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If Visiting One in Jail, Be Careful What You Bring With You!

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Our office is often beset with requests to smuggle in items to a person in custody when we visit the client. The client's family may want us to take a video of the inmate, give him glasses or even money.

While we cannot do this, the request is often made because many know that attorneys often are allowed face to face meetings with an inmate wherein the attorney can shake the client's hand, hand him documents to review and have the client draw diagrams or pictures. In other words, often an attorney does not need to speak to the client via a handset behind a thick pane of glass.

For non-attorneys there are certain restrictions. The following recent case exemplifies why it is important to protect oneself when visiting a jail.

On September 29, 2011, the Second District Court of Appeals upheld the conviction of Brian Boulter for possession of a controlled substance, among other charges, after he was arrested while visiting a friend at the Men's Central Jail in Los Angeles.

When one such as Boulter enters the jail, there is a sign that states: "Warning: persons entering this area are subject to the laws affecting a custody facility. You and your possessions are subject to search at any time." A sign was also posted by the lockers for visitors, saying that no cameras, cell phones, recording devices or purses were allowed inside the visitor's center.

Boulter had a camera with him inside the visitor's center, which is prohibited, so officers at the jail arrested him for that. Upon searching him, they also found keys in his pocket that were to two lockers for visitors to the jail. The lockers were on jail property. The officers then searched the lockers and found a substance resembling methamphetamine, twelve pills and a scale.

Boulter was then charged with possession for sale of a controlled substance (Health and Safety Code 11378), as well as three counts of bringing drugs into a jail (Penal Code 4573).

Under Penal Code 1538.5, Boulter moved the trial court to suppress the evidence found in his locker, arguing that they were seized without probable cause or a warrant in violation of his Fourth Amendment right against unreasonable search and seizure.

The issue became whether the search was a valid administrative search since, indeed, a camera does not suggest possession of drugs and therefore, probable cause to search would be lacking. Boulter argued that a warrant should have been obtained before searching the locker, as there was no emergency and he did not consent to the search. He also argued that he had a reasonable expectation of privacy in the lockers.

The trial court denied the motion to suppress. The Second District Court of Appeal affirmed, ruling that searches for an administrative purpose may be permissible even if unsupported by probable cause.

In Boulter's case, the search was deemed reasonable because, under the totality of the circumstances, there is a heightened governmental need to maintain security in a jail. The Second District explained that Boulter could not have a reasonable expectation of privacy upon entering jail property and after all, he violated the jail's clearly stated laws by blatantly attempting to smuggle in a camera to visit with his friend.

This ruling is significant for what it seems to warn and which the Court pointedly denied: that warrantless administrative searches may be a pretext for conducting an otherwise invalid criminal investigation and obtaining evidence in violation of California law.


ABOUT THE AUTHOR: GREG HILL
Greg Hill is a criminal defense attorney in Torrance, California. He graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A. 1994) and Loyola Law School (J.D. 1998). Visit his firm's website is at www.greghillassociates.com or call him at (310) 782-2500.

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