A cop walks up to the front door of a family’s home. Nobody answers the door, so he just lets himself in and begins to look around. About a minute later, shots ring out from inside the house. He just shot the family dog. The husband was at work. The wife was out of town. The 4 kids were at school. It was just Zelda, the family’s beloved Belgian Malinois, being a good girl, doing her job protecting their home from intruders. Then the cop walks back outside.
Does he call the family to tell them what happened? No. He calls more cops and basically an army of police officers arrive at this home in this quiet neighborhood, and they begin to circle the wagons. They then proceed to go all through the family’s home, garage and backyard, for a period of about 40 minutes – all without even notifying this family, or obtaining their permission to do so. Oh, and also – without a warrant. Surely they made this right with the family? Apologized? Compensated them in some way? Surely they fired the officer and prosecuted him for unlawfully entering the family’s home and killing their dog?
Police report excerpt:
Raw surveillance footage:
Raw bodycam from one of the officers (not the shooter):
Raw bodycam from another officer (not the shooter) at the Briggs home:
Raw surveillance footage of Paul Briggs leaving the home about an hour earlier:
Cpl. Charles Mills of the Cherokee County Sheriff’s Office (Georgia) busted in a mom’s house without a warrant and illegally arrested her in front of her young children – basically doing exactly what the US Supreme Court said many years ago that police officers are not allowed to do (because it would be unconstitutional). Nevertheless, the Cherokee County Sheriff’s Office told the local TV news media that their deputy did nothing wrong – essentially gaslighting the public, lying about the law, as well as the facts. Obviously I can’t allow that to happen….
In Sharp County, Arkansas, Sheriff Shane Russell showed up at a family’s front door, following allegations from a neighbor that they had been revving their engines earlier (on their own property). Sheriff Russell, flanked by other police officers, did not have a warrant. But he didn’t let that stop him.
This involves the Moweaqua Police Department and happened in Macon County, Illinois. This man was being investigated for allegedly making a threat on social media. Police officers showed up at his door without a warrant. They asked to speak with him. He was apparently lawfully armed at the time. He invited them in. Once inside, they wanted to disarm him. Not being agreeable, he asked them to leave. They refused. It all went downhill from there. This all could have been easily avoided.
One particular police officer in Kentucky, Larry “Gus” Curtis, has repeatedly resigned while under investigation, subsequently appearing somewhere else. This last time, he was fired, and as far as I know, his current whereabouts are unknown. Prior to resigning from the Frankfort Police Department, he was sued twice for barging into women’s homes without a warrant. In one such case, a Kentucky judge lambasted Curtis for bodycam footage showing him barging into a woman’s home as part of a CPS investigation, even after the woman asked for a warrant.
In a quiet neighborhood, chaos erupted when police were called to the home of a 71 year old man. His wife, battling dementia, mistakenly called 911, alleging he shot her. But as officers arrived, they immediately escalated the situation, trying to kick in the door first, and ask questions later. When the homeowner answered the door, they forcibly pulled him out – in his bathrobe – and threw him down his own front steps, injuring him. Then they lied about it. What followed was a legal battle that just ended in a six figure settlement.
How did a routine morning having coffee in your robe spiral into a nightmare? It involves serious problems at this particular police department on a large scale, that recently were exposed in a federal investigation.
This footage was submitted by Bubba, from Wichita, Kansas. He says that his go cart was stolen, and apparently someone crashed it down the street, causing injury. Bubba recovered the go cart and returned home. But then the cops showed up, demanding information. Without a warrant, a police officer entered his home, tased him multiple times and arrested him. Can they do that without a warrant?
This morning I received multiple links and copies of this video that’s been circulating, showing a West Virginia State Trooper, in what appears to be inside a family’s home without a warrant. Apparently it was originally posted to Tik Tok, and then removed for some reason. It appears to involve a police response to a church traffic cone, which resulted in the homeowner apparently banging on the church’s door at some point. This trooper shows up, walks in the guy’s home, admittedly without a warrant, and without permission. Then the trooper makes a move on the phone, followed by some sort of altercation at the end. Here’s the video, then I’ll address some legal issues which I see:
Okay, to be clear, I know nothing about this situation, other than what is apparent from the video. So what do we know? The purpose for the officer’s presence appears to be for something relatively minor. A dispute of some sort between this guy and a church. We also know that there is no warrant. The officer claims that he was justified to enter and remain inside the man’s home due to his subjective concern that the guy might shoot him. We’re not told what this concern is based on, other than any individual could theoretically shoot anyone at any given moment. We also know that the guy is not in the home with the homeowner’s permission. That much is is said twice during the video, by my count. Also, we see that there appears to have been some sort of use of force by the trooper towards the end of the video. He definitely appears to strike the camera in some way. Whether or not the guy holding the camera was struck or not, we can’t see. But it does sound that way.
So here are some of the questions presented. Is this officer correct that he can just walk in somebody’s home under these circumstances, and remain there? Let’s go over the basics of how the Fourth Amendment applies to the home.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States (SCOTUS 1967). “At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States (SCOTUS 2001).
Inside the home: searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal as the default rule, according to the Fourth Amendment. Outside the home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.” Thus no warrant is required outside the home, unless a reasonable expectation of privacy exists. Searches or seizures inside a home require a warrant, or a valid exception.
The main exception is consent. A search conducted pursuant to a valid consent is constitutionally permissible. Voluntariness is the standard. Was the defendant’s will overborne? Voluntariness of the consent depends on the totality of the circumstances. Schneckloth v. Bustamonte (SCOTUS 1973). Officers may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs. Kentucky v. King (SCOTUS 2011).
The only other valid exception is exigent circumstances. Law enforcement may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with injury. This is known as “exigent circumstances,” and generally refers to some emergency situation. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. This is an objective rule. The officers’ subjective motivation is irrelevant. An action is “reasonable” under the Fourth Amendment regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. Brigham City v. Stuart (SCOTUS 2006).
Exigent circumstances can also apply to allow an entry under some limited circumstances to prevent the imminent destruction of evidence. Minnesota v. Olson (1990), or if the officer is in hot pursuit of a fleeing suspect. United States v. Santana (SCOTUS 1976). However, also keep in mind that police cannot create their own exigent circumstances by engaging or threatening to engage in conduct that violates the Fourth Amendment. Their conduct must be reasonable. Kentucky v. King (SCOTUS 2011). Lastly, a home’s front porch, including the area immediately surrounding the house, also enjoys protection as part of the home itself. Where information is gathered by physically entering and occupying that area without consent, it’s a search of the home.
But is the Fourth Amendment triggered by just entering a home, or even standing on the porch? Understand that you have “consensual encounters,” and then you have Fourth Amendment searches or seizures. Consensual encounters do not trigger the Fourth Amendment.
As a general matter, police officers are free to approach and question individuals without necessarily effecting a seizure. Rather, a person is seized within the meaning of the Fourth Amendment “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio (SCOTUS 1968). Such a seizure can be said to occur when, after considering the totality of the circumstances, the Court concludes that “a reasonable person would have believed that he was not free to leave.” Terry v. Ohio; also United States v. Gray (4th Cir. 1989)). Similarly, when police approach a person at a location that they do not necessarily wish to leave, the appropriate question is whether that person would feel free to “terminate the encounter.” See Florida v. Bostick (SCOTUS 1991).
A traffic stop, for instance, is always a seizure under the Fourth Amendment. Entering a home to engage in conduct not explicitly or implicitly permitted by the homeowner, is likewise a seizure under the Fourth Amendment. Florida v. Jardines (SCOTUS 2013).
Here, if there was no warrant for this state trooper to engage in a search or seizure inside the home, his doing so was presumptively unconstitutional, as a violation of the Fourth Amendment. He clearly did not have consent to be inside the home. It was evident, and apparently undisputed in the video, that the officer entered without permission and wasn’t welcome. It was also apparent that the officer didn’t care. Thus without consent, entering and occupying the home against the will of the homeowner, a Fourth Amendment seizure occurs that is preemptively unconstitutional.
Don’t forget that he also seizes the camera recording him, which is perhaps a seizure of the homeowner himself, along with the footage that was being recorded. That very well may implicate the First Amendment as well, as you have a right to record the police inside your home, whether this officer, who also ironically says he is also recording, likes it or not.
But what about exigent circumstances? The officer implies that he’s relying on exigent circumstances – that he followed the homeowner into the house, worried that he was going to be shot by him. He provides no details supporting this alleged concern. I’m skeptical that there’s any basis for this. He can’t call it hot pursuit of a fleeing suspect, because the guy doesn’t appear to have been under arrest.
This is where the officer’s body cam footage, if it exists, which it appears to from the visible camera on his abdomen, would come in handy. I’d also like to review the 911 records and audio, in order to fully understand the facts. It seems a stretch to me to justify exigent circumstances, based on what we see in the video. If he was truly in hot pursuit, he would have seized the guy immediately and taken him into custody, rather than walk in the house and do more of a knock and talk conversation. Which by definition isn’t supposed to take place in the guy’s living room. I’m sure there’s quite a bit of case law on point to this situation, but this is all just generally speaking, without having researched this scenario. There doesn’t appear to be an emergency situation. No medical emergency. No indication that someone’s flushing cocaine down the toilet. No baby choking, and so on.
So to answer your questions, it looks pretty bad to me, and I wouldn’t doubt it if this trooper might get his wish to be sued, assuming the homeowner wanted to do so. I also wouldn’t doubt it if disciplinary action is taken, given the fact that the video is now out there. However, more information is needed to evaluate his likely only avenue of defense – exigent circumstances. Just my two cents. I’ll provide an update if I learn more about it.
Do you have to be a journalist to have First Amendment protections to film in public? Is there a right to record police or other government officials in public? Let me tell you what the federal courts have said…..
To record what there is for the eye to see, or the ear to hear, corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public. See PG Publ’g. Co. v. Aichele, 705 F.3d 91, 99 (3d Cir. 2013); Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (quoting Fields v. City of Phila., 862 F.3d 353, 359 (3rd Cir. 2017)).
Under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas. Fields v. City of Phila., 862 F.3d 353, 360 (3rd Cir. 2017) (“The First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material.” (citation omitted)); See also ACLU v. Alvarez, 679 F.3d 583, 599–600 (7th Cir.), cert. denied, ––– U.S. ––––, 133 S.Ct. 651, 184 L.Ed.2d 459 (2012) (holding that an Illinois eavesdropping statute did not protect police officers from a civilian openly recording them with a cell phone); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“[T]he First Amendment protects the act of making film, as there is no fixed First Amendment line between the act of creating speech and the speech itself.” (quotation omitted); W. Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017) (agreeing with several sister circuits that recording the conduct of officials in general is protected First Amendment speech); Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir.2011) (holding there is an “unambiguous[ ]” constitutionally protected right to videotape police carrying out their duties in public); Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (finding plaintiffs “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing plaintiff’s videotaping of police officers as a “First Amendment right to film matters of public interest”).
Furthermore, there can be no doubt that the public has the right to record police officers and government officials from the vantage point of standing on their own private property – and indeed, standing in their own front yard, or within their home.
Can the recordings then be seized by police?
Recently, the Fourth Circuit observed in the context of a claim of seizure of cell phone video footage by law enforcement, that we live “[i]n an era in which cell phones are increasingly used to capture much of what happens in daily life” and that such recordings are protected from seizure by law enforcement under the Fourth Amendment. Hupp v. State Trooper Seth Cook, 931 F.3d 307, 329 (4th Cir. 2019).
But, keep in mind, they could still be subject to seizure without a warrant under the exigent circumstances doctrine…..
