Ryan McGovern – Writing Sample

A police search of a warehouse and rental car on the defendant’s

property at the voluntary consent of the defendant’s spouse was a
permissible search under the Fourth Amendment of the United
States Constitution and Article 26 of the Maryland Declaration of
Rights, and therefore, the lower court properly denied the
defendant’s motion to suppress. Jones v. State, 407 Md. 33, 962
A.2d 393 (2008).

I. Introduction

In recent years a number of courts at the federal and

state level, including the Supreme Court, have narrowly definied

the guarantees of the Fourth Amendment, resulting in a

limitation of protections from searches and seizures.1 In Jones

v. State, the Maryland Court of Appeals found that a warrantless

search of a rental car was permissible because valid consent was

given by a third party.2 Furthermore, the Jones holding

recognized that an individual does not have a reasonable

expectation of privacy on their land solely based on the

presence of a no trespassing sign.3

At issue in Jones, was the defendant’s motion to

suppress, based on an assertion that because police officers did

not yield to a no trespassing sign, the subsequent search of a

warehouse and rental car were in violation of the Fourth

Amendment and Article 26.4 The court found that the presence of

a no trespassing sign did not give the defendant a reasonable

expectation of privacy with respect to entry of his yard.5

Furthermore, the police officers’ persistent knocking on the

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defendant’s front door did not cause the consent given by the

defendant’s spouse to be involuntary.6

II. Historical Development

A. Constitutional Protections From Search and Seizure

The Fourth Amendment of the United States Constitution

prohibits unreasonable searches and seizures by governmental

actors.7 With limited exceptions, the amendment requires that

search warrants be judicially sanctioned and supported by

probable cause.8 Article 26 of the Constitution of Maryland

provides additional protections against searches and seizures

without oath or affirmation.9 In Jones, the court recognized a

long history of Maryland cases which have held that Article 26

of the Maryland Declaration of Rights is to be interpreted in

pari materia with the Fourth Amendment.10

B. Expanding Exceptions to the Warrant Requirement of

the Fourth Amendment

Aside from only a few exceptions, the Fourth Amendment

prohibits warrantless searches and seizures.11 Voluntary consent

is recognized by the courts as one of these exceptions.12 In

Scott v. State, the court held that police officers conducting a

“knock and talk” did not violate the Fourth Amendment rights of

the defendant when they conducted a search of his hotel room

after the defendant had given them permission to do so.13 The

court justified allowing “knock and talk” on the basis of it

Ryan McGovern – Writing Sample

being a practical necessity to carry out police business.14

Additionally, the court identified a standard based on the

totality of the circumstances to evaluate whether consent is

given voluntarily.15

United States v. Santana further expanded the scope of

exceptions to the Fourth Amendment.16 The Santana decision

classified the front of a dwelling house as a public place, thus

subjecting it to a much lower standard of protection than

traditionally given to a home under the Fourth Amendment.17 The

decision cited the need of police officers to have the ability

to follow suspects in “hot pursuit” and the need to act quickly

to ensure justice.18

Furthermore, in Oliver v. United States the court broadly

defined open fields as land with no reasonable expectation of

privacy.19 The majority held that the protections of the Fourth

Amendment did not extend to open fields because open fields do

not provide the setting to conduct the types of activites meant

to be shielded from government intrustion by the Fourth

Amendment.20

Following the trend of cases weaking Fourth Amendment

guarantees, in United States v. Matlock, the court once again

favored practicality in holding that consent to search given by

one who, based on mutual use, has common authority over a

premises is valid against the absent, non-consenting person.21

Petition Number 1126566

The majority overcame a tough dissent which found the exception

in violation of the Fourth Amendment.22 Despite meeting one of

the exceptions to warrantless search and seizure, the dissent

found that there had been plenty of time and opportunity to

obtain a valid warrant without negatively effecting the outcome

and therefore, a proper warrant should have been obtained.23

Nonetheless, the majority allowed the exception to stand and

stressed that the consenter’s knowledge of their right to refuse

the search was irrelevant.24 The court justified this decision

based on the impracticality of proving the person’s knowledge of

their rights at trial.25

III. Instant Case

In Jones, the Maryland Court of Appeals was given an

opportunity to evaluate a warrantless search and seizure

conducted on the basis of a valid consent given by a person

other than the defendant.26 James Desmond Jones was convicted of

second degree murder and use of a handgun in the commission of a

crime of violence.27 At trial, the court used evidence obtained

from a police search of a rental car in a warehouse located on

the property occupied by Jones and his wife.28

The police linked several calls made to a murder victim

shortly before his death to a phone owned by the defendant’s

wife, Tammy Jones.29 On January 25, 2006, police detectives went

to the Jones home to investigate the murder.30 As the officers

Ryan McGovern – Writing Sample

entered the property and approached the home, they walked past,

but did not notice a no trespassing sign.31 After the officers

persistently knocked on the Jones’ front door for several

minutes, Tammy Jones answered.32 The officers identified

themselves and the purpose of their visit.33 Mrs. Jones asked

the officers to step into a nearby warehouse, rather than inside

the home.34

Inside the warehouse, Mrs. Jones willingly cooperated and

answered the officers’ questions.35 One of the officers asked

permission to look inside a rental car that Mrs. Jones had

mentioned.36 Mrs. Jones agreed and left for several minutes to

retrieve the keys.37 Mrs. Jones gave the keys to one of the

officers, who opened the car and discovered what appeared to be

blood stains and a bullet hole.38 The officers had the car towed

to the police station and later that day obtained a search

warrant.39

The defendant moved to suppress the evidence seized by

police on January 25, 2006 from the defendant’s property.40 He

argued that the police had trespassed on his property, and

therefore, the search of the vehicle was illegal.41 The trial

court denied the motion to suppress, after which the defendant

was found guilty of second degree murder and use of a handgun in

the commission of a crime of violence.42 Defendant received a

sentence of twenty five years on the murder charge and twenty

Petition Number 1126566

years on the handgun charge, to be served concurrently.43 On

appeal by the defendant, the Maryland Court of Special Appeals

affirmed the lower court’s decision, holding that despite the no

trespassing sings, the defendant did not have a reasonable

expectation of privacy with respect to his yard or front door,

and that his wife had voluntarily consented to the search.44

The Maryland Court of Appeals granted the Jones’ petition

for writ of certiorari to consider whether the police officers

violated the Fourth Amendment or Article 26, and whether the

search of the property was the product of an involuntary

consent.45 The Court of Appeals limited its review to the

evidence presented at the suppression hearing and deferred to

the trial court’s factual findings.46 The court found that there

was no violation of the defendant’s Fourth Amendment or Article

26 rights.47 The court relied on the Supreme Court decisions of

Santana, holding that the threshold of a home is not a protected

area when voluntarily exposed, and Oliver, holding that a no

trespassing sign on open land does not create a reasonable

expectation to privacy.48 The Jones ruling also relied on the

Maryland Court of Appeals decisions, Scott v. State and Brown v.

State, which upheld the police procedure of “knock and talk” as

lawful under Article 26 and the Fourth Amendment, and further

held the facts of Jones to be outside the scope of “knock and

talk.”49
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The Court of Appeals relied heavily on Matlock to find

that Mrs. Jones gave consent voluntarily.50 The Matlock court

recognized a valid consent as an exception to the rule that

warrantless search and seisure is per se unreasonable and

further went on to hold third-party consent based on mutual use

of property as valid.51 Based on Mrs. Jones’ voluntary and valid

consent, the Maryland Court of Appeals held that the search and

seizure was permissible.52

IV. Analysis

A. Weakening of Fourth Amendment Protections

In Jones, the court effectively limited the Fourth

Amendment protections from searches and seizures by

misconstruing the holdings of Santana and Oliver.53 While the

decisions of Santana and Oliver limit Fourth Amendment

protections, these cases could only further the decision of the

Jones court by an extremely broad interpretation of their

holdings.54

The Jones ruling follows Santana by favoring practical

reasons for allowing exceptions to the Fourth Amendment,

including a necessity to seize property before it can be moved

or destroyed.55 However, the Jones decision incorrectly

interprets the ruling in Santana by holding that the threshold

of a home is not a protected area when voluntarily exposed.56

The facts of Santana differed in that the defendant’s front door

Petition Number 1126566

had been open and she was seen standing in the doorway by police

officers.57 In order to allow a deviation from the guaranteed

protections of the Fourth Amendment, the Santana court defined

the front door of a home as a public place.58 The Court of

Appeals in Jones supports the notion that individuals should not

expect the door of their home to be free from members of the

public, and therefore, have no reasonable expectation of privacy

there either.59

Furthermore, the Jones court incorrectly applies the

Oliver decision in holding that the presence of a no trespassing

sign does not subject land to a reasonable expectation of

privacy.60 The Court of Appeals interpreted the Oliver holding

which excluded privacy rights in open land as applying to the

land surrounding a house.61 In doing so, the court adopts a

trend mentioned in Oliver which denies application of a bright-

line test in favor of a more practical application of individual

expectation of privacy.62

B. Determining the Validity of Voluntary Consent

The ruling in Jones demonstrates the concept that

voluntary consent given with actual or apparent authority to do

so, is a permissible exception to the warrant requirement of the

Fourth Amendment.63 The court embraced the holding in Scott

which set the standard of evaluating the validity of the consent

based on the totality of the circumstances.64

Ryan McGovern – Writing Sample

Noting the possibility of inconsistent judgements in

using such an approach, the Scott court nonetheless found a case

by case evaluation both practical and more likely to produce

fair results.65 Unlike many states which embrace per se rules,

the Maryland law identified by Scott requires a general

evaluation of the circumstances mostly because of the practical

difficulties in meeting burdens of proof at trial.66

Additionally, by upholding the consent to search given by

the defendant’s wife, the Jones holding follows and emphasizes

the decision of Matlock.67 Because Mrs. Jones and her husband,

the defendant, shared the warehouse for their business, his

legal and equitable interest in the property is irrelevant.68

The Jones court correctly applied the “mutual use” standard

created by Matlock to determine that Mrs. Jones had the valid

authority to consent to the search.69

V. Conclusion

While the decision in Jones does not deviate greatly from

the history of case law which has developed and defined the

Fourth Amendment, the effect of the reasoning behind the ruling

strengthens a trend of recent cases which have diluted Fourth

Amendment guarantees.70 In allowing increasingly broad

exceptions to permit warrantless searches and seizures, further

dilution of the Fourth Amendment to the Constitution of the

United States is inevitable.

Petition Number 1126566

The holding in Jones, as well as other recent case

holdings have not only decreased the protections of the Fourth

Amendment, but also reserved far more discretionary power to

government officials conducting searches and seizures.71 Leaving

such matters to individual discretion will without doubt lead to

an abundance of cases concerning Fourth Amendment issues and is

certain to clog dockets around the country for years to come.

Ryan McGovern – Writing Sample

Endnotes

1
See Oliver v. United States, 466 U.S. 170 (1984); United States

v. Santana, 427 U.S. 38 (1976); United States v. Matlock, 415

U.S. 164 (1974).

2
Jones v. State, 407 Md. 33, 53, 962 A.2d 393, 404 (2008).
3
See id. at 38-39, 962 A.2d at 395-396.
4
See id., 962 A.2d at 395-396.
5
See id. at 45-46, 962 A.2d at 399-400.
6
See id. at 53, 962 A.2d at 404.
7
The Fourth Amendment of the Constitution of the United States

guarantees, “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.” U.S. CONST.

amend. IV.
8
See id.; see also Jones, 407 Md. at 51, 962 A.2d at 402-03.
9
Article 26 of the Maryland Declaration of Rights discusses the

law regarding warrants for searches and seizures and provides,

“That all warrants, without oath or affirmation, to search

suspected laces, or to seize any person or property, are

Petition Number 1126566

grievous and oppressive; and all general warrants to search

suspected places, or to apprehend suspected persons, without

naming or describing the place, or the person in special, are

illegal, and ought not to be granted.” M.D. CODE ANN. CONST. art.

26 (West 2009).
10
See Jones, 407 Md. 33, 962 A.2d 393.
11
See id. at 51, 962 A.2d at 402-03.
12
See id. at 51, 962 A.2d at 402-03 (citing Matlock, 415 U.S. at

164); Scott v. State, 366 Md. 121, 782 A.2d 862 (2001).
13
See Scott, 366 Md. 121, 782 A.2d 862 (defining “knock and

talk” as “Police officers, lacking a warrant or other legal

justification for entering or searching a dwelling place,

approach the dwelling, knock on the door, identify themselves as

law enforcement officers, request entry in order to ask

questions concerning unlawful activity in the area, and upon

entry eventually ask permission to search the premises.

Permission is often given, and, if the police then find

contraband or other evidence of illegal activity, the issue is

raised of whether the procedure has in some way contravened the

occupant’s Fourth Amendment rights”).

14
See id. at 138-39, 782 A.2d at 872-73.
15
See id. at 153, 782 A.2d at 881.
16
See United States v. Santana, 427 U.S. 38 (1976).
Ryan McGovern – Writing Sample

17
See id. at 42.
18
See id. at 38.
19
See Oliver v. United States, 466 U.S. 170, 176 (1984). The

Supreme Court recognized that “open fields” are not “effects”

within the meaning of the Fourth Amendment. The meaning of

“effects” is less inclusive than property and does not include

open fields. Thus, government intrusion on an open field is not

protected as an unreasonable search method proscribed by the

Fourth Amendment. See id. at 176-77.

20
See id. at 179. The Supreme Court recognized that government

intrusion on an open field does not constitute a search in the

“constitutional sense because that intrusion is a trespass at

common law.” An existence of a property right is only one

element to consider in determining the legitimacy of privacy

expectations. See id. at 183.

21
See United States v. Matlock, 415 U.S. 164 (1974). The

Supreme Court found that in terms of the validity of consent to

search given by a third party, common authority cannot be

implied soley from an individual’s property interest. The

authority must come from a “mutual use of the property by

persons generally having joint access or control for most

purposes, so that each has right to permit inspection in his own

Petition Number 1126566

right and so that the others have assumed the risks thereof.”

See id. at 169-171.

22
See id. at 187 (Douglas, J., dissenting).
23
See id.
24
See id. at 167.
25
See id.
26
Jones, 407 Md. at 38, 962 A.2d at 395.
27
Id., 962 A.2d at 395.
28
Id., 962 A.2d at 395.
29
Id. at 39, 962 A.2d at 395-96.
30
Id., 962 A.2d at 395.
31
Id. at 39-40, 962 A.2d at 396.
32
Id. at 40, 962 A.2d at 396.
33
Id., 962 A.2d at 396.
34
Id., 962 A.2d at 396.
35
Id. at 40-41, 962 A.2d at 396-97.
36
Id. at 41, 962 A.2d at 397.
37
Id., 962 A.2d at 397.
38
Id., 962 A.2d at 397.
39
Id., 962 A.2d at 397.
40
Id., 962 A.2d at 397.
41
Id. at 38-39, 962 A.2d at 395.
42
Id., 962 A.2d at 395.
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43
Id., 962 A.2d at 395.
44
Id. at 53, 962 A.2d at 404.
45
Id. at 44, 962 A.2d at 399.
46
Id. at 44-45, 962 A.2d at 399 (citing Owens v. State, 399 Md.

388, 403, 924 A.2d 1072, 1080(2007)) (holding that review of a

motion to suppress is limited to the evidence presented at

trial, factual findings can only be overturned if clearly

erroneous, and that all evidence and inferences must be viewed

in a light most favorable to the party prevailing on the

motion).
47
Id. at 53, 962 A.2d at 404.
48
Id. at 45-46, 962 A.2d at 399 (citing Santana, 427 U.S. 38;

Oliver, 466 U.S. 170).

49
Id. at 46, 962 A.2d at 400 (citing Scott, 366 Md. 121; Brown

v. State, 378 Md. 355, 835 A.2d 1208 (2003)). The Maryland

Court of Appeals recognized that the facts in Jones did not

constitute a “knock and talk.” Id. at 48, 962 A.2d at 401.

Without presenting any reasons or evidence to support his

request, the petitioner asked the court to overturn the

decisions of Scott and Brown, both of which support the validity

of knock and talk, on the basis that the petitioner thought they

were wrongly decided. Id., 962 A.2d at 401. Furthermore, there

was no search or seizure of the home flowing from the knocking

Petition Number 1126566

on the door because the police officers never entered or

searched the dwelling house. Id., 962 A.2d at 401. Immediately

after Mrs. Jones answered the door she requested that the

officers go with her to a warehouse, which then led to the

search of another warehouse and a rental car. Id., 962 A.2d at

401.
50
Id. at 51, 962 A.2d at 403.
51
See Matlock, 415 U.S. 164.
52
See Jones, 407 Md. 53, 962 A.2d at 404.
53
See id. at 33, 962 A.2d at 393.
54
See Oliver, 466 U.S. at 170; Santana, 427 U.S. at 38.
55
See Jones, 407 Md. 33, 962 A.2d at 393.
56
See id., 962 A.2d at 393. The Supreme Court held that the

defendant in Santana was located in a “public” place, exempting

her property and herself from the protections of the Fourth

Amendment. See Santana, 427 U.S at 42. The reasoning behind

this determination was that the defendant was standing in her

open front doorway where she was not only visible to the public,

but also “exposed to public view, speech, hearing, and touch.”

See id. In Jones, the defendant himself was not even home and

his wife was inside the house with the door closed. See Jones,

407 Md. 33, 962 A.2d at 393.

57
See Santana, 427 U.S. at 42.
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58
See id.
59
See Jones, 407 Md. 45-46, 962 A.2d at 399-400.
60
This interpretation of “open fields” based on Oliver is

incorrect. See id. at 38, 962 A.2d at 395. The Oliver ruling

dealt with a large tract of farmland which the defendant used to

grow marijuana. See Oliver, 466 U.S. at 182-83. Oliver

specifically distinguished property near and surrounding a home,

as well as curtilage, as separate from “open fields” and thus

subject to the protections of the Fourth Amendment. See id. at

180.
61
See Jones, 407 Md. at 45-46, 962 A.2d at 399-400.
62
See Oliver, 466 U.S. at 182-83
63
See Jones, 407 Md. 33, 962 A.2d at 393.
64
See id. at 46, 962 A.2d at 400 (citing Scott, 366 Md. at 142,

835 A.2d at 875)(holding that the standard to apply when

determining the validity of consent to a search is based on

evaluating the totality of the circumstances, rather than a per

se rule). The holding established that Mrs. Jones gave her

consent freely and voluntarily. See id. at 52-53, 962 A.2d at

403-404. The ruling stated that the persistent knocking by

police officers did not constitute a seizure and went on to

define a seizure as occurring “when a person is restrained by

the police and the officer, by means of physical force or show

Petition Number 1126566

of authority, has in some way restrained the liberty of a

citizen.” See id. at 52, 962 A.2d at 403.

65
See Scott, 366 Md. at 136, 782 A.2d at 871.
66
See id. at 141, 782 A.2d at 874.
67
See Jones, 407 Md. 52-53, 962 A.2d 403-404.
68
See id. at 53, 962 A.2d 404.
69
See id. at 51, 962 A.2d 403 (citing Matlock, 415 U.S. at 171).
70
See Jones, 407 Md. 33, 962 A.2d 393.
71
See id., 962 A.2d at 393.