You’ve probably seen the “arrest for laughing” case that has gone repeatedly viral over the past few years. I’m actually the attorney on that case. Just yesterday the Court ruled on the officer’s motion to dismiss and request for qualified immunity. The officer claimed that flashing headlights to warn oncoming motorists was not protected free speech, and that he was justified in handcuffing, frisking and detaining the driver after he laughed at him. What did the Court rule?
Paul O’Brien, who lives in Grafton, West Virginia, observed a Taylor County Sheriff’s Deputy running a speed trap across the road from his residence. He posted on Facebook about it, joking that he WISHED he had an M-80 (firecracker) so that he could set it off and cause the deputy to have a heart attack. In the same post, he criticized the department for the deaths of three individuals over the years. Deputy Cody Mayle of the TCSD then paid Paul a visit at his home. He had no warrant, but rather just wanted to “talk.”
When Paul decided he didn’t want to talk with Deputy Mayle, Deputy Mayle suddenly grabbed him and arrested him. Paul spent two nights in jail. Around three months later, the frivolous charge of “obstruction” was dropped, since it was admittedly frivolous, according to the prosecutor. Paul submitted a complaint to the department, but heard nothing back.
This is Deputy Cody Mayle, who is seen on bodycam laughing as soon as Paul was thrown in the holding cell:
My last West Virginia based video coincidentally, was from Barbour County, which is only the next county over, and that deputy also has the same last name – Mayle. Here’s a link to that video. I’ll have more information soon about that situation…
This shocking footage was released by the Broken Arrow Police Department via their Facebook page. It shows the bodycam video of a police officer who “hates” a citizen named Richard. He really wants to arrest Richard, but all he has on him is a sketchy allegation of a parking violation. Does he just issue a citation and mail it to him, or go get an arrest warrant? No, he busts into Richard’s house illegally and violently arrests him inside his home. This is crazy footage showing one of the worst false arrests I’ve ever seen.
Here’s a screenshot of the Facebook post:
The comments are sort of hilarious though. Apparently everyone hates Richard – especially his neighbors, and they’re willing to overlook the concept of constitutional rights, just to keep Richard in jail for a little while longer.
A New Mexico law student, who has already been featured in an Audit the Audit Youtube video for cops harassing him at the entrance to his dorm room, has now been arrested in another unrelated incident. However, once the supervisor showed up, the student was quickly released with an apology. They ended up arguing back and forth on Fourth Amendment law. Who was right?
Joel Martinez Youtube channel is here with the original raw footage of both incidents.
Two police officers in St. Petersburg, Florida, arrested a homeless man for trespassing. The female officer who arrested him told him she was tired of citing him, so she was going to have him taken for a “ride” in the police van. He was shackled and placed in the rear of the van, that had no seatbelts. Along the way, the officer driving the van slammed on the brakes, rendering the detainee unconscious. But the officer didn’t stop. Later the officer opened the rear door to find the unconscious man. Then he dragged him out onto the ground. The man ended up paralyzed and having both his legs amputated.
In November 2020, 45-year-old Elisabeth Rehn was preparing for a bath when five Seattle police officers busted through her door and entered her apartment. She barely had time to throw a coat over herself when she was confronted at gunpoint by the officers. However, the officers had the wrong door, and in fact, the wrong building altogether.
Police officers arrived at a gym on a noise complaint. The gym owner expressed his displeasure at the officers’ presence. As they started to detain him, he went back into his gym and told the officers they could not enter. But they did enter and tased him and took him to the ground, and arrested him. Here’s the issue. The Fourth Amendment does not allow police to go inside your home and arrest you without a warrant. But what about your business? Did they need a warrant under the Fourth Amendment to arrest this gym owner?
Yesterday, the U.S. Fourth Circuit Court of Appeals issued a published opinion affirming the lower court’s denial of judicial immunity to former West Virginia Family Court Judge Louise Goldston. Judicial immunity cases are rare, so there’s no doubt that this one will be cited case law for many years to come. Procedurally, this means that the case now goes back to the trial court for a jury trial on the issue of money damages.
“The system here worked at every level,” John Bryan told The West Virginia Record. “The judicial disciplinary counsel, Teresa Tarr in particular, took immediate action, conducting a thorough investigation and then instituting formal charges, culminating in a state Supreme Court opinion that held Judge Goldston accountable. Without that, none of this would have happened. The Legislature also took action, forcing her into retirement due to her defiance following the Supreme Court opinion.
“And now here, the federal judiciary has made an example out of her that will keep rogue judges in check for decades to come.”
Several people sent me this video from the Crime Scene Cam youtube channel, showing a young, entitled couple confronting cops over their parked cars, several of which are in the public roadway. They learn several lessons here. But the more important lesson is the interplay in Fourth Amendment rights when it comes to the public road, versus the curtilage of your home.
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.
