Fourth Amendment violation in Kentucky

2017Compare Martin v. O’Daniel, __ S.W.3d _, 2016 WL 5244518 (Ky. Sept. 22, 2016) (requiring malice for malicious prosecution claims brought under Kentucky law); and Sykes v. Anderson, 625 F.3d. 294, 309 (6th Cir. 2010) (“This circuit has never required that a plaintiff demonstrate ‘malice’ in order to prevail on a Fourth Amendment claim for malicious prosecution . . . .”).

2017Compare Martin v. O’Daniel, __ S.W.3d _, 2016 WL 5244518 (Ky. Sept. 22, 2016) (requiring malice for malicious prosecution claims brought under Kentucky law); and Sykes v. Anderson, 625 F.3d. 294, 309 (6th Cir. 2010) (“This circuit has never required that a plaintiff demonstrate ‘malice’ in order to prevail on a Fourth Amendment claim for malicious prosecution . . . .”).

2025Determining whether a party has Fourth Amendment standing “depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Id. at 283 (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).

1997United States v. Salvucci, 448 U.S. 83, 91 , 100 S.Ct. 2547, 2552 , 65 L.Ed.2d 619, 628 (1980) (citing Rakas v. Illinois, 439 U.S. 128, 143 , 99 S.Ct. 421, 430 , 58 L.Ed.2d 387, 400-01 (1978)).

2025The critical question in a Fourth Amendment analysis is whether a person has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). -3- To support his contention that a motel guest is entitled to a reasonable expectation of privacy, Gilliard first directs us to Connecticut v. Correa, an opinion from the Supreme Court of Connecticut. 264 A.3d 894 (Conn. 2021).

2025The critical question in a Fourth Amendment analysis is whether a person has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). -3- To support his contention that a motel guest is entitled to a reasonable expectation of privacy, Gilliard first directs us to Connecticut v. Correa, an opinion from the Supreme Court of Connecticut. 264 A.3d 894 (Conn. 2021).

2017Compare Martin v. O’Daniel, __ S.W.3d _, 2016 WL 5244518 (Ky. Sept. 22, 2016) (requiring malice for malicious prosecution claims brought under Kentucky law); and Sykes v. Anderson, 625 F.3d. 294, 309 (6th Cir. 2010) (“This circuit has never required that a plaintiff demonstrate ‘malice’ in order to prevail on a Fourth Amendment claim for malicious prosecution . . . .”).

2017Compare Martin v. O’Daniel, __ S.W.3d _, 2016 WL 5244518 (Ky. Sept. 22, 2016) (requiring malice for malicious prosecution claims brought under Kentucky law); and Sykes v. Anderson, 625 F.3d. 294, 309 (6th Cir. 2010) (“This circuit has never required that a plaintiff demonstrate ‘malice’ in order to prevail on a Fourth Amendment claim for malicious prosecution . . . .”).

2016Appellant insists that United States v. Jones, 132 S. Ct. 945 (2012) requires this Court to resolve the Fourth Amendment issue in his favor.

2016Jones only applies where there has been a trespass perpetrated against the individual claiming a Fourth Amendment violation in conjunction with "an attempt to find something or to obtain information," id. at 951, n. 5 , and Appellant claims no such trespass.

2014The Ordway Court relied on the holdings in Sussman v. Commonwealth, 610 S.W.2d 608, 611 (Ky.1980) (appellant lacked standing to challenge search of girlfriend’s apartment, though she gave him a key to the residence for limited use), and Combs v. Commonwealth, 341 S.W.2d 774, 775 (Ky.1961) (appellant lacked standing to challenge search of residence owned by grandfather, though he lived in the home), to support its holding.

2014The Ordway Court relied on the holdings in Sussman v. Commonwealth, 610 S.W.2d 608, 611 (Ky.1980) (appellant lacked standing to challenge search of girlfriend’s apartment, though she gave him a key to the residence for limited use), and Combs v. Commonwealth, 341 S.W.2d 774, 775 (Ky.1961) (appellant lacked standing to challenge search of residence owned by grandfather, though he lived in the home), to support its holding.

2014The Ordway Court relied on the holdings in Sussman v. Commonwealth, 610 S.W.2d 608, 611 (Ky.1980) (appellant lacked standing to challenge search of girlfriend’s apartment, though she gave him a key to the residence for limited use), and Combs v. Commonwealth, 341 S.W.2d 774, 775 (Ky.1961) (appellant lacked standing to challenge search of residence owned by grandfather, though he lived in the home), to support its holding.

2014The Ordway Court relied on the holdings in Sussman v. Commonwealth, 610 S.W.2d 608, 611 (Ky.1980) (appellant lacked standing to challenge search of girlfriend’s apartment, though she gave him a key to the residence for limited use), and Combs v. Commonwealth, 341 S.W.2d 774, 775 (Ky.1961) (appellant lacked standing to challenge search of residence owned by grandfather, though he lived in the home), to support its holding.

2009Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime.") (internal footnote omitted). 36 .See, e.g., New York v. Belton, 453 U.S. 454, 459-60 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981) (“When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.”); LaFave,

2009Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime.") (internal footnote omitted). 36 .See, e.g., New York v. Belton, 453 U.S. 454, 459-60 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981) (“When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.”); LaFave,

2007See United States v. McNatt, 931 F.2d 251, 256 (4th Cir.1991) (no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were in fair response to defendant’s argument that drugs were planted by police in his vehicle); United States v. Dozal, 173 F.3d 787, 794 (10th Cir.1999) (no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were admitted for proper purposes and were not meant to simply penalize defendant for exercising a constitutional right — in this case, the evidence helped establish that defendant had dominion and

2007See United States v. McNatt, 931 F.2d 251, 256 (4th Cir. 1991) (no Fourth Amendment violation where comments regarding defendant's refusal to permit search were in fair response to defendant's argument that drugs were planted by police in his vehicle) ; United States v. Dozal , 173 F.3d 787, 794 (10th Cir. 1999) 19 (no Fourth Amendment violation where comments regarding defendant's refusal to permit search were admitted for proper purposes and were not meant to simply penalize defendant for exercising a constitutional right - in this case, the evidence helped establish that defendant had domin

2007See United States v. McNatt, 931 F.2d 251, 256 (4th Cir.1991) (no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were in fair response to defendant’s argument that drugs were planted by police in his vehicle); United States v. Dozal, 173 F.3d 787, 794 (10th Cir.1999) (no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were admitted for proper purposes and were not meant to simply penalize defendant for exercising a constitutional right — in this case, the evidence helped establish that defendant had dominion and

2007See United States v. McNatt, 931 F.2d 251, 256 (4th Cir. 1991) (no Fourth Amendment violation where comments regarding defendant's refusal to permit search were in fair response to defendant's argument that drugs were planted by police in his vehicle) ; United States v. Dozal , 173 F.3d 787, 794 (10th Cir. 1999) 19 (no Fourth Amendment violation where comments regarding defendant's refusal to permit search were admitted for proper purposes and were not meant to simply penalize defendant for exercising a constitutional right - in this case, the evidence helped establish that defendant had domin

2007See United States v. McNatt, 931 F.2d 251, 256 (4th Cir.1991) (no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were in fair response to defendant’s argument that drugs were planted by police in his vehicle); United States v. Dozal, 173 F.3d 787, 794 (10th Cir.1999) (no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were admitted for proper purposes and were not meant to simply penalize defendant for exercising a constitutional right — in this case, the evidence helped establish that defendant had dominion and

2007See United States v. McNatt, 931 F.2d 251, 256 (4th Cir. 1991) (no Fourth Amendment violation where comments regarding defendant's refusal to permit search were in fair response to defendant's argument that drugs were planted by police in his vehicle) ; United States v. Dozal , 173 F.3d 787, 794 (10th Cir. 1999) 19 (no Fourth Amendment violation where comments regarding defendant's refusal to permit search were admitted for proper purposes and were not meant to simply penalize defendant for exercising a constitutional right - in this case, the evidence helped establish that defendant had domin

1997United States v. Salvucci, 448 U.S. 83, 91 , 100 S.Ct. 2547, 2552 , 65 L.Ed.2d 619, 628 (1980) (citing Rakas v. Illinois, 439 U.S. 128, 143 , 99 S.Ct. 421, 430 , 58 L.Ed.2d 387, 400-01 (1978)).

1997United States v. Salvucci, 448 U.S. 83, 91 , 100 S.Ct. 2547, 2552 , 65 L.Ed.2d 619, 628 (1980) (citing Rakas v. Illinois, 439 U.S. 128, 143 , 99 S.Ct. 421, 430 , 58 L.Ed.2d 387, 400-01 (1978)).

2025Minnesota v. Carter, 525 U.S. 83, 88 , 119 S. Ct. 469 , 142 L.

2025Minnesota v. Carter, 525 U.S. 83, 88 , 119 S. Ct. 469 , 142 L.

2023We adopt the reasonableness test for such searches under the Fourth Amendment1 as announced by the United States Supreme Court in Samson v. California, 547 U.S. 843 (2006), and we overrule our decision in Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014), to the extent it holds the conditions of parole imposed by Kentucky law are immaterial to the Fourth Amendment analysis. 1 U.S. CONST. amend.

2023We adopt the reasonableness test for such searches under the Fourth Amendment1 as announced by the United States Supreme Court in Samson v. California, 547 U.S. 843 (2006), and we overrule our decision in Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014), to the extent it holds the conditions of parole imposed by Kentucky law are immaterial to the Fourth Amendment analysis. 1 U.S. CONST. amend.

1993The United States Supreme Court held the Fifth Amendment privilege against self-incrimination is testimonial and thus not implicated, and that the taking of blood is reasonably non-intrusive testing, a constitutionally permissible search within the Fourth Amendment test of reasonableness, stating “[sjuch testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of [the Fourth] Amendment.” Id. at 918.

1993The United States Supreme Court held the Fifth Amendment privilege against self-incrimination is testimonial and thus not implicated, and that the taking of blood is reasonably non-intrusive testing, a constitutionally permissible search within the Fourth Amendment test of reasonableness, stating “[sjuch testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of [the Fourth] Amendment.” Id. at 918.

2026In Kavanaugh v. Commonwealth, our Supreme Court concluded that, despite its reservations as to the reasonableness of a stop and frisk, the defendant’s assault upon the police officer who was conducting the frisk “constituted an intervening act that purged the taint, if any, that resulted from any detention which may have violated the Fourth Amendment.” 427 S.W.3d 178, 181 (Ky. 2014).

2025Determining whether a party has Fourth Amendment standing “depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Id. at 283 (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).

2024“When police officers, by means of physical force or show of authority, in some way restrain the liberty of a citizen, a ‘seizure’ of that person has occurred.” Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008); see also Reynolds v. Commonwealth, 393 S.W.3d 607, 610 (Ky. App. 2012) (“Factors indicative of restraint on liberty include the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police.”) (internal quotation marks and citation omitted); United States v. Richardson, 385 F.3d

2024“When police officers, by means of physical force or show of authority, in some way restrain the liberty of a citizen, a ‘seizure’ of that person has occurred.” Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008); see also Reynolds v. Commonwealth, 393 S.W.3d 607, 610 (Ky. App. 2012) (“Factors indicative of restraint on liberty include the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police.”) (internal quotation marks and citation omitted); United States v. Richardson, 385 F.3d

2024“When police officers, by means of physical force or show of authority, in some way restrain the liberty of a citizen, a ‘seizure’ of that person has occurred.” Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008); see also Reynolds v. Commonwealth, 393 S.W.3d 607, 610 (Ky. App. 2012) (“Factors indicative of restraint on liberty include the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police.”) (internal quotation marks and citation omitted); United States v. Richardson, 385 F.3d

2024“When police officers, by means of physical force or show of authority, in some way restrain the liberty of a citizen, a ‘seizure’ of that person has occurred.” Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008); see also Reynolds v. Commonwealth, 393 S.W.3d 607, 610 (Ky. App. 2012) (“Factors indicative of restraint on liberty include the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police.”) (internal quotation marks and citation omitted); United States v. Richardson, 385 F.3d

2024“When police officers, by means of physical force or show of authority, in some way restrain the liberty of a citizen, a ‘seizure’ of that person has occurred.” Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008); see also Reynolds v. Commonwealth, 393 S.W.3d 607, 610 (Ky. App. 2012) (“Factors indicative of restraint on liberty include the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police.”) (internal quotation marks and citation omitted); United States v. Richardson, 385 F.3d

2024“When police officers, by means of physical force or show of authority, in some way restrain the liberty of a citizen, a ‘seizure’ of that person has occurred.” Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008); see also Reynolds v. Commonwealth, 393 S.W.3d 607, 610 (Ky. App. 2012) (“Factors indicative of restraint on liberty include the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police.”) (internal quotation marks and citation omitted); United States v. Richardson, 385 F.3d

2024Importantly, the Fourth Amendment’s protection against unreasonable searches and seizures “proscrib[es] only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government[.]” United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quotation marks and citation omitted) (emphasis added). 13 Private individuals who engage in a search based on their own interests (rather than acting at the behest of government actors) can properly disclose what they have learned as such private action

2024Importantly, the Fourth Amendment’s protection against unreasonable searches and seizures “proscrib[es] only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government[.]” United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal quotation marks and citation omitted) (emphasis added). 13 Private individuals who engage in a search based on their own interests (rather than acting at the behest of government actors) can properly disclose what they have learned as such private action

2023Comm’n, 450 S.W.2d 235, 237 (Ky. 1970). “[R]equiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property or incriminating evidence generally would be a ‘needless inconvenience,’ . . . that might involve danger to the police and public.” Texas v. Brown, 460 U.S. 730, 739 (1983).

2023See United States v. Sharp, 40 F.4th 749, 756 (6th Cir. 2022) (“And our sister circuits have specifically rejected the notion that Samson authorizes suspicionless parolee searches regardless of the search 40 condition or background state law.’’).23 Thus, our reliance on Moore, 553 U.S. 164, 171 (2008) to justify ignoring the conditions of parole and other background Kentucky law as part of the Fourth Amendment analysis was overbroad.

2023See United States v. Sharp, 40 F.4th 749, 756 (6th Cir. 2022) (“And our sister circuits have specifically rejected the notion that Samson authorizes suspicionless parolee searches regardless of the search 40 condition or background state law.’’).23 Thus, our reliance on Moore, 553 U.S. 164, 171 (2008) to justify ignoring the conditions of parole and other background Kentucky law as part of the Fourth Amendment analysis was overbroad.