) www.secularhumanism.org/sos •
Treatment provider is concerned with the preoccupation certain participants have with rap and hip-hop culture and provides team with a study showing how often this type of music mentions drug use. Can you restrict participants from attending a rap festival in your county if no proof of substance use? Can you forbid participants from listening to rap and hip hop?
Area and Place restrictions are “Reasonable” when narrowly drawn: Whether the defendant has a compelling need to go through/to the area; A mechanism for supervised entry into the area; The geographic size of the area restricted; and The relatedness between the restriction and the rehabilitation needs of the offender. See People v. Rizzo , 842 N.E.2d 727, (2005). But see: People v. Beach , 195 Cal. Reptr. 381 (Cal. Ct. App. 1983) (Banishing defendant from the community were she lived for 24 years unconstitutional); State v. Wright , 739 N.E.2d 1172 (Ohio Ct. App. 2000) (Prohibition against entering any place where alcohol is given away or sold too broad because restricts defendant from grocery stores and vast majority of all residences).
Association Restrictions generally upheld if: related to the crime for which offender was convicted; intended to prevent future criminal conduct, or bear reasonable relationship to offender’s rehabilitation. State v. Allen , 634 S.E.2d 653, 370 S.C. 88 (2006) State v. Hearn , 128 P.3d 139 (Wash. App. 2006) (Prohibition against associating with known drug users constitutional because it directly relates to the crime for which defendant convicted)
Condition prohibiting contact with “persons of disreputable character” needs to be more specific as to types of individuals or specific individuals contemplated in order to give probationer fair warning - Jones v. State , 41 P.3d 1247 (Wyo. 2002); Delegating to probation officer unconditional and unlimited authority to regulate contact between husband and wife is unduly restrictive of liberty - Dawson v. State , 894 P.2d 672 (Alaska Ct. App. 1995); but see People v. Jungers , 127 Cal. App.4th 698 (Cal. App 2005) (probation condition prohibiting contact with wife upheld where wife was victim of assault); Court denied probation where probationer completed drug court knowing she could not associate with felons, yet, after drug court, again associated with felons. Court noted that probationer “put herself back in a position to be involved with people that she was already trained and educated on through Drug Court not to be with.” - Malone v. State , 2012 Ark. App. 280, (2012).
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Participant is in drug court as special condition of probation and has signed a waiver giving consent to the search of his residence, vehicle or person without probable cause or reasonable suspicion. Does this violate the 4 th Amendment?
Probationers do not enjoy the absolute liberty to which every citizen is entitled. Morrissey v. Brewer , 408 U. S. 471 (1972) Warrantless search of probationer’s residence was “reasonable” within meaning of Fourth Amendment because conducted pursuant to detailed administrative regulations related to probation. Griffin v. Wisconsin , 483 U.S. 868 (1987) Probationer has diminished expectation of privacy. Warrantless search of probationer’s residence supported by reasonable suspicion and authorized by a condition of probation was reasonable within meaning of Fourth Amendment. Neither a warrant or probable cause required. Because search was supported by individualized suspicion, Court did not consider whether a suspicionless search by LEO would be reasonable. United States v. Knights , 534 U.S. 112 (2001)
Samson required to sign search waiver as a condition for parole. LEO stopped Samson knowing he was on parole and believing (incorrectly) there was a warrant for his arrest. Found drugs. Search upheld based solely on mandatory search waiver required as condition for parole. Reasonable suspicion not required. Goes further than Knights because does not make a finding of reasonableness, but search cannot be for harassment
Participant is in drug court pre-plea diversion and has signed a waiver giving consent to the search of his residence, vehicle or person without probable cause or reasonable suspicion. Does this violate the 4 th Amendment?
Terry v. Superior Court , 86 Cal. Rptr. 2d 653, 653 (Cal. Ct. App. 1999) 4th Amendment waiver is an improper condition in diversion case, without statutory authority. In re York , 40 Cal. Rptr. 2d 308, 308 (Cal. 1995) 4th Amendment waiver is an improper condition in diversion case, without statutory authority. United States v. Scott , 450 F.3d 863, 863 (9th Cir. 2006) Search waiver is probably improper when a person is on bond.
You institute a drug court readiness program and as a condition of pre-trial release, you require any person who has been arrested for drug possession or use and /or DWI to undergo random drug urine screens and breath tests. Is this a violation of the 4th Amendment? Can you require any person who has been arrested for drug possession or use and /or DWI to submit to a RANT? If so, what safeguards should be in place to ensure all constitutional rights are protected?
No violation of Fourth Amendment by conducting drug/alcohol testing or ordering defendant not to consume alcohol or drugs if reasonably related to underlying crime or future criminality. People v. Beal , 60 Cal. App. 4th 84 (Ct. App. 1997); United States v. Knights , 534 U.S. 112 (2001). Court can require testing to see if defendant following court order. Strickland v. State , 686 SE 2d 486 (Ga. App. 2009). (Court-imposed ignition interlock device as condition of pretrial release proper where defendant had three prior DWIs, blew .326% in pending case because it rationally related to public safety.)
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