Defendant was an airman who was believed by his landlord to have skipped out on rent and abandoned the premises. He wasn’t around and couldn’t be found. The landlord entered and found it needed a lot of repairs and appeared abandoned. He called defendant’s NCOs who came to the apartment as Air Force representatives to the community to see what was going on. The landlord unquestionably had a right of entry under the lease, and this extended to making the NCOs his “representative.” They did not enter for any regulatory or law enforcement function. In the apartment, they found a piece of a B-1 bomber that was missing from the air base. The entry was valid. United States v. Irizarry, 72 M.J. 100 (C.A. A.F. 2013):
B. Reasonableness of Entry as Command Representatives
MSgt Saganski’s and TSgt Zenor’s status as “government agents” acting in their “official capacity” triggered Appellant’s Fourth Amendment rights. However, this status was based solely on the fact that MSgt Saganski and TSgt Zenor are command representatives performing quintessential command functions — looking out for one of their airmen and maintaining good relations with the local community. See, e.g., Dep’t of the Air Force, Instr. 36-2618, The Enlisted Force Structure ¶ 4.1.9 (Feb. 27, 2009) (providing a mandatory duty for all NCOs to “be familiar with subordinates’ off-duty opportunities and living conditions”); id,. at 5.1.13 (stating the mandatory duties of senior NCOs to “[p]romote responsible behaviors within all Airmen” and “[r]eadily detect and correct unsafe and/or irresponsible behaviors that negatively impact unit or individual readiness”).
Although the NCOs were members of the United States Air Force with supervisory responsibilities over Appellant, they were not acting for a law enforcement or even a regulatory purpose. They were not seeking evidence of a crime or a violation of some regulation. Cf. Chapman, 365 U.S. at 616-18 (striking down a warrantless entry by police to search for evidence of a crime); Camara v. Municipal Court, 387 U.S. 523, 535-39 (1967) (striking down some warrantless administrative searches). Rather, they were acting as military leaders with at least two purposes related to their command function: (1) to minimize possible adverse consequences — loss of his living quarters and overcharging for damages to his apartment — to a subordinate; and (2) maintaining a good relationship between the Air Force and the civilian community by assisting a landlord who did not want to pursue civil legal remedies against a military member. Rigid application of Fourth Amendment case law from other jurisdictions to the conduct at issue would fail to account for MSgt Saganski’s and TSgt Zenor’s unique “official” duty, as senior NCOs, to be apprised of their subordinates’ behavior and to look out for the well-being of their men and women.
In this context, MSgt Saganski and TSgt Zenor acted reasonably.10 Moreover, where, as here, command representatives entered a subordinate’s off-base residence (1) in order to effectuate their command responsibilities, and (2) with no law enforcement purpose and no expectation that a crime had been committed, or that evidence would be found, it would be unreasonable to expect command representatives to seek a warrant prior to entering. …
"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.
