People For the American Way: Confirmed Judges, Confirmed Fears: Two Trump Circuit Judges Rule that There is No Remedy for a Violation of a Homeowner’s Privacy Rights by Elliot Mincberg discussing this case: CA6: Officer spent 90 minutes at plaintiff’s house on the curtilage trying to get him to come out for a probation breath test; that violated 4A but officer gets QI (posted 10/17).
The author’s point is better addressed maybe to SCOTUS and not the courts of appeals. If, however, they were to more readily find something “clearly established” instead of always trying to dodge the issue, citizens would prevail more often. SCOTUS in the last 15 years never decided a “not clearly established” case it didn’t like.
Also, this is a product of probation searches. In my experience, LEOs and POs put no stock in any privacy rights of probationers and think all bets are off. To me, that’s the real problem. If you’re not on probation, you might get a fairer shake, but on probation: not at all because you are fair game for whatever they want to do with your property and person. I’ve had dozens of probation search cases and that’s the pattern I’m seeing. At the probation or parole revo hearing: “A. I can search all his personal property. That’s what his probation/parole conditions say. Q. That’s not what our statute says.” And it goes downhill from there.
Another consideration: LEOs are better trained than POs. That’s why they’re a bit more careful. But they want to search, too.