COMMONWEALTH OF KENTUCKY ) SS: IN THE BULLITT CIRCUIT COURT

COUNTY BULLITT )

COMMONWEALTH OF KENTUCKY )
)
PLAINTIFF ) NOTICE-MOTION-ORDER
)
vs. )
)
BARRY W. RAYNER )
) Case No. 18- CR-00041
DEFENDANT ) DIVISION 1

NOTICE

Please take notice that the undersigned will, on Monday, September 24, 2018 at 10:00

a.m., or as soon thereafter as counsel may be heard, make the following motion and tender the

Order attached hereto.

MOTION FOR CHANGE IN CONDITION OF RELEASE

COMES NOW the Defendant Barry W. Rayner, pursuant to Ky. Const. § 11, exercising

his right to move to proceed with hybrid counsel and move this Court pursuant to Kentucky Rule

of Criminal Procedure (RCr) 4.40 for a change in the conditions of release Ordering participation

in the MCR Program/Drug Testing in the above captioned cause and in support states as follows:

1. On November 30, 2017, the Defendant (hereinafter Mr. Rayner), was arrested and

charged with Criminal Possession of Forged Instrument-1st Degree-I; Possession Controlled

Substance, 1st, Degree, 1st Offense (METHAMPHETAMINE); Possession of Marijuana, Drug

Paraphernalia - Buy/Possess, Convicted Felon in Possession of a Firearm.

2. On or about December 01, 2017, pretrial services was able assess Mr. Rayner, and

confirm his identity. Pretrial also assesses whether the Mr. Rayner constitutes a flight risk and
threat to the community, classifying him as low to moderate and eligible and therefore eligible

to be released on his own recognizance.

3. However, on December 01, 2018, the Bullitt District Court Mr. Rayner’s bond at

$25,000.00 cash or property and further ordered Mr. Rayner subject to “MCR Drug Testing.”

(See Bullitt District Court record of Arraignment, attached hereto as Exhibit A).

4. After Mr. Rayner was released on the Bullitt District Court bond and while on bond, Mr.

Rayner was rearrested on a previous, unknown charge originating from Jefferson County. Mr.

Rayner was subsequently posted bond on the Jefferson County charge and transferred back to

Bullitt County. Thereafter, he was indicted on the above stated Bullitt District Court charges

and arraigned Bullitt Circuit Court.

5. On or about February 05, 2018, Mr. Rayner was again assessed by pretrial services as

low to moderate flight risk and risk to the community and eligible to be released on his own

recognizance, but again, his bond was set $10,000.00 cash $20,000.00 security.

6. However, on February, 2018, Mr. Rayner appeared before the Court and the Court

rejected Pretrial Services assessment. The Court stated it rejected the pretrial assessment and set

bond at $10,000.00 and further Ordered as a condition of bond that Mr. Rayner be subject to

controlled substance testing because he gave a false name to a police officer.

7. However, Mr. Rayner objects to the imposition and Order that he be subject to controlled

substance testing on the grounds that it violates his rights secured under 4th Amendment of the

United States Constitution. Pretrial drug testing is considered a search under the Fourth

Amendment to the U.S. Constitution. Court rulings have determined that it is unconstitutional.

8. The 4th Amendment states that:

The right of the people to be secure in their persons, houses, papers, and effects,
 against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation and

particularly describing the place to be searched, and the persons or things to be

seized.

9. Traditionally, with noncriminal searches—those not conducted for evidence in a trial—

courts determine reasonableness under the 4th amendment through a balancing test. This test

requires courts to balance the need for the search against its intrusion into an individual’s

reasonable expectation of privacy.

10. Pretrial drug screening was pioneered in the District of Columbia in 1984. Testing at the

post-release stage has been challenged in the courts on fourth amendment grounds. In one case,

a defendant who was ordered into pre-trial drug monitoring challenged the Washington, D.C.,

pretrial drug testing program as violating his fourth amendment protections against

unreasonable searches and seizures. The trial court ruled against him, finding that the drug

testing program did not raise issues of “constitutional dimension” Berry v. District of Columbia,

No. 84–2659, slip op. At 7 (D.D.C. June 14, 1985)]. In 1987 the court of appeals found that

pretrial drug monitoring amounted to a search and seizure under the fourth amendment

and reversed the trial court ruling. Berry v. District of Columbia, 833 F.2d 1031 (D.C. Cir.

1987).

11. The Fourth Amendment protects “the people. . . against unreasonable searches and

seizures.” The Supreme Court has held that “state-compelled collection and testing of

urine...constitutes a ‘search’ subject to the demands of the Fourth Amendment.” Vernonia

School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (citing Skinner v. Ry. Labor Executives’

Ass’n, 489 U.S. 602, 617 (1989)).

 12. In United States v. Scott, 450 F. 3d 863 (9th Cir. 2005), a Federal District Court

considered the question of whether a pretrial detainee waives his 4th Amendment secured right

when, as a condition of his pre-trial release, he consented to random drug testing and

having his home searched without a warrant at any time by any peace officer.

13. The majority in Scott, held that pre-trial releasees cannot consent to conditions of

searches that are not subject to the same standard as an ordinary citizen, probable cause.

Scott, 450 F.3d at 874-75 (Bybee, J., dissenting).

14. The Commonwealth of Kentucky presently operates its pretrial services program through

coercion and the apparent notion that in order for a pretrial detainee to exercises their

constitutionally secured right to bail under the Kentucky Constitution (Section 16) or the United

States Constitution (8th Amendment), he or she must first consent to surrender or waive his

constitutional right to be secure from search and seizure without probable cause secured under

Section10 and the 4th Amendment of the Kentucky and United States Constitution, respectively.

15. The issue of whether or not the courts of the Commonwealth of Kentucky can order a

search on less than probable cause, through a third party, Premier Integrity Solutions, Inc., a

private corporation, of an individual pretrial detainee, after the posting of a cash bond and post-

release while awaiting trial. This issue appears to be a case of first impression.

16. In fact, it was a case of first impression of the Scott court as well:

“This issue is one of first impression in our circuit. Somewhat surprisingly, it

is an issue of first impression in any federal circuit and the vast majority of

state courts. A lack of binding precedent does not, of course, excuse us from

deciding a difficult issue when, as here, it is squarely presented. (Scott, 450

F.3d 873).
 17. Montana state court has already found that the panel majority's opinion in Scott, id.,

applies to Montana's pretrial-release procedures, holding that "if the government cannot make

the requisite special needs showing, law enforcement needs to have probable cause to search a

pretrial individual." State of Montana v. Hurlbert, No. DC-05-242, 2006 Mont. Dist. LEXIS 19,

at *13 (Mont. 18th Jud.Dist. Ct. Jan. 30, 2006).

18. Consequently, Mr. Rayner respectfully requests this Court change its condition of release

to remove the unconstitutional requirement that Mr. Rayner participate in the MCR program

and submit to drug testing, where giving a false name to a police officer has no reasonable

relationship to the bond condition .

19. The “Special Needs Doctrine” is employed by courts to permit law enforcement the right

in emergency cases to conduct searches and seizures without a warrant and without probable

cause. These emergencies cases have to be in the interest of protecting public safety.

20. Generally, to qualify as a “special need,” the program for suspicionless searches or

seizures must satisfy a government interest beyond “ordinary criminal wrongdoing.” City of

Indianapolis v. Edmond, 531 U.S. 32, 41, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

21. In the 1967 case Camara v. Mun. Court , the Court stated that the purpose of the Fourth

Amendment, enforceable against the states through the Fourteenth Amendment, was to protect

citizens against “unreasonable searches and seizures.” 387 U.S. 523, 528 (1967). Outside of

carefully defined contours, an unconsented, warrantless search is per se unreasonable. Id.

at 528–29.

22. The Fourth Amendment to the United States Constitution and Section 10 of the

Kentucky Constitution protects citizens from unreasonable and unwarranted searches and

seizures. See e.g. Commonwealth v. Hatcher, 199 S.W.3d 124, 126 (Ky. 2006) (recognizing
Ky. Const. § 10 as a corollary to U.S. Const. amend. IV.)

An order setting bail is, at best, interlocutory in nature. Under Kentucky Rule of Criminal

Procedure (RCr) 4.40, a defendant may apply for a change in the conditions of release "at any

time" before trial.

WHEREFORE, based on the foregoing the Defendant prays this Court grant the Defendant’s

Motion to Change the Conditions of Release

Respectfully Submitted,

_______________________
Barry W. Rayner
7606 Cedar Hollow Dr.
Louisville, KY 40291
(502) 239-2597
 CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing was served via U.S. Mail

postage prepaid/hand delivered , this _____day of __________ , 2018, by certified mailing same

to:

John Wooldridge

c/o

Bullitt County Attorney

300 S Buckman St.

Shepherdsville, KY 40165

CERTIFIED MAIL#:____________________________________

_________________________
Barry W. Rayner
7606 Cedar Hollow Dr.
Louisville, KY 40291
(502) 239-2597
 BULLITTCOUNTY CIRCUIT COURT
CASE NO. 18- CR-00041
Division 1

COMMONWEALTH OF KENTUCKY PLAINTIFF

v.

BARRY W. RAYNER . DEFENDANT

ORDER

Motion having been made and the Court being sufficiently advised: IT IS HEREBY

ORDERED THAT DEFENDANT’S MOTION TO CHANG RELEASE CONDTIONS IS

GRANTED

____________________________________
JUDGE BULLITT CIRCUIT COURT

DATE_______________________

TENDERED BY:

_______________________
Barry W. Rayner
7606 Cedar Hollow Dr.
Louisville, KY 40291
(502) 239-2597