Remember the case where my clients were harassed and arrested on a private home’s front porch, just because cops assumed they were responsible for some marijuana plants growing on a nearby property? Huge update: We just received a big ruling from the Court.
Police officers around the nation continue to misunderstand the Fourth Amendment and the concept of reasonable suspicion. This footage was submitted by Nick Failla, showing his arrest in Cocoa, Florida several years back. He just recently obtained the bodycam footage.
Many cops believe that they get to forcibly ID anyone they encounter as a part of their job. They are taught that its policy to do this for officer safety reasons. We see it over and over again. In this particular video, the female officer, who is a supervisor, explains repeatedly to Nick that, because she’s a police officer conducting an investigation, Florida law allows her to obtain the ID of anyone she encounters – whether or not a crime is even alleged. Nick disagrees with her and asks repeatedly for an explanation of what crime he was alleged to have committed. Let me see if I can clear this up.
This is a common issue and is the subject of one of my most popular Youtube videos – a case currently being litigated in federal court, involving the arrest of my client in a West Virginia Walmart. When police officers encounter pedestrians, they could trigger an investigatory detention, which requires reasonable suspicion, or they could just be engaged in a consensual encounter, which requires nothing. It’s just a conversation.
Consensual encounters, i.e., a conversation, does not trigger the Fourth Amendment, and can be easily identified if the subject asks whether or not he’s free to leave. If the question isn’t asked, courts will look to the circumstances. Would a reasonable, regular person believe that he was NOT free to leave? Were emergency lights activated? Multiple police officers? Guns drawn? Put in handcuffs? Accused of criminal conduct? Told to show your hands? Told to get on the ground? Or was it just a conversation.
The question is whether a reasonable person would feel free to terminate the encounter. If the person was involuntarily detained by the officer, that constitutes a seizure under the Fourth Amendment, no matter how brief the detention or how limited its purpose.
If a detention occurs, the courts require the detaining officer to be able to articulate why a particular behavior is suspicious or logically demonstrate that the person’s behavior is indicative of some sinister criminal activity. It must be based on suspicion of illegal conduct. In other words, it cannot be based on suspicion of legal conduct, such as walking down a public sidewalk, or hanging out on top of your van with two women in a parking lot in front of a lake.
Here, there was clearly a detention. Therefore reasonable suspicion is required. Even in Florida, a police officer must have a particularized and objective basis for suspecting the person stopped of criminal activity.” United States v. Campbell, 26 F.4th 860, 880 (11th Cir. 2022) (en banc).
Remember the video I posted that was filmed by my client, showing a police officer purportedly experiencing a contact overdose after an arrestee allegedly threw a white powdery substance in his face? The suspect was charged with two counts of attempted murder of police officers. Well, a year has now gone by and the toxicology results came in. The criminal case is now over. Was it real? Was it a hoax?
Here’s the RAW footage of the incident, as captured by my client:
New and shocking body camera footage shows police officers in Georgia unjustly arresting and threatening to charge a woman just days after they handcuffed and detained her husband for not satisfying their questions about a neighborhood disturbance. It all started last year on May 26, 2022, when officers with the Covington Police Department were called to investigate a shots fired call in a local neighborhood near Melody Circle.
Andru Kulas was arrested by the Fort Collins Police Department in the early morning hours of August 29, 2021. He was pretty drunk and was expressing some criticism of the officers as they wrote him a citation for trespassing at a rooftop bar. When he refused the actual piece of paper, one of the officers attempted to shove it into his shirt pocket, which escalated the situation into the man being pepper sprayed at close range, among other things. He just filed a federal civil rights lawsuit.
This footage was submitted out of LOWER Yoder Township, Pennsylvania, showing a traffic stop by a police officer from the UPPER Yoder Township Police Department, in response to the driver giving him the middle finger. Basically, he pulled over the wrong guy at the wrong place for the wrong reason.
In May of 2019, Florida man Dillon Shane Webb was pulled over by Columbia County Sheriff’s Deputy Travis English, who objected to the sticker on the back window of Webb’s truck, which said, in all capital letters, “I EAT A**.” Deputy English ordered Webb to remove one of the letters during the traffic stop. Webb refused citing his First Amendment rights. But he was arrested and booked in jail for “obscene writing on vehicle” and “resisting an officer without violence.” Did he have a First Amendment right to have that sticker? Was the arrest unconstitutional? What happened to the criminal charges? Was there a lawsuit? If so, was it successful? You might be surprised…
Section 847.011(2) makes it a misdemeanor offense to possess
“any sticker, decal emblem or other device attached to a motor vehicle containing obscene descriptions, photographs, or depictions . . . .”
Florida law further defines “obscene” as material which
(a) The average person, applying contemporary standards, would find, taken as a whole, appeals to the prurient interest; (b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.
Fla. Stat. § 847.001(10).
Under section 843.02, Florida Statutes,
“[w]hoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . . .”
New bodycam footage surfaces of Officer Justin Peppers of the Jacksonville Sheriff’s Office, as featured a few videos ago regarding the Braxton Smith traffic stop and arrest. In the first video, he’s shown punching a handcuffed arrestee, while another officer warns him to stop punching, and that his bodycam is recording. The second video shows an encounter with a woman who was asking Peppers questions during the traffic stop of a third party. That encounter resulted in the woman being taken out of her car and called a “fu@king retard.”
On March 18 at 1:15 a.m., the Calloway County Sheriff’s Department, in Kentucky, arrived at a private residence with an arrest warrant for a guy who did not reside at the residence, but whose vehicle was parked in the yard, undergoing maintenance by the homeowner. When the footage turns on, you’ll see police walking towards the husband slash homeowner. Then you’ll see the man’s wife come outside and ask for a warrant and also for the officers to leave the property.
This raises constitutional issues about whether law enforcement can enter and remain in someone’s front yard under these circumstances, where the home’s residents are present and asking them to leave. And where there is no arrest warrant for the home’s residents – nor a search warrant for that home? This also raises issues about whether police can detain those residents, including their guests, without their consent and in the absence of a search warrant? This is a common issue that most people misunderstand – especially police. Let’s look at this footage, which you haven’t seen anywhere else, and clear up the legal rights at issue.
NOTE: This footage was submitted anonymously and I really have no idea what the outcome was in the criminal case, or otherwise. One would hope that no convictions resulted from this, for reasons I explain in the video, as well as below….
Some of the applicable law discussed in the video:
According to the 1980 Supreme Court opinion in Payton v. New York, in order to legally arrest someone in a home, rather than in a public place, absent consent or exigent circumstances, police officers must have a warrant.
According to the 1984 Supreme Court opinion in Oliver v. United States, the heightened Fourth Amendment protections of the home extend beyond just the interior of the home itself into what’s called the “curtilage” of the home, which is the land immediately surrounding and associated with the home. Why? Because according to the Supreme Court, the curtilage is considered part of the home itself for Fourth Amendment purposes.
In the 2013 Supreme Court opinion of Florida v. Jardines, the Court held that a search undoubtedly occurs when the government, without a warrant, obtains information by physically intruding within the curtilage of a house, which in that actual case involved a home’s front porch. The Court cautioned that a search occurs unless a homeowner has explicitly or implicitly sanctioned the government’s physical intrusion into the constitutionally protected area, i.e., the yard and/or porch of the home.
Under the “knock and talk” exception to the warrant requirement, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” This means there is an “implicit license . . . to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” An officer may also bypass the front door (or another entry point usually used by visitors) when circumstances reasonably indicate that the officer might find the homeowner elsewhere on the property. “Critically, however, the right to knock and talk does not entail a right to conduct a general investigation of the home’s curtilage.”
The obvious difference between a police officer and a young girl selling girl scout cookies, is that many, if not most, homeowners have no idea whether they have any right to refuse to answer the door, or to ask the person to leave. Police like it this way. They don’t inform people of these rights, and the courts have ruled that they have no legal obligation to do so. You have to inform yourself and spread the word.
Police officers, and anyone else really, have an implied license to come onto your property and knock on your door. This implied license can be revoked. Homeowners can prevent ordinary citizens and police officers alike from conducting a knock and talk by revoking their implied license to be there. However, few citizens know that an implied license exists. Generally, the courts require that a homeowner do so by clear demonstrations or express orders. For instance, asking someone to leave or refusing to answer questions.
A couple of days ago I put up a video of my interview with Patrick Jaicomo from the Institute for Justice about the Kansas newspaper raid. Now we have surveillance footage of the simultaneous raid of the newspaper owner’s home, showing the owner’s 98 year old mother confronting police officers while they were searching her home.