WARRANTLESS SEARCHES IN THE WORKS

Some Drug Offenders Temporarily Waive The Right In Plea Deals

COLONIAL HEIGHTS - In an effort to force those involved with drugs to shape
up or ship out, Colonial Heights police will soon begin periodic searches
and seizures of some felony drug offenders without a warrant or probable cause.

Police will perform the searches on offenders who enter into plea
agreements that include a waiver of their Fourth Amendment rights for a
specific period of time, usually between one and two years, said Colonial
Heights Commonwealth's Attorney Michael Lee.

Searches will begin once a list of those who waived their rights is
compiled, which Lee said could be as soon as this week. Lee said he
believes the city is the first to create a method for the police department
to carry out the searches.

The Fourth Amendment waiver policy was implemented in Colonial Heights in
2000 after a 1998 U.S. Supreme Court decision upheld the validity of Fourth
Amendment waivers. Although the waiver has been part of the city's plea
agreements for about four years, until now police had not taken advantage
of it.

"We gave it time for the dust to settle and wanted to make sure our
interpretation of the law was correct," Lee said.

Defendants in any plea agreement involving the use, sale or possession of
drugs may waive their rights in return for attractive probation and parole
deals. The waiver deems it legal for the police to search the person,
vehicle and residence of a felony drug offender at any time.

Lee said the program is designed to monitor offenders during their
rehabilitation, to ensure that the offenders are complying with the law and
to displace those who fail to comply.

"If they know they waved their Fourth Amendment rights, how likely is it
that they're going to still have drugs?" Lee asked his training class of
about 10 police officers recently at the city's public safety building.
"The deterrent will be for them to stay out of Colonial Heights.

"By doing this, we push them out of our city. If they don't comply, they go
to jail or to prison."

Tom Kifer of the Colonial Heights police department said the number of
arrests for drug possession has increased from 150 in 2001 to 256 in 2003.
The number of arrests for drug sales and manufacturing has almost tripled
from 21 to 58.

Kent Willis, executive director of the American Civil Liberties Union of
Virginia, said the organization has concerns about the program.

"If it's the kind of program that is based on scientific research and it
offers a true alternative to incarceration, it may in some instances serve
both the individual and society well," Willis said. "But if it is used as a
harsher form of punishment for those that enter plea bargains, then no
one's best interest is being served. It's a program with very dangerous
potential."

Rebecca Glenberg, the organization's legal director, said such a policy
could open the door to endless efforts to strip away constitutional rights.

"I guess the question is 'What's next?,'" Glenberg said. When you go down
that road, it's hard to see what constitutional rights the state can't
pressure you to give up."

Willis cited concerns about the potential for harassment of those who enter
the plea agreements.

Lee said there are safeguards against abuses. He said he plans to stay
abreast of who is being searched and how often through incident reports
officers complete after every search.

"Those who stay in the same circle of people will have a higher probability
of being searched," Lee said. "This does not mean that they will be
searched every day or every month. They may never be searched.

"People may become concerned because they think we're forcing people to
give up their rights, but we're not," Lee said. "They're agreeing to it as
part of their sentence."

The ACLU suggests that all eyes remain on the program.

"The courts and police ought to be carefully observing what goes on with
this program and the rest of us ought to be watching this program very
carefully," Willis said.

Chesterfield County has a similar plea agreement waiver, in which only the
county's drug court team is involved in the searches, Lee said.

In Colonial Heights, however, even if a felony drug offender leaves
Colonial Heights, he is still subject to being searched in the same fashion
by any other jurisdiction while the waiver is valid.