I get asked all the time for an update on the Creepy Cops Search case out of Putnam County, West Virginia, where plain-clothes police officers from the sheriff’s department’s “Special Enforcement Unit” were caught on hidden camera literally breaking into my client’s home, sneaking in through the window, searching the inside of the house for non-existent drugs. To see footage of police officers secretly inside someone’s home, where there’s no criminal investigation, or even charges, and where there’s no legal justification, is scary.
This was actually my first Youtube video, uploaded January 15, 2020. The footage shows the drug task force officers searching Dustin Elswick’s house, including examining the ashes of his deceased friend, brilliantly believing them to be drugs. They also ran those ashes through field drug test kits, disabled an exterior surveillance camera, pulled Dustin’s guns out of storage for photographs, and generally ransacked and searched the place.
Until I uploaded the video two and a half years ago, they had no idea they had been caught on video. I first provided the video to federal prosecutors, who in turn provided the video to the FBI for investigation. I didn’t know this at the time, but the FBI agent tasked with the investigation didn’t investigate, but rather just tipped off the officers that I had a video showing them in Dustin’s house. I only found this out much later, after a lawsuit was filed and discovery was exchanged.
A federal civil rights lawsuit was filed on August 20, 2021 against the individual officers, as well as against the county for creating and allowing this drug task force to operate in the first place. The federal court denied Putnam County’s motion to dismiss the pattern and practice (Monell) claim, issuing a memorandum opinion explaining the basis for liability.
Right now the case is set for jury trial in federal court in Huntington, West Virginia on February 22, 2023. There were also two companion case lawsuits filed, on behalf of other plaintiffs, the Johnson family, as well as Mason Dillon, which are also currently pending and set for trial. However, this is the only one that was caught on video. The Dillon case is set for trial on January 18, 2023. The Johnson case is set for trial on January 31, 2023. As of right now they have not been consolidated with the Elswick case.
Discovery has been exchanged, so we now know a lot more. However, depositions have not yet occurred, having been delayed several times due to the defendants’ concerns over a renewed FBI investigation, following the disclosure that the initial FBI investigation was more of a locker room pat on the butt, than an investigation. I suspect that the current FBI investigation could be actually an investigation of the initial FBI investigation, but I have no idea as of right now. What I do know is that we are finally set for depositions of the officers to take place at the end of this month. It will be interesting to find out whether the officers will plead the Fifth Amendment. I honestly hope that they don’t. But either way, I already have their statements from the still-confidential internal investigation. So if they don’t want to answer questions, there are mechanisms in place for me to utilize their prior statements.
What I can tell you is that there is no good explanation here. There are some excuses and some finger-pointing. But there is no great defense here. I believe that it will be determined that some of the officers are more culpable than others. Which is why I hope that at least those officers will be willing to tell the story. It’s an interesting tale that resulted in the end of the Special Enforcement Unit, but not the end of the officers’ employment. Though there’s more to the story that isn’t out yet.
Remember, your home is your castle, and is the most protected place there is under the Fourth Amendment. Any search or seizure by the government that takes place in the home is automatically unconstitutional, by default, unless the government can prove otherwise, in the form of a valid warrant, or valid exception to the warrant requirement. There are only two exceptions recognized by the U.S. Supreme Court: consent and exigent circumstances. Consent must be voluntary. Exigent circumstances require something akin to an emergency situation.
Also, when it comes to consent, as I’ve explained previously, a landlord cannot authorize the government to search the residence of a tenant, as per the Supreme Court in the 1961 case of Chapman v. United States. This also extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room.
These cases tend to speed up towards the very end, which is where we are now. So there will likely be a big update, or updates, very soon. We have a mediation scheduled in August, which is an opportunity for both sides to discuss potential settlement resolutions. In this case, which is a civil rights lawsuit, the potential remedy available to a plaintiff is money. So that’s where money will be discussed, for the most part. If that falls through, we’ll sort it all out at trial.