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Iowa Law Review

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The Fourth Amendment serves an important constitutional function. It protects the privacy of Americans from intrusions on their personal security. Few rights are held more sacred. When a person is arrested and faces the real likelihood of pretrial detention in jail, the person risks not only a reduction in his privacy rights, but also a loss of his liberty. In such circumstances, the arrested person should be able to bargain away some of his Fourth Amendment rights in exchange for the additional freedoms associated with release to home.

Undoubtedly, defendants forced to choose between incarceration and Fourth Amendment rights will almost always choose to forego their Fourth Amendment protections. But these rights are theirs to value and to bargain away. The Eighth Amendment, the Fourth Amendment, the Bail Reform Act, the unconstitutional conditions doctrine, and basic offer-and acceptance principles of contract law will limit the scope of such waivers and, hence, prevent the government from abusing a pretrial defendant's vulnerability to waive his rights. Accordingly, when, as part of a bail hearing, a neutral magistrate judge finds that a federal criminal defendant voluntarily and knowingly chooses to waive (at least some of) her Fourth Amendment rights in favor of pretrial release, and also determines that such a waiver constitutes the least-intrusive means of ensuring that the defendant will appear at trial and in the meantime not endanger witnesses or the public, such a waiver is legally valid and should be permitted, if not encouraged.



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