The Fifth Circuit Court of Appeals recently ruled on a very sensitive Fourth Amendment matter in the case of United States v. Montgomery, in which the court considered a claim of illegal search and seizure. The federal judges provided an incisive interpretation of these constitutional rights and offered invaluable insight for both civilian and military counsel alike on these complex matters of police procedure and civil protections.

Mr. Montgomery's case concerns a traffic stop that occurred not far from his home. During the stop, officers tried to frisk Mr. Montgomery, but he resisted. When he finally relented, officers discovered cocaine in Mr. Montgomery's pocket and arrested him.

Approximately thirty minutes later, Mr. Montgomery allowed officers to search his house. During the search, Mr. Montgomery repeatedly asked officers for his cell phone so that he could erase pictures that he did not want his father to find. An officer gave Mr. Montgomery his phone and agreed to help him erase the pictures. While assisting Mr. Montgomery, the officer discovered child pornography on the man's cell phone, which resulted in an additional charge.

Mr. Montgomery appealed to have the child pornography evidence in his case suppressed, claiming that the photos were found as part of an illegal search of his person that initially led to the discovery of the cocaine. During the criminal trial the judge ruled against this motion to suppress, but Mr. Montgomery appealed the decision. The Fifth Circuit Court of Appeals had a number of key factors to consider in the case, including:

  • The lack of a request by police to search the phone
  • Mr. Montgomery's consent to the police search of the phone
  • Mr. Montgomery had been properly Mirandized before the photos were discovered

In the end, the Fifth Circuit Court upheld the original judge's decision that the traffic stop search did not taint the searches that followed and that the child pornography evidence should not be suppressed. Additionally, the judges found that the officers mainly acted fair and accommodating, and ruled that the Fourth Amendment violation was "not flagrant".


While Mr. Montgomery was initially stopped by police for a simple traffic violation, he made a number of questionable choices that eventually led to more serious charges being filed against him. It is common for individuals stopped by police to make incriminating statements and choices because they are not aware of their rights when arrested. The Fifth Circuit Court was right to identify Montgomery's actions as gross incrimination, even in the face of a minor Fourth Amendment violation.

It is important to be knowledgeable about your Fourth Amendment rights when arrested, and it is also strongly recommended that you heed your Miranda rights as well as the Article 31b rights and refuse to speak to police until you have discussed your options with an attorney. Article 31b are the military specific rights read to service members if they are suspected of a crime. These rights are rooted in the are 4 th Amendment rights that all citizens of American have.

If you are facing a military charge, don't wait to retain the experienced representation of Joseph L. Jordan, Attorney at Law. Attorney Jordan is a proven, dedicated military defense lawyer who has served clients all over the world. To find out how Attorney Jordan can protect your rights in the face of military charges, call today to schedule a free consultation.