Tag Archives: fourth amendment law

Cops Point Guns Over THEIR Dumb Mistakes | “It’s Policy”

Posted on by
3

Have you seen these videos where innocent people get pulled over by the police due to a mistaken belief that their car is stolen? Then the police point their firearms at them and treat them like a criminal, before realizing the mistake. That can’t be constitutional, can it?

In April of this year, several people, including one child, were pulled over by the Lehi City Police when an officer said he received an alert and confirmed from dispatch that a vehicle had been stolen after running a license plate. The only problem was, it was a mistake. The vehicle was not stolen. The department has not explained the reason the officer ran their license plate in the first place. 

They get pulled over and next thing you know, they see police officers approaching with guns pointed at them. One of the vehicle’s occupants pulled out his cell phone and began recording the incident. One thing led to another. The media began to report on it. KUTV reported that a high-risk traffic stop was performed on the vehicle, because according to the police statement, “routine protocol is to have guns pointed at the vehicle during a high-risk vehicle stop.”

A statement released Monday by the Central Utah Emergency Communications Center revealed that the dispatcher failed to recognize that the flagged information they reported back to the officer was actually a NCIC wanted HIT which was verified only by a partial vehicle identification number taken down in the incident which was never confirmed. The incomplete VIN of the stolen vehicle was identical to a string of seven numbers from the VIN of the vehicle that was wrongly pulled over. So, “the dispatcher failed to see that the actual plate number given was not stolen,” according to the Lehi Police Department statement. They said they have taken corrective action with the dispatcher involved. 

So, the vehicle stopped was not stolen, nor was it displaying a stolen plate. The vehicle occupants were released from custody after about 20 minutes and then left the scene in their vehicle. Officials of the Lehi City Police Department called the incident “rare” and “unfortunate.” But this is not an isolated occurrence. This happens all the time. 

Aurora, CO: A father records from a distance as cops approach his wife, guns drawn. His three year old child, still in the vehicle. This woman thought it was just going to be a regular traffic stop. But she was wrong. Bodycam footage shows the officers discussing the fact that they’re going to perform a so-called high-risk stop, with guns drawn, as per their department policy. This was apparently the result of officers marking the wrong box on a form. The vehicle had been previously repossessed and then reclaimed. But on the form it was marked stolen by mistake. 

But that wasn’t the only time. It happened to another family. A woman with her car full of kids was in a parking lot in Aurora, looking for a nail salon, when all of a sudden police descended on her, allegedly because a license plate reader flagged her car as stolen. The family in the car, kids included, were made to exit the vehicle and lay on the ground. 

The car was not stolen. Another mistake. What was the mistake this time? The actual stolen vehicle flagged by the plate reader was a motorcycle with the same number – but from a different state. So yet again: innocent people in a non-stolen car; police make the mistake; yet the innocent people get guns pointed at them. Why? They say it’s their policy. Officer safety, of course. 

Raymore, MO: In August of 2022, a Raymore, Missouri couple was held at gunpoint by the Raymore Police. The video went viral first on Tik Tok and then hit the TV news. 

So this was another mistake situation. Their son’s truck had been stolen just days before. But then it was recovered. The police then failed to take the truck off the stolen vehicle registry. So they got the “high risk stop” or “felony stop” treatment. Like the other victims, they were pissed and no longer back the blue types. This couple’s son is actually an attorney and he’s apparently pissed too – and summed it up well. 

Fairfax, VA: In October of 2022, a mom and her 5 year old and 1 year old daughters were on their way to Walmart in Fairfax County, Virginia when they noticed a police car trailing them. Next thing you know, the vehicle pulled up beside them, then the police car rammed them, the police car striking their car head-on. Guns were drawn and she was handcuffed and her kids were put in a police car. Police later just said she ended up not being the person they were looking for. Another mistake.  Apparently the vehicle was listed as “wanted.” But it wasn’t. 

Norwalk, CT: It can even happen to the General Manager of the Yankees, Brian Cashman. Same old story. His Jeep was stolen and then recovered. But government employees did what government employees do. They just kept the stolen classification and then gave him the “high risk stop” treatment at gunpoint. At least for a few minutes before recognizing him and kissing his ass. 

This is obviously far from an isolated incident. This apparently happens all the time. There are more examples out there. What do they all have in common? Innocent people – could be your father, mother, sister, wife – all held at gunpoint by your government agents, not in response to anything they did, nor any threat presented by them. Rather, it’s just their policy. 

What happened to protect and serve? These are the people police officers have sworn to protect. All to often, those individuals are victimized in the interests of officer safety. In all of these incidents, though the police will apologize, they say it’s policy. Because it’s a “high risk” or “felony” stop. But is that enough to aim a gun at someone? I argue that it’s not. 

What’s the law? Here, with Lehi, Utah being in the 10th Circuit, we have two real cases that happened that the courts have contrasted:

In Maresca v. Barnalillo County (10th. Cir. 2015), officers at gunpoint ordered a family out of a suspected stolen truck. The officers forced the family of two parents and three minor children to exit the vehicle and lie face down on the highway. The officers first removed the parents, who pleaded with the officers that there had been a mistake, that they should check the father’s license, and that there were children and a dog in the car. Even though one officer on the scene considered the situation “a little weird,” the officers ignored the parents’ repeated pleas to recheck whether the vehicle was in fact stolen and proceeded to order the three children out one-by-one.

The officers then handcuffed each family member (except the youngest) and locked them in separate patrol cars, keeping their weapons trained on the family throughout despite full compliance with their orders. The court found the forceful measures unnecessary and unconstitutional, primarily because the officers had no reason to believe the family possessed firearms.

Contrast that with a more recent case, Hemry v. Ross (10th Cir. 2023), where it was reported to the officers making the stop that the driver was a fugitive murderer. The court noted that in the case of a suspected stolen car, there’s nothing specific indicating that the car’s occupant may be armed. But where the driver is believed to be an actual murderer, officers acted reasonable in holding the man at gunpoint during the stop. 

The point is, without more, police officers should not be aiming firearms at people. Reasonableness is the key. Aiming guns based on clerical entries and government policy is rarely going to be reasonable. Doing so should be based on actual perceived threats presented by the persons with whom they’re dealing. 

Cops Violate Fourth Amendment Over JAYWALKING Kids | Doorbell Cam

Posted on by
15

This footage was submitted by a homeowner in Loraine, Ohio, showing police officers enter onto a woman’s private property and refusing to leave. They demand that she send her kids outside, because the officers allege that they observed them jaywalking. Her doorbell footage shows otherwise. I’ve previously discussed what you need to know when police are at your door.

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.”

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. 

Here’s an excerpt of the police report in this particular case, posted with the original video:

On February 15th, 2023 I was operating as a member of the Lorain Patrol Impact Team targeting high crime areas throughout the City of Lorain, Ohio. I was driving an unmarked Ford Taurus equipped with emergency lights and sirens. I was also dressed in plain clothes with “Police” identifiers displayed on the exterior of my vest, making myself readily identifiable as a Police Officer. It should be known that ATF Special Agent Fabrizio was also in my patrol vehicle at this time. On this date at approximately 1539 hours, we were patrolling the intersection of W. 27th Street and Reid Avenue. It should be noted that on 7/26/2022 a shooting had occurred between a group of juveniles in the area of 126 W. 27th Street and the surrounding area is a known hot spot for shots fired incidents and weapons violation complaints. While patrolling this intersection, S.A. Fabrizio and I observed three males who appeared to be juveniles with there hands in both hooded sweatshirt pockets and their waistbands while looking around their immediate area. Through my prior training and experience, this type of behavior is an indicator that the person may be both armed and checking their surroundings.

S.A. Fabrizio and went around the block to the intersection of W. 27th Street and Broadway Avenue and observed the males illegally cross the road not in a posted cross walk and began approaching the residence of 126 W. 27th Street. Due to this observed traffic violation, I approached the above listed residence and activated my emergency lights and sirens in an attempt to initiate a traffic stop for this violation on the three individuals while they were approaching the house in the front yard. S.A. Fabrizio exited the passenger side and advised the males to stop and to come back to our patrol vehicle. The males acknowledged our presence by looking back at our patrol vehicle and quickly made their way up the front steps to the residence and entered and refused to exit. A female (later identified as Mary Hildreth) came to the front door and began yelling at both S.A. Fabrizio and I as well as asking what we were doing and what the problem was.

Pregnant Teacher Stopped and Arrested | Officer Disciplined

Posted on by
4

From the Fort Worth Report:

Vilmaris Montalvo was on a tight deadline July 30, 2021. A pregnant, Hispanic dual language teacher in Arlington, she took her lunch break to pick up her husband from a Fort Worth hospital following surgery.

After noticing a Fort Worth patrol car following her for several miles, Montalvo pulled over.

Cops Caught Snooping in Backyard Looking for AirPods | Is That Legal?

Posted on by
2

It’s August 19, 2022. Imagine a woman is at home, in a quiet neighborhood in Bay County, Florida. Unbeknownst to her, someone’s air pods went missing. For some reason – and I’ve been seeing a lot of this lately – the cops believe they could be located in her home. That’s probably because a stranger shows up first, claiming his missing air pods were pinging from inside the house. The woman doesn’t answer the door, because he’s a stranger. A little while later, the cops show up with no warrant, and do what creepy cops do, which is search without a warrant. They go into the woman’s backyard. One stands outside the bedroom window of her 15 year old son, like some sort of law enforcement pepping tom. 

There was apparently no warrant here. But the cops didn’t go inside the home. Does that matter? For the too-long-won’t-watch types, I’ll save you some time and let you get back to your funny animal videos. Cops need a warrant, even in your backyard, with only a couple limited exceptions – none of which appear applicable here. You’re free to go. For the rest of you, let me explain.

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 11th Circuit, which applies to Florida specifically, warned police officers in the case of U.S. v. Maxi in 2018 that their right to go up to a citizen’s front door on a knock and talk, does not include inviting armed me into the homeowner’s yard to “launch a raid” or “conduct a search.”

The only possible justification for this behavior would be circumstances of “hot pursuit.”  Under the hot pursuit doctrine, police officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect. A “hot pursuit means some sort of chase. The Supreme Court has indicated that a claim of hot pursuit is “unconvincing” where there was “no immediate and continuous pursuit of the petitioner from the scene of a crime. See United States v. Fuller (11th Cir. 2014).

That clearly does not appear to be the case here. Even assuming airpods actually went missing, and even assuming someone claims that they pinged to this location; and even assuming they did in fact ping to this location, that doesn’t change the legal analysis. When it comes to a home, which includes the curtilage around the home, a warrant is required. Or consent. Or exigent circumstances, which in the case would have to be a subcategory of exigent circumstances – hot pursuit. That in turn requires probable cause that some crime was committed and that an individual they pursued into the house may have committed that crime. 

I see no indication of any pursuit or chase whatsoever – certainly not one that is also immediate and continuous, all the way from some crime scene. All they have as far as justification goes is their right to knock and talk. Cops have been abusing knock and talks for years. On a knock and talk, they are merely authorized to act as a little girl selling girl scout cookies would do. As I explained in a previous video about this, police have an implied license, just like anyone, to come knock on your door and talk to you. 

My prior video on what you need to know about “knock and talks” and related law:

But you can revoke that implied license by asking them to leave, or even putting up no trespassing signs, or “no cops allowed signs.” They won’t inform you that you don’t have to talk to them and can ask them to leave. But you can. But they won’t tell you – because they want you to think that you have no choice but to interact with them and answer their questions. Know your rights. Tell them to leave, and to go pound sand, if that’s what you want. 

Something I learned in my years of criminal defense practice. Generally speaking, the cops want to talk with you because they have no evidence against you. They are required by law to have evidence in order to get a search warrant, or an arrest warrant. They need you to provide that for them. Any time you’re tempted to provide this for them, think of a taxidermy fish on the wall, mounted with a plaque that reads, “if I had only kept my mouth shut.”

“White Male or Black Male?” | Cops Assume Citizens on Porch Are Criminals – Part 2 Body Cam

Posted on by
1

Here is part 2 of the body cam footage from the arrest of Jason Tartt by Deputy Dalton Martin of the McDowell County, West Virginia Sheriff’s Department. The part 1 video and lawsuit is posted here.

Police Harass Innocent Citizens on Their Porch – Lawsuit Filed Today

Posted on by

What you’re about to see here is outrageous body cam footage that has never before been seen by anyone, other than law enforcement. It shows what happened to my clients, Jason Tartt, the property owner and landlord, as well as Donnie and Ventriss Hairston, his innocent and mistreated tenants, on August 7, 2020, when they were subjected to civil rights violations by two deputies with the McDowell County Sheriff’s Office, Dalton Martin and Jordan Horn. 

Today we filed a federal civil rights lawsuit, which is posted below. But you can watch the footage for yourself. Before the body cams were turned on, what you need to know is that there was a complaint received that an abandoned church, in an overgrown parcel of land not owned by any of these individuals, apparently had four marijuana plants growing there, among the thick brush. Crime of the century, right? The perpetrators must be one of the elderly African American residents nearby, of course. Instead of treating them as human beings, let’s accuse them first thing, then mistreat, harass, and retaliate against, them if they dare to get uppity, or not know their place. 

Donnie and Ventriss Hairston were sitting on the front porch of their rural home, when two deputies approached and began to harass and intimidate them. Their landlord, who lives next door, joined them shortly afterwards and began to ask questions. When they asserted their opinions and rights, retaliation ensued. The landlord, Jason Tartt, was seized and arrested. The Hairstons were shoved into their home against their will. This is never before seen footage, outside of law enforcement of course. Take a look and form your own opinion about what happened.

Here’s the footage:

Here’s the lawsuit:

Stay tuned for updates….

Ring Doorbell Saves the Day Again: Eviction at the Wrong House

Posted on by

It’s a relaxing summer afternoon. You’re visiting family about 15 minutes away from your home. You locked your doors before you left, like you always do. Your three dogs are safely secured inside your house. All of a sudden you get a notification from your Ring doorbell security camera, at your front door. You see two police officers and some other stranger standing on your doorstep. They just busted the lock off your front door. They’re in the process of entering your home. You have three dogs in the house and you immediately have awful thoughts racing through your head about police officers and dogs. Not knowing what else to do, and having no idea what’s happening, you confront them using the doorbell’s audio speaker. They tell you that they’re there to evict you. You have no idea what they’re talking about.

This was the experience of Jennifer Michele of Land O’Lakes, Florida, in Pasco County. It was a complete surprise to her, given the fact that she had no knowledge of any eviction proceedings against her. She had been living there for 13 years. She posted this footage to Tik Tok, and it went viral. Here it is…

@jennifermichele82

@invitationhomes your move…. #invitationhomes #fyp #foryoupage #momsoftiktok #eviction #mybillsarepaid #greenscreenvideo

♬ original sound – Jennifer Michele

The Maxim that “a man’s house is his castle” is older than our Republic, and deeply rooted in Anglo-American jurisprudence. As scholars have observed, it protects all levels of society, down to the “poorest man living in his cottage.” It formed much of the basis of the Fourth Amendment itself. While 4th Amendment protections have eroded over time almost everywhere else – cars, schools, sidewalks, airports, and so on, it has retained its original strength in the home. The home still receives the greatest protection under the Constitution. It’s our castle. This is expanding in many states, with “castle doctrine” and “stand your ground” laws, and other self defense protections for law abiding citizens. 

Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. The only exceptions are consent and exigent circumstances, which are not at issue here. 

Thus where law enforcement busts your lock off your front door, without a warrant, or in this case a valid eviction order, they violated your Fourth Amendment rights, by default application of the law. But are there any consequences? This is where qualified immunity comes in. 

There are two scenarios: 

1) Where the warrant or eviction order lists the homeowner’s correct address, but which is actually the wrong address. So on its face, there is a warrant for that address, but it was supposed to be a different address; or 2) where the warrant or eviction order lists an entirely different address and they just showed up and executed it at the wrong house. This could be equally applicable to arrest warrants where the wrong John Smith is arrested. Is the mistake in the warrant, or in the execution of the warrant? If the mistake is in the warrant, then how did it get there, and who was responsible? These questions are all highly important to the qualified immunity issue. The unfortunate reality is that qualified immunity is typically granted in these sorts of mistaken identity or address cases. Not always, but very frequently.

One must also remember that this is Pasco County, the same county as the video I recently posted showing the SWAT style entry into a woman’s home over a building permit inspection. That brings up what is most likely a better legal argument here, which is the existence of a policy of constitutional misconduct. This is likely not the first issue. Why is Pasco County law enforcement showing up in tactical gear, with very little information or communication, for an eviction? There may be a Monell Claim here, which would be important because a county or municipality cannot assert qualified immunity as a defense to Monell liability for a policy of constitutional violations.

The consequence of out of control government here was relatively harmless in the end. But often it’s not. Similar mistakes are often made, with tragic results. When law enforcement forcibly enters someone’s home, they do so with firearms, which often are used against occupants – either human or canine. Because, they have to get home safe at night. Nobody else does, necessarily, but they must, at all costs. Protect and serve. When you have the peace-of-mind of qualified immunity, you can just act first and sort out the damage later. Or, as we used to say in football, “let the paramedics sort them out.” 

Cops Arrest Homeless Vet for Being in a Median and do This to His Dog, Sunshine

Posted on by
1

Just released, body cam footage shows Gastonia, North Carolina police arresting a homeless veteran, suspected of panhandling in a median, and tasing his dog, named Sunshine. Unfortunately, Sunshine didn’t make it. This is brand new footage, ordered released by a judge, against the will of Gastonia law enforcement, who fought the release of the footage, supposedly to guarantee the homeless vet, Joshua Rohrer, a “fair trial.” Yeah, right. If law enforcement doesn’t want you to see it, then you probably need to see it. 

Here’s the raw footage:

In the applicable jurisdiction – the Fourth Circuit – these cases seem to come out of North Carolina. There is a very recent published opinion out of the Fourth Circuit – Ray v. Roane – which deprived police officers of qualified immunity in a civil lawsuit for shooting someone’s dog. Here’s a video I just did a few weeks back in June on another similar video:

As an initial matter, it is well-settled that privately owned dogs are “effects” under the Fourth Amendment, and that the shooting and killing of such a dog constitutes a “seizure.” So it’s a different legal standard that standard police shooting cases. It’s an overall reasonableness standard, recognizing that police can shoot dogs where officer safety justifies the decision. 

The question is whether, at the time the officer shot the dog, he held a reasonable belief that the dog posed a threat to himself or others. If the facts are sufficient to show that such a belief was unreasonable, then the law is clearly established in the Fourth Circuit that shooting a dog under those circumstances would constitute an unreasonable seizure of Mr. Rohrer’s property under the Fourth Amendment. That’s not a great way of looking at the value of our dogs, but that’s the actual legal analysis.

Here, the tasing officer, Maurice Taylor, claims that the dog “bit his boot.” Although I snipped the footage for Youtube reasons, you can click the link and watch the entire raw footage on Mr. Rohrer’s channel. You can see that the tasering took place well after the dog allegedly bit the boot. Immediately after the officer claims the dog bit the boot, you can see the dog wagging its tail. I have my doubts. Perhaps what really happened is the dog came up to him, wagging his tail, and Officer Friendly kicked her in the face. They don’t call them “jack booted thugs” for nothing. 

That reminds me of the officer from yesterday’s video, where the guy he beat up actually attacked his fists. At the point where the taser is deployed, the arguable officer safety concern actually involves his partner. You can see the dog on video at this point, and the dog clearly doesn’t make any move to attack the partner. 

All-in-all, the response to this itself speaks of the lack of reasonableness of the decision under the circumstances. And how many cops were present towards the end of the footage. Fifteen? Twenty? Who is paying these people, and where are they now? 

Update on My Creepy Cops Search Case of Putnam County WV

Posted on by
1

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.

Police Caught on Doorbell Video Removing FJB Flag

Posted on by
2

A video went viral on Tik Tok showing Ring doorbell camera footage of a police officer removing a family’s “F” Joe Biden flag from its display on the front of the home. The homeowner explained in a subsequent video that he had been previously threatened with arrest for good ‘ole disorderly conduct if he continued to display the flag. Is this a violation of the First Amendment? What about the Fourth Amendment?

Back in February, I discussed the “F” the police T-shirt case out of Ohio, where the 6th Circuit issued an opinion denying qualified immunity to police officers sued for arresting a man for “disorderly conduct” for wearing a shirt containing protected First Amendment speech. In that case, the Court made very clear that police academies have to stop teaching young officers that any use of profanity is disorderly conduct. To the contrary, the law is clear that the First Amendment protects the use of profanity, so long as it’s unaccompanied by other conduct that could be construed as disorderly. Thus, the use of the “F word” in and of itself cannot be criminal conduct.

“It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’”

Cohen v. california scotus 1971

Not only can the “F word” be used, but it can be used to verbally criticize the police. Or, in this case, Joe Biden. As the U.S. Supreme Court has held, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state….”

Moreover, expressing criticism of a sitting U.S. President, via use of a flag, is pure First Amendment protected activity. The homeowner mentions in his follow up video that he had researched the town ordinances, and none were applicable, but rather that the mayor lived down the street and held an opposing political ideology. I’ll note that, even if there were a town ordinance, it would be unconstitutional, as a violation of the First Amendment. Now an HOA would be another matter, potentially. Why? Because that’s a private organization, and therefore cannot violate the First Amendment.

Also, what about the Fourth Amendment? As I’ve explained numerous times, the front porch of your home, which would include a flag sticking out of it, is considered part of your home – your castle – for Fourth Amendment purposes. If a police officer walks up and seizes a part of your home – something off of it – is that a seizure? You better believe it. Is it illegal? Illegal in this context means “unreasonable.” Unreasonable, when it comes to your home, is defined with a question: was there a warrant? No, then it’s illegal as a violation of the Fourth Amendment.