The government must show PC and exigent circumstances for an entry into the home. The three justice opinion in Segura urged by the government is not followed because it makes no sense and is now often criticized. United States v. Jones, 2009 U.S. Dist. LEXIS 110251 (M.D. Fla. October 8, 2009):
To support its argument that it was not necessary to establish exigent circumstances, the Government cites to Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L. Ed. 2d 599 (1983). The Government claims Segura distinguished between a search of a dwelling and a seizure of a dwelling to preserve the status quo and held that “securing a dwelling on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.” (Doc. 67, p.15). Interestingly, the portion of the Segura decision cited by the Government is in a section of the opinion joined in by only two Justices. Additionally, this Court notes that the portion of Segura relied upon by the Government has been sharply criticized. See United States v. Wright, 696 F.Supp. 164, 170, n.8 (E.D. Va. 1988) (citing Dressler, A Lesson in Incaution, Overwork, and Fatigue: The Judicial Miscraftsmanship of Segura v. United States, 26 Wm. & Mary L.Rev. 375, 422 (1985) (“Segura is a disaster as a written opinion”); Note, The Securing of the Premises Exception: A Search for the Proper Balance, 38 Vand.L.Rev. 1589 (1985) (“The most distressing feature of Segura is that the Chief Justice has created an exception [to the warrant requirement] without identifying any corresponding need”)); see also 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.5(c), pp. 417-424 (4th ed. 2004).
In Search and Seizure, Professor LaFave suggested that the Segura Court did not really approve of warrantless entry absent exigent circumstances. Id. at 419. He noted that the majority “parse[d] the police conduct in Segura into its ‘seizure’ and ‘search’ components, and with respect to the ‘seizure’ part [was] not really taking into account the fact of entry.” Id. To support this proposition, LaFave quoted the following passage in Segura:
Securing of the premises from within, however, was no more an interference with the petitioners’ possessory interests in the contents of the apartment than a perimeter “stakeout.” In other words, the initial entry-legal or not-does not affect the reasonableness of the seizure. Under either method-entry and securing from within or a perimeter stakeout-agents control the apartment pending arrival of the warrant; both an internal securing and a perimeter stakeout interfere to the same extent with the possessory interests of the owners.
Id. at 419-20 (quoting Segura, 468 U.S. at 811, 104 S.Ct. at 3389). LaFave noted that the Segura Court “only said that the seizure aspect (which, were it to exist in isolation, would mean maintaining control without entry) is permissible on probable cause even if there are not exigent circumstances.” Id. at 420. LaFave elaborated that the four dissenters appeared to agree on that point as they stated they assumed “impoundment would be permissible even absent exigent circumstances if it occurs ‘from the outside’ — when the authorities merely seal off premises pending the issuance of a warrant but do not enter.” Id. (quoting Segura, 468 U.S. at 824, n. 15, 104 S.Ct. at 3396).
This Court is persuaded by the analysis provided by LaFave. Moreover, given the criticism of Segura, and the fact that this Court was unable to locate (and the Government did not cite) any Eleventh Circuit cases adopting the holding cited by the Government, the Court finds the Government must show both probable cause and exigent circumstances existed at the time the officers entered the homes at 228 and 230 San Jose. As such, the Court must next determine whether exigent circumstances supported the officers’ decision to enter the two homes.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
