Interesting story for our Fourth Amendment experts

Wow... I'm not sure this is even legal...

Woman surrenders Fourth Amendment rights

TFred

By the way, notice Culpeper County... what in the world is in the water out there!?

TFred

I would argue that the right to be left alone cannot be waived. Makes it legally unenforceable.

Huh

Did she have a lawyer? I can't believe they would agree to that.

Like one of the com-mentors said what does this mean for visitors in her home or passengers in her car?

From the referenced article:

Culpeper County Commonwealth’s Attorney Megan Frederick said.... she required Hovey–Smith to waive her Fourth Amendment rights so “anytime we want to enter her home to check for stolen property, we will.”

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Yeah, that sounds like a grand idea.... NOT.

I've seen that type of thing before and in reality, it's part of her probation.
In some states people on parole and probation can be searched at will in the presence of a probation officer.

She never really loses the right but if she chooses to use it, she will have to complete her sentence.

In Chesapeake, that can also be a condition of probation. I suppose if you are caught doing something wrong and are given a choice of joining to jail or being bound by some crazy probation conditions, what are you really going to choose?

It's perfectly legal, as the judge (if he follows SOP set forth by the Va Supreme Court) went through a colloquy with her to ensure that she understood what her rights were, what she was agreeing to have happen if she waived those rights, and that she was freely waiving them without coersion. (Sorry, folks, but holding a prison sentence over her head if she does not chose to waive her rights is not coercion when the alternative in probation supervision. It's actually a boon granted by the state, as they fully intended to lock her away.)

Any attorney will tell you what the options are and what you might reasonably expect by selecting one over another, but they are not (or should not) encourage you towards one option or the other. Your choice, all the way.

She apparently believed they had enough to send her away, and chose the lesser punishment of being allowed to walk about within specified restrictions.

For those that do not believe it, when you are faced with the prospect go ahead to trial and work through the appeals.

stay safe.

All very interesting. I wonder if this agreement "expires" at the end of her suspended sentence, or if she has waived this right for the rest of her life?

TFred

It's also my understanding that the right is only waived during the duration of the probation.

She agreed to it in exchange for knocking off about 90% of a prison sentence. The state did not have to Offer it to her, they could have just stuck her butt in the hoosegow for three years. She counted it as a kindness and so would I in the same situation. (Well, I'd count it as one if I was committed to going straight, that is. If I was going to continue to be a 'menace to society' I'd take the three years so I could get back to my business of rape, murder, arson, and rape.)

Does anyone think she'd have the same 4th Amendment protections in prison that she's giving up on condition of probation? It's Very likely that she'll be subject to fewer intrusive searches during ten years of supervised probation (when probation officers have to drive out to her house) than when prison guards just have to walk down the corridor to her cell in the three years she would serve there.

From the article, it looks like she was on probation for priors when she was convicted. Usually that's an automatic "we're dragging yo butt off to jail" right there.

I understand the line of thinking. But where in the text of the Fourth Amendment does one infer that an individual has the ability or privilege to waive that right?

Traffic law: When I am driving my car and I approach an intersection controlled by a traffic light, if "my" light is green, I have the right to proceed, and the cars that have a red are obligated to stop. The law does not afford me the ability to give up my-right-of-way to those other cars. Not a perfect analogy, but it makes the point. The rights guaranteed us by the Constitution don't seem to me to be something we should be able to trade away for some benefit, much less something that the government offers to "buy" from us as an enticement for a lesser penalty.

It would be interesting to know if there is any precedent in the higher courts for this.

TFred

TFred said:

I understand the line of thinking. But where in the text of the Fourth Amendment does one infer that an individual has the ability or privilege to waive that right?

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Same place in the text that says you MUST exercise your right to free speech, Must own a firearm and Must always invoke 'the Fifth' no matter what questions are posed by the police.

When the police ask, "Would you like to tell me where you were last night at ten o'clock?" you can always waive your Fifth Amendment rights and say, "The wife and I had reservations at Spago's, the head waiter knows us and will vouch for us, his number is 555-555-1212. Here, feel free to use my phone, press 63 for speeddial. And I can highly recommend the quail, it's to die for."

You always have the right, the freedom, and the privilege to either invoke or not invoke your rights.

Fallschirmjäger said:

Same place in the text that says you MUST exercise your right to free speech, Must own a firearm and Must always invoke 'the Fifth' no matter what questions are posed by the police.

When the police ask, "Would you like to tell me where you were last night at ten o'clock?" you can always waive your Fifth Amendment rights and say, "The wife and I had reservations at Spago's, the head waiter knows us and will vouch for us, his number is 555-555-1212. Here, feel free to use my phone, press 63 for speeddial. And I can highly recommend the quail, it's to die for."

You always have the right, the freedom, and the privilege to either invoke or not invoke your rights.

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You're trying to push the rope here.

There is a big difference between choosing to answer questions, and choosing to no longer have the option to not answer questions.

Choosing not to speak your mind, and choosing to not have the right to speak your mind.

Etc.

Significant difference.

TFred

The right exists. Period. Nothing can eliminate the existence of the right.

What we should be discussing is a person who has chosen of their own free will not to exercise that right.

Given the totality of your personal circumstances, would you stand up for the ability to exercise the right (once you completed your prison sentence) instead of waiving it for a defined period of time as one of the conditions for remaining out of prison?

I have no relatives, and nobody is dependant on me for their support or care. (Yes, I am confirming what has always been suspected: I do live in a cave from which I emerge grouchy and grumpy.) I also have loyal minions who will gleefully ransack said cave and carry away all of my toys and some of the other accumulated detrius before the landlord comes to clean the place out and rent it to someone else. The factors I would consider in deciding how to act are going to be vastly different than those who have responsibilities to others.

stay safe.