Police touching defendant’s car when the police looked in it and saw a gun wasn’t a trespass under Jones, and then they forced their way in. Jones involved installing a tracking device on the car. This is not a “ringing endorsement” of what happened there, but the court’s not suppressing because the contact with the car was incidental and didn’t involve a trespass. United States v. Gorham, 2024 U.S. Dist. LEXIS 4953 (D.D.C. Jan. 10, 2024):
In this case, Metropolitan Police Department (“MPD”) officers peered into the defendant’s unoccupied parked car with the aid of a handheld flashlight, observed a weapon, and forced the car open in order to recover it. Defendant’s attempt to suppress the firearm began as a vague smorgasbord of theories, but it eventually crystallized into a motion based primarily on the Supreme Court’s decision in United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), and the theory that the officers committed a common-law trespass in violation of the Fourth Amendment by touching the car for the purpose of gathering information. The Court finds that the Jones decision does not go so far as to reach the officers’ non-invasive interactions with the defendant’s car; nor was the unoccupied automobile “seized” by the officers in violation of the Constitution. While this opinion should not be read as a ringing endorsement of the MPD operation at issue, the motion to suppress will be denied.
. . .
The same simply cannot be said here. While the officers’ occasional use of their hands may have facilitated or improved their ability to look inside the car, the body-worn camera footage shows that physical contact was not necessary to enable Officer Schemmel to look inside, and indeed, he was not touching the car when he saw the weapon and signaled “1-800.” Defendant has thus failed to establish that the only alleged constitutional violation — touching the car — communicated any information that was not otherwise available through the officers’ lawful use of their flashlights.
The Court’s decision should not be interpreted as a license for officers to descend on a neighborhood and physically engage with the parked cars in any fashion. Whether other forms of conduct, such as climbing on top of a vehicle to peer inside, would constitute a “search” under Jones is not before the Court. But it should be noted that a court in the District of Columbia recently held that it was. See Tr. of Proceedings, United States v. Alexander, Case No. 2021 CF2 002232 (D.C. Sup. Ct. Oct. 30, 2023), Ex. in Supp. of Def.’s Mot. [Dkt. # 36-8] at 8 (“I therefore find and conclude that by climbing onto the defendant’s car and putting their hands and their faces right up on the windshield to look inside for the purpose of seeing more inside than they had been able to see just from standing on the street, on the outside of the car, that that was a search within the meaning of the Fourth Amendment.”). The Court simply holds today that an officer’s mere touching of a window in the course of a flashlight-enabled visual inspection does not constitute a “search” for purposes of the Fourth Amendment and United States v. Jones.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"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
"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]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"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)