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Judge hears case over police searches of pretrial suspects

A federal judge in Oakland, California has taken two motions -- for dismissal and an injunction -- under submission in a case to determine the constitutionality of rules enforced by the San Francisco Sheriff's office in how it treats pretrial releasees.

SAN FRANCISCO (CN) — People awaiting trial in San Francisco may find themselves forced to accept onerous conditions at the hands of the sheriff’s office if they want to avoid jail time before they get to court.

At issue are two rules imposed upon people in pretrial release in San Francisco by the sheriff’s office which the American Civil Liberties Union of Northern California argues are unconstitutional. Utilizing electronic monitors managed by Sentinel Offender Services, an Anaheim, California-based criminal services company, releasees are allowed to return to their homes rather than being forced to cool their heels in jail as they await trial.

The case, Simon et al v. City and County of San Francisco et al, was filed September 2022. Thursday’s hearing involved arguments for a motion to dismiss from the defendants, the city and county of San Francisco and Sheriff Paul Miyamoto, and a motion for preliminary injunction from the plaintiffs, represented by the ACLU.

The problem, the ACLU insists, is that as a condition, releasees must consent to two rules out of 23 which govern the terms of their release. In addition to relatively routine requirements such as keeping their monitors charged and refraining from drug and alcohol use, they must also give permission to police searches at any time and the sharing of their monitoring data.

In some cases, releasees have found themselves stopped randomly — although the ACLU states it doesn’t know how many people have experienced this as law enforcement agencies aren’t required to report this — for “suspicionless” warrantless searches of themselves, their homes and their vehicles. The ACLU also says the search rule is illegal because it makes defendants fear going to jail and are therefore unlikely to complain about unfair treatment.

In an age where many Americans are already uneasy about the amount of private information about themselves being traded via social media, one of the rules carries an extra punch. Electronic monitors continuously relays a releasee’s GPS information for the full time they must wear them. This information is then stored on Sentinel’s servers and can be shared with any interested law enforcement agencies. according to the ACLU. The agreement between the sheriff’s office and Sentinel “does not address what happens to an EM participant’s data once their participation in the program has ceased.”

While he didn’t appear to lean one way or the other, U.S. District Judge Jon Tigar warned the defendants at the beginning of the hearing “If I decide to enjoin the application of this policy, the defendants should be aware that they’ on notice today that that might happen. So when the court issues its decision, and the defense were to come to court and say ‘oh my gosh, this requires a huge adjustment on our part,’ you won’t be starting from scratch.

“Because if that’s the ruling and, I’m not suggesting that I know it’s gonna be,” Tigar continued, “but if that’s the ruling, it will be because I will have concluded that the constitutional rights of persons who are in the San Francisco Superior Court are being violated. Probably.”

Plaintiffs’ attorney Malavika Lobo noted that “Nothing in this injunction would prevent those conditions from continuing to be imposed by the Superior Court. It would only prevent the extra judicial imposition enforcement of those rules by the sheriff.”

The defense argued that the plaintiffs’ request for a removal of the two rules would apply to everyone in the class.

“And the class that plaintiffs have proposed is about as broad as you can get,” said defense attorney Kaitlyn Murphy. That creates a problem for the plaintiffs, she continued, because the courts need to consider the facts around a particular individual’s criminal case.

Tigar wondered why that was the case.

“As I understand plantiffs’ argument, a superior court is free to engage in a wide range of inquiry about whether a particular defendants expectation of privacy is lower because for example, they are on electronic monitoring six months ago but that would be the different process than the one that's being used now.”

The judge took both motions under submission. A decision isn’t expected for another four weeks.

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