Tag Archives: fourth amendment law

Update on My Creepy Cops Search Case of Putnam County WV

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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

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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.

ATF Agents Show Up at the Door to Check Firearms Purchases

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Video footage was released from a Delaware man’s Ring Doorbell showing two ATF agents and one Delaware State Police trooper questioning a homeowner about recent firearms purchases. The footage, accompanied by an article at Ammoland.com, explained that the homeowner, in hindsight, felt that his privacy has been invaded and that he felt coerced into cooperation with the officers. The officers explained that they were part of a task force investigating potential straw purchases, which occur when someone buys a firearm on behalf of another person, who is otherwise unable to purchase directly. They had records in-hand, showing the homeowner’s recent purchases, and they said they wanted to verify that the man still had the firearms. Here’s the footage:

It’s clear that the officers had no warrant. But what did they need, if anything, as far as criminal suspicion goes?

The Delaware State Trooper, who by the way, is part of an organization that has close to zero respect for the 2nd Amendment, and which has already been caught maintaining secret lists of gun owners, had this to say about the reason they were there: 

“The reason we’re out here is obviously gun violence is at an uptick. We want to make sure – we’ve been having a lot of issues with straw purchases. One of the things, indicators we get is someone making a large gun purchase, and then a lot of times we’ve been there and ‘Oh, those guns got taken.’”

One of the ATF agents had this to say about why they were there:

“It just came up. We came here, look, I’m telling you. There’s an email from the federal side saying can you make sure this guy’s got his guns. If you recently purchased a whole bunch of guns, if we can look at them and just scratch them off…”

Therefore, it appears to be the case that there is no particularized information pertaining to this homeowner, indicating that he may have committed some crime – or even that a crime had been committed in the first place. Basically, he purchased multiple firearms and theoretically, anyone who purchases multiple firearms could potentially have purchased them as straw-conveyances for third parties. Since this is not particularized to the homeowner, it could not form the basis of either reasonable suspicion or probable cause. 

However, since the man is in his home, neither reasonable suspicion, nor probable cause, is all that relevant. The officers have two options. They can obtain a search warrant, which would require a finding of probable cause, approved by a judge, in advance, in which case there would need to be particularized facts about the homeowner. Or, they can do what cops call a “knock and talk,” which is what appears to have happened here. 

The legal theory is this: so-called consensual encounters don’t implicate the Fourth Amendment in the first place. Basically it’s a conversation with the consent of an individual. There’s no detainment. Cops are free to talk to someone willing to talk with them, just like anyone can. Because doing so doesn’t trigger Fourth Amendment protections, no reasonable suspicion is required, much less probable cause. That’s what the officers were attempting to do here. They clearly had no reasonable suspicion, assuming they weren’t lying (which is an entirely different legal issue).

The homeowner felt coerced. So here’s the legal issue: Would a reasonable, regular person believe that he was not free to terminate the encounter? A person is seized within the meaning of the Fourth Amendment “only 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 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.” Or, in the context of a location the citizen doesn’t want to leave, such as their front porch, the appropriate question is whether that person would feel free to “terminate the encounter.” (Florida v. Bostick 1991).

There could be a number of relevant factors that could determine these questions, such as the number of officers present, their appearance, their actions, as well as their demeanor, such as whether they were non-threatening, and whether they acted as though they suspected the individual of illegal activity, rather than treating the encounter as “routine” in nature.

Here, there were multiple officers. They appeared to make an express attempt to act like they were non-threatening in demeanor and engaged in a routine investigation. But on the other hand, there were three of them, positioned in what some could argue as a threatening manner: spaced out in front of the house, as if they were dealing with a known criminal, as opposed to a law abiding citizen in a nice neighborhood. There was some tactical gear on display and they were obviously armed. Of course, we’d know for sure had the homeowner actually attempted to terminate the encounter.

Street Preacher Arrested in Bluefield, WV for Graphic Anti-Abortion Signs

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Edgar Orea brought me this footage. He’s a street preacher who was arrested in Bluefield, West Virginia for the content of his protected First Amendment speech. Edgar and his wife moved to Bluefield in order to serve the people of nearby McDowell County, West Virginia, which is the poorest county in the entire nation. But from the very beginning, they were harassed by the Bluefield Police Department, as you’ll see in the video. The police objected to the content of their message. In this particular incident, they actually arrested Mr. Orea and took him to jail based on the content of his anti-abortion sign, which showed an aborted fetus.

There was a similar case litigated in Kentucky: World Wide Street Preachers’ v. City of Owensboro, 342 F.Supp.2d 634 (W.D. Ky. 2004). In that case, another street preacher was arrested in a public park for showing a large sign with a similar photograph of an aborted fetus. The police claimed that this was causing public alarm and was likely to cause a confrontation. So they cited the individual, but otherwise didn’t arrest him or interfere with his other activities. The Court held:

A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)….

In light of Supreme Court precedent, the Court cannot find that the Plaintiffs’ sign, no matter how gruesome or how objectionable it may be, constitutes “fighting words.” The Plaintiffs’ speech, whether one agrees with it or not, was certainly not of “slight social value.” Rather, their speech was a powerful, albeit graphic commentary on a societal debate that divides many Americans. Furthermore, their speech was not directed at any particular person. Their speech commented on a highly significant social issue and was calculated to challenge people, to unsettle them, and even to anger them, but not to insult them. Such social commentary is not only protected under Supreme Court precedent but also is highly valued in the marketplace of ideas in our free society. 

Here, the Bluefield Police Department did much more than issue a citation, but rather placed Mr. Orea in handcuffs and carted him off for incarceration. Then they refused to return his signs, except for one. They charged him with two criminal misdemeanors: disorderly conduct and obstruction, two favorites of law enforcement officers for arresting people who have committed no crime. Fortunately, the charges were dismissed by the Court following a motion to dismiss based on the First Amendment.

Case of Michigan Man Sitting in WV Jail Begs the Question: Do Police Need a Warrant to Enter/Search/Seize an RV or Motorhome?

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In my last video I featured the case of a Michigan man currently rotting in a West Virginia jail for the high crime of traveling through West Virginia with a few hemp plants, possibly marijuana, I don’t know. A video of him refusing to consent to police entering his RV was shown in a Youtube video by the Real News Network, highlighting the actions of the Milton Police Department (which is in Cabell County, WV), including the fact that they take in a huge amount of fines as a result of their policing, despite having only around 2,500 residents. This begs the question, first of all, in general, do police need a warrant to enter, search, seize, etc., an RV or motorhome? Or is it just like regular automobiles, where only probable cause is required, rather than a warrant? Here’s the video, and below I’ll post an explanation of the applicable law:

Do police need a warrant to search an RV?

The Fourth Amendment generally requires the police to obtain a warrant before conducting a search. There is a well-established exception to this requirement, however, for automobile searches. See, e.g., Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Under this exception, “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). Thus, once police have probable cause, they may search “every part of the vehicle and its contents that may conceal the object of the search.” Id. 

In California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the Supreme Court held that a mobile home, on the facts presented, was more characteristic of an automobile than a fixed residence. 

The Court did look to the nature of the location where the vehicle was discovered, but only to ascertain whether the vehicle itself was, in an ontological sense, in use as a “movable vessel” or as a fixed residence. Hence, the Court’s reference to a “place not regularly used for residential purposes,” Carney, 471 U.S. at 392, 105 S.Ct. 2066 — from which the police would be less likely to infer that the object was residential in nature — served as a guidepost to determine, whether the object encountered was a vehicle or a residence. 

Summed up: was the RV on a public road, or situated such that it is reasonable to conclude that the RV was not being used as a residence?

1. Is the vehicle readily mobile? Absent an immediate search and seizure, could it have quickly been moved beyond reach of the police? Was the vehicle licensed “to operate on public streets” and subject to inspection as a motor vehicle?

2. Was the vehicle so situated that an objective observer would conclude that it was eing used not as a residence, but as a vehicle?

3. The search still must be reasonable under the circumstances. Was the search that occurred otherwise reasonable as would have been approved by a neutral judge had the officer applied for a search warrant?

If the vehicle can be categorized somewhere within the realm of a residence, rather than an automobile, then a warrant may be required. As with many search and seizure issues, the result will turn on the particular facts of each case. Or they should anyways…..