Worst Cop Ever Prolongs Stop for Drug Dog and Baptizes Arrestees

How long can a traffic stop last? Can officers “prolong” a stop and order a drug dog? Also, can police officers baptize you in lieu of a ticket? April 17, 2019, William Klaver was driving south towards Chattanooga, Tennessee. Police Officer Daniel Wilkey, a Hamilton County deputy sheriff, stopped Klaver for a tinted-window violation. The driver didn’t know it at the time, but he was facing a police officer described by the New York Times seven months later as having been charged “with rape, extortion, stalking and assault,” as well as “false imprisonment, child molestation and forced baptism.” Yes, that’s right. “Forced baptism.” And there’s video, believe it or not. 

After stopping the driver and approaching his window, Wilkey told Klaver that he stopped him because his windows were “way too dark” and requested his driver’s license. It was 8:10 p.m. As Klaver searched for his license, Wilkey inquired about where Klaver was headed. When Klaver didn’t respond, Wilkey asked, “Not going to talk to me?” At about this time, Police Officer Tyler McRae, another Hamilton County deputy, pulled up and approached the vehicle’s passenger side window. After several seconds, Wilkey asked Klaver, “You okay?” and again requested his license. Klaver then asked, “Am I being detained?” Wilkey responded “yes” because of the “window-tint violation,” after which Klaver handed over his license. 

The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015). Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop.

The Supreme Court has provided a list of acceptable tasks that are connected generally to safety and driver responsibility:

Officers will usually question a driver about the traffic infraction; they will run the driver’s license plate; they will request and review the vehicle’s registration and insurance; they will check for outstanding warrants; and lastly they will write a ticket. Officers also commonly question drivers about their travel plans. So long as they do so during the time that they undertake the traffic-related tasks for the infraction that justifies the stop (Arizona v. Johnson), officers may also ask questions about whether the driver has drugs or weapons in the car, or even walk a drug-sniffing dog around the car (Illinois v. Caballes). These unrelated tasks turn a reasonable stop into an unreasonable seizure if it “prolongs” the stop. Officers may not avoid this rule by “slow walking” the traffic-related aspects of the stop to get more time to investigate other potential crimes. 

Once the traffic-related basis for the stop ends (or reasonably should have ended), the officer must justify any further “seizure” on a reasonable suspicion that the driver is committing those other crimes. See Hernandez v. Boles (6th Cir. 2020).

The reasonable suspicion basis for the traffic stop detainment was an allegation of dark tint. Later, the officers would argue the existence of other criminal suspicion, including suspicion of Klaver being a “sovereign citizen” and Klaver visibly shaking. This, they would argue, justified the officers suspecting Klaver of being in possession of drugs.  As Wilkey and McRae headed back to Wilkey’s cruiser, Wilkey said the words “sovereign citizen” to McRae. The officers then talked. Wilkey observed that Klaver’s van had an “obstruction” which was a Marine Corps sticker, over his license plate. He also claims to have noticed that Klaver was “shaking like a leaf.” He told McRae they should “make sure he ain’t got no pot or anything.” Wilkey suggested that they call for a drug-sniffing dog. McRae agreed because Klaver would “say no to a search.” A criminal background check revealed no relevant criminal history. 

About 5 minutes into the stop, the officers returned to Klaver’s van and requested his registration and insurance card. Wilkey continued to question Klaver. He asked him whether he had ever been arrested; whether he was on any “kind of medication” or had “any kind of disability,” because “you’re shaking.” He asked if he had “Parkinson’s or anything like that?” Klaver responded he didn’t think that Wilkey was entitled to ask him these questions. Wilkey responded that Klaver’s shaking suggested he was “hiding something” or had “drugs.” He asked, “you don’t have any of that, do you?” Klaver responded, “You know I don’t.” A minute later, Wilkey again asked Klaver if he had anything illegal in the car like “weapons or anything like that.” Klaver said no.

Did the deputies have reasonable suspicion to prolong the stop? 

To have reasonable suspicion here, the deputies needed a “particularized” belief (that is, one tied to Klaver) and an “objective” belief (that is, one tied to articulable facts rather than amorphous hunches) that Klaver possessed drugs. The court looks to the totality of the circumstances. 

The 6th Circuit rejected the officers’ claims that Klaver might be a “sovereign citizen” solely because he asked if they were detaining him. They noted that the video showed that Klaver was reasonably polite, not loudly confrontational. “Unless everyone who is reluctant to speak with the police might be a ‘sovereign citizen,’ the deputies’ claim appears to have rested more on a ‘subjective hunch’ than objective facts.” The Court noted that the officers failed to identify a single judicial decision or evidentiary citation suggesting that a person’s “sovereign citizen” status correlates with the likelihood of possessing drugs. Therefore the assumption was irrelevant. 

The 6th Circuit also rejected the officers’ claims that Mr. Klaver shaking justified a suspicion of possessing drugs. “Many law-abiding people show their nerves in the same way when confronted by the police . . . [s]o we have always given nervous shaking little weight,” as it “amounts to a weak indicator of crime.” The Court also rejected the officers’ claims that Mr. Klaver’s reluctance to cooperate or respond to questions, including about why he was shaking, justified a suspicion of possessing drugs. A suspect generally does not have a duty to cooperate, and so the lack of cooperation does not alone provide reasonable suspicion to believe that the suspect is committing a crime.” See Florida v. Bostick, 501 U.S. 429, 437 (1991).

Wilkey then asked permission to search the van. Klaver responded, “I refuse permission for you to search my vehicle” and said “there’s nothing in here.” Wilkey continued to ask many of the same questions he had already asked, about the reason for Klaver shaking.

At 8:18 p.m., now 8 minutes into the stop, the deputies returned to the police cruiser and requested a canine officer. Dispatch informed them two minutes later than one was in route to the scene. Wilkey then filled out paperwork for the traffic ticket over the next several minutes. At 8:24 p.m., McRae approached Klaver. A few minutes before, Klaver began recording video from inside his van. He filmed himself peeling the tint from the inside of his driver’s side door window. McRae attempted to ask him about his military service. Klaver responded that he didn’t mean to be “disrespectful,” but that he would not “answer any more questions.” He stated that he wanted to be “on my way” if they were not arresting him. McRae stated that Wilkey was writing a ticket. Klaver said they needed a reason to detain him. McRae described the window tint and license plate violations, and then returned to Wilkey’s cruiser. 

Deputy Wilkey continued filling out the ticket until the canine officer arrived at 8:32 p.m. The stop had now persisted 22 minutes. Wilkey told the canine officer that Klaver was likely a “sovereign citizen” who was “being combative” and “trying to conceal himself.” He said that the canine officer should let him finish with the ticket before deploying the dog in case Klaver “does something stupid.” Wilkey then returned to the van and ordered Klaver to exit the van for the dog sniff. He patted Klaver down and discussed the citation with him as the dog circled the van. Klaver now told Wilkey that the tint was now off his driver’s side window. 

At 8:40 p.m. Deputy McRae told Wilkey (and an incredulous Klaver) that the dog had alerted to drugs in the van. McRae and Wilkey then searched the van for five minutes. They found nothing. Wilkey again asked Klaver whether he had drugs. Klaver again answered that he did not.  As Klaver signed the citation, he said to Wilkey: “In case you were wondering, I have muscular dystrophy.” Wilkey replied: “That’s all you had to say, sir.” Klaver then drove off at 8:50 p.m.

Mr. Klaver filed a pro se lawsuit against Wilkey and McRae (among others). The defendant officers moved for summary judgment. The Court denied the motions on the ground that the officers unreasonably prolonged the stop without reasonable suspicion that Klaver possessed illegal drugs. The defendant officers filed an immediate appeal on qualified immunity grounds. The 6th Circuit issued an opinion on November 3, 2022.

The Fourth Amendment prohibits police officers from prolonging a traffic stop beyond the time necessary to investigate (and write a ticket for) a traffic violation unless the officers have reasonable suspicion that the stopped vehicle’s occupants are engaging in other crimes. Rodriguez v. United States, 575 U.S. 348, 354-56 (2015).

1. Did Wilkey and McRae prolong the stop beyond the time necessary to resolve the window-tint violation? 

2. If so, did they have reasonable suspicion to believe that Klaver was engaging in other crimes?

The 6th Circuit held that a reasonable jury could find that both Wilkey and McRae unreasonably prolonged the stop. 

The 6th Circuit upheld the denial of qualified immunity to the officers, noting that, “[w]e have a mountain of caselaw indicating that heightened nerves represent weak evidence of wrongdoing and cannot be the primary justification for a stop.

Stay tuned for Part 2, on the aftermath of Daniel Wilkey…

How Not to Arrest a Runaway Autistic Child

On February 23, 2022, a 12 year old autistic boy, reportedly ran away from home. Law enforcement was dispatched. That child encountered Deputy Matthew Honas, who handcuffed and hogtied the child, and then tased him without warning in the deputy’s police cruiser. This happened in Jackson County, Kansas. Although the officer was fired, the government is doing what government does: it’s hiding the video footage. Also, the government is protecting a bad cop, who is a threat to public safety. They fired him; then they let things settle down for awhile. Then, when it’s no longer in the news, the officer pops up somewhere else and continues working as a police officer. 

There was no report of the child committing any crimes, other than running away from home, which perhaps is some of juvenile delinquency status offense under state law. There was a history between the child and the officer, however. Deputy Honas had previously encountered the child and was aware he was autistic. During the prior encounter there was also a physical struggle, according to a report disciplining the officer. But no details are provided. 

Is there any video footage? How do we know what really happened? The Topeka Capital-Journal newspaper reported that Honas was not wearing a body cam, but that most of the interaction was captured by his in-car camera. The Capital-Journal attempted to obtain a copy of the footage via an open records request, but was denied under the open criminal investigation exception to disclosure under state law.

Honas was fired a little over a week after the incident. Termination of employment isn’t enough though. Why? Because bad cops just pop up somewhere else, usually in a small town that pays less. Then they get what they pay-for, which is a police officer who is already certified and experienced, but willing to work for less – because they’re damaged goods and a liability risk.

The Kansas Commission on Peace Officers’ Standards and Training, which oversees law enforcement certifications in Kansas, issued a disciplinary report that reprimanded Deputy Honas. The report concluded that Deputy Honas “used excessive force multiple times throughout his contact” with the child. He “shoved, elbowed, applied pressure points, carried, pulled, ‘hog tied,” and ultimately tased” the child.” During this time, the child was “sitting in the patrol car” and “not actively resisting.” His hands were cuffed behind his back. Deputy Honas began to press the child’s jaw pressure points without giving any direction to the child to do anything. This, the report concluded, “appeared to be of a punitive nature.” 

But it gets worse. Deputy Honas refused and cancelled assistance from two other available officers. He chose not to use de-escalation techniques; he failed to use other options in restraining the child. He said that he was going to call a transport van, but did not. On several occasions, Deputy Honas applied pain compliance techniques without telling the child what he was supposed to do. He told the boy, “When the other guy gets here, you’re going to hurt more.” He also said, “here’s the deal, you do anything you’re not supposed to do I will tase you again.” 

The report ultimately concluded that Deputy Honas engaged in “Unprofessional Conduct,” which at least in part, is defined as “using excessive physical force in carrying out a law enforcement objective.” The report, for purposes of law enforcement discipline in Kansas, then defines excessive force as “physical force . . . greater than what a reasonable and prudent officer would use under the circumstances.” Unfortunately, the report merely “reprimanded” Deputy Honas rather than revoke his certification to continue to work elsewhere in Kansas as a police officer. 

Isn’t it crazy that I just did another hogtying video, where there was body cam footage, out of Colorado. In that video I discussed some rare hog-tying law that existed in the 10th Circuit. Well guess what. It can be confusing to understand which states are in which federal circuits. But guess which federal circuit Kansas is in? That’s right, 10th Circuit, just like Colorado. There’s a 2008 case, Weigel v. Broad, out of the 10th Circuit, that denied qualified immunity to police officers for hogtying arrestees. Basically, it holds that hogtying is almost never reasonable, as it poses a high danger of positional asphyxiation.

Here’s the prior video:

Pastor Calls Cop a “TYRANT” and Gets Chased Into Church

On August 25, 2019 in Worcester, Massachusetts, police officers arrived outside Cornerstone Baptist Church. They were there attempting to retrieve a child after receiving a report of a custody dispute involving the granddaughter of the church’s pastor, Joseph Rizzuti, Sr. Officers arrived at the church to retrieve the child after the child’s father alleged that the mother had failed to return the child following a visit. Officers wrote in their reports that churchgoers and family members kept interfering, refused orders by police and resisted arrest. The body cam footage shows what happened. The church’s pastor, Joseph Rizzuti, Sr., stands outside the church, telling his daughter to leave. Worcester Police Sgt. Michael Cappabianca, Jr., walks over to him.

Is there a First Amendment right to call a police officer a “tyrant?” Yes. Does it matter whether he’s actually a tyrant or not? No. Does it matter whether you’re a pastor standing in front of your church or a homeless guy with a cardboard sign? No.

Cops Assume Woman is Trespassing | Lawsuit Filed & Bodycam Released

This incident occurred on September 6, 2022. Ms. Dunlap began her workday as a property manager in Fayetteville, North Carolina. Her boss asked her to visit, inspect and photograph a property where unknown individuals had illegally dumped trash on the property. She arrived, exited her vehicle and began taking photos of the property with her cell phone. Afterwards, she got back into her car. Suddenly, Officer Haddock with the Fayetteville Police Department approached her. He had parked his vehicle on the private property and represented to Ms. Dunlap that he was searching for someone who had run from the police. He then proceeded to interrogate Ms. Dunlap, questioning her as to the purpose of her presence on the property, implying that she was engaged in criminal wrongdoing. 

By the way, Harry Daniels, one of Ms. Dunlap’s lawyers, publicly challenged the Fayetteville Police Department’s claim that the officers involved were looking for a violent suspect who had last been seen half a mile away from the property. He said his team obtained police radio traffic implying there were no potentially violent suspects nearby. “The only person they was looking for was 20 miles away,” he said.

Detective Bell with the FPD then approached the back of Ms. Dunlap’s vehicle, as Ms. Dunlap politely and truthfully cooperated with the interrogation being conducted by Haddock. Bell then retrieved the vehicle’s license plate information, as Haddock continued to question the driver. However, Haddock’s questions and demeanor became more accusatory and harassing. Sensing that the officers were now detaining her under false pretenses and without a sufficient legal justification, Ms. Dunlap asserted her right to be free of unlawful seizures and requested to leave the property. 

Officer Haddock informed Ms. Dunlap that she was not permitted to leave, and therefore seized her for Fourth Amendment purposes. He demanded Ms. Dunlap’s identification card. She provided her name, as well as other information, but did not provide her card. Upon seeing that Ms. Dunlap was recording them detaining a citizen on private property without reasonable suspicion or probable cause, Detective Bell, the female officer, then approached the driver’s side door and began physically pulling at Ms. Dunlap, attempting to forcefully manhandle her out of the vehicle. 

The officers then forcefully removed Ms. Dunlap from the vehicle, snatched her cell phone out of her hand, thus ending her protection free speech of recording law enforcement actively engaged in misconduct, and physically harming her and then handcuffing her. Ms. Dunlap had an underlying condition of sickle-cell anemia. She began hyperventilating. She began breathing irregularly and then vomiting. As this was happening, the officers opened Ms. Dunlap’s fanny pack and obtained her identification card, without her consent.

After Ms. Dunlap is already in handcuffs, Sergeant Chris Kempf arrived on the scene. After seeing what was transpiring, he released Ms. Dunlap from he handcuffs. However, the officers still had her keys and she was unable to leave the scene. The officers did not provide Ms. Dunlap with a citation or other charging document. On September 8, 2022, Ms. Dunlap filed an internal complaint with the Fayetteville Police Department. On October 25, 2022, she filed a federal section 1983 lawsuit against the City of Fayetteville, the chief of police, Officer Ryan Haddock and Detective Amanda Bell. 

Several times in the footage, the officers mention “RDO.” Here’s what that is:

Resisting, Delaying, or Obstructing an Officer in North Carolina is defined by NC General Statute § 14-223:

“If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.”

The law states that if a person 1.) reasonably knew that the person they were resisting was an officer (the officer wore his/her uniform and badge and acted like an officer, or an undercover or plain-clothed officer made it known he/she was an officer) and that 2.) the defendant intentionally resisted or obstructed the officer, the person can be convicted of this misdemeanor. However, when giving orders or making an arrest, the officer must be lawfully discharging his/her official duties.

On October 25, 2022, she filed a federal section 1983 lawsuit against the City of Fayetteville, the chief of police, Officer Ryan Haddock and Detective Amanda Bell. There are three primary civil rights violations here under federal law: unreasonable search and seizure under the Fourth Amendment for the initial seizure and then prolonged detention, excessive force under the Fourth Amendment for the manner in which she was taken into custody, and First Amendment retaliation, for the officers’ response to Ms. Dunlap filming them. 

Here’s the lawsuit:

Helpful Cops Pepper Spray Old Guy Hit By 18-Wheeler | Lawsuit Filed

On the morning of February 1, 2022, 57 year old Benjamin Quarles was running errands in downtown Minden, Louisiana, after dropping off his wife for a medical appointment. She was a dialysis patient. Mr. Quarles is a school bus driver with no criminal record. As he approached an intersection, he stopped at a red light. While stopped, his car was struck from behind by an 18-wheeler dump truck. The impact pushed Mr. Quarles’ car into the intersection. He had violated no criminal or traffic laws.

Mr. Quarles stayed inside his vehicle. Shortly afterwards, two Minden Police Officers arrived at the scene. body cam footage captured what happened. Due to his wife’s condition, Mr. Quarles was apprehensive about the officers’ germs. As the officers approached him, he communicated to the officers that he wanted to keep his distance from them. For cops, this is sort of like rolling up your window most of the way at a traffic stop. They love that. This is a direct affront to their authority in their eyes. They see it as disrespect. Instead of actually communicating, which is what they’re supposed to be doing in these situations, they instead escalate and retaliate.

The officers yelled to Mr. Quarles that he was under arrest and to step out of the car. Mr. Quarles moved his left leg from inside the passenger compartment of the car and placed it on the ground outside the car. He looked at Officer McClaren and asked, “help me out of the car.” The officers refused. Mr. Quarles then, with his foot still outside the car, grabbed his cell phone off the console, before getting out of the car. At that moment, Mr. Quarles was pepper sprayed by Officer Hammontree, and yanked from his car by the two officers. 

Mr. Quarles was forcibly thrown to the ground. Then Officers McClaran and Hammontree left him lying on the ground, handcuffed and injured, with his mask soaked in pepper spray. He was left there on the ground until the ambulance arrived. He was transported to a local hospital emergency room for treatment. The entire time he was in the hospital, Mr. Quarles was guarded by two Minden police officers. How brave of them. Protect and Serve. That’s their motto.  Mr. Quarles was then put in a cage for a period of time, until his brother came and bailed him out. When he got his car back, he found it had been ransacked, presumably because it had been searched by the officers, obviously looking for the hidden cash and drugs. They didn’t find the cash and drugs, but they did apparently find a $30 Circle K gift card, as it was missing from the car after the officers finished with it. 

At the time this happened, Mr. Quarles was the victim of a traffic accident that was someone else’s’ fault. He had committed no crime. The subsequent accident report determined that he did nothing wrong. The two officers never bothered to determine whether Mr. Quarles was injured in the accident. They just escalated and retaliated, due to a perceived disrespect of their non-existent authority. 

There can be no doubt that due to the show of force by the officers, telling him he was under arrest, using force on him, pulling him out of the car, that he was subjected to a warrantless arrest at that point. A warrantless arrest requires probable cause that Mr. Quarles had committed some crime. There was no allegation of any crime having been committed. The officers charged him with a violation of Louisiana’s “Resisting an Officer” statute, i.e., “resisting arrest.” At his initial court appearance on March 2, 2022, that charge was dismissed on the motion of the prosecutor. The charge was most likely dismissed because the officers did not possess any probable cause to believe that Mr. Quarles had committed any crime prior to him being seized. The chicken cannot come before the egg. 

It’s always necessary to resolve the criminal charges before filing a section 1983 civil rights lawsuit. There are several reasons for this. Depending on the circumstances, a conviction of one or more of the criminal charges arising from the incident can bar a successful 1983 suit. For instance, if the claim is for false arrest, meaning a warrantless arrest performed in the absence of probable cause, one wouldn’t want to plead guilty to the facts you’re alleging didn’t exist. It can get complicated, but that’s the general idea. This is one of the first things I generally have to tell people. Sometimes getting rid of the criminal charges is easy; sometimes it’s not. 

In this case, a section 1983 civil lawsuit was filed and was just recently amended. It appears that the government is fighting hard against it. There is a pending motion to dismiss. What should government have done? They should have apologized and compensated for violating the man’s civil rights. If they didn’t have the evidence to even take the criminal case to a trial, they should compensate him. Then there’s the injuries they inflicted on him. They should compensate him for that. Why? Use of excessive force by police officers against an arrestee, or anyone really, is a Fourth Amendment violation. They are liable for damages, assuming they’re not awarded qualified immunity.

At some point there will be a ruling on qualified immunity in this particular case – probably after depositions are taken and there’s testimony for the court to analyze. I’ll try to keep an eye on this one, as I’m curious to see what happens here. I’ll be rooting for Mr. Quarles. 

Client Educates Cops on the Fourth Amendment | They Don’t Listen | He Wins in Court

There’s a dispute between a store and a customer. The store calls the police, reporting something that’s not a crime. The police show up to investigate the said non-crime. They demand ID. Now like many states, West Virginia does not have a “stop and ID” law. However, if they have reasonable suspicion a crime was committed, and that a particular individual committed that crime, they can perform an investigative detention which can involve forcibly obtaining an ID from a suspect. So what is the crime? Can the alleged crime of “trespassing” be used to detain and ID a shopper who has not been asked to leave the store, and who has not been given the opportunity, or even allowed, to leave the store by the responding police officer? 

On January 10, 2021, my client, John, went to Walmart, during all the insanity that shall not be discussed. He was not committing any crime. He felt he was being treated unfairly. He was just trying to buy some products and was in the process of checking out. But Manager Karen at Walmart called the cops on him, reporting that he was refusing to wear a thing she wanted him to wear, and using some bad words. A police officer responded, and this is her body cam footage. If a non-crime was reported, usually they are investigating a potential trespassing situation. The problem with that is, many states, like West Virginia, only penalize trespassing where a customer was given the opportunity to leave, but refused. If the person even offers to leave, and the cop says, no you can’t leave, give me your ID or you’re going to jail, is that legal? 

Here’s the police report narrative:

Here’s the motion to continue the criminal case hearing:

Here’s the motion to dismiss submitted by the prosecutor:

Here’s the footage filmed by the client:

Update: here’s the 911 call audio from the Walmart Karen:

Pregnant Teacher Stopped and Arrested | Officer Disciplined

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.

Family Court Judge Search Case Now at the Fourth Circuit

Imagine you’re sitting in family court and the judge looks at you and says, what’s your address? I’ll meet you there in 10 minutes, and I’m going to search your house with your ex-wife and my bailiff – a police officer who will arrest you if you don’t let me in. March 4, 2020, that’s what happened to my client. Here’s an update on the current status.

We won on the issue of judicial immunity. Just before the jury trial was set to begin, the defendant judge appealed the case to the Fourth Circuit. Since this matter involves judicial immunity, it’s capable of being appealed prior to trial. Usually a defendant is required to wait until afterwards.

They just filed their brief a couple of days ago. Next it’s our turn to file a response brief, which is due mid-November.

Here’s the federal court opinion denying judicial immunity:

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

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.”

Officer Meltdown During Open Carry I.D. Refusal in WV | What Happened in Court

On February 21, 2018, Putnam County Sheriff’s Office Deputy B.E. Donahoe responded to a complaint relayed from the emergency dispatch center that someone had reported that there was an individual walking down the side of a public road while in possession of a firearm.  The individual was the plaintiff, Michael Walker, who being a victim of epileptic seizures, does not have a driver’s license.  He was headed coyote hunting, and had a rifle strapped over his back, along with a backpack.  Deputy Donahoe brutally insulted Mr. Walker, who was being polite, but insisting that he had committed no crime, and therefore should not be stopped and forced to hand over his ID. Donahoe repeatedly called him a “c_cksucker” while forcibly detaining him and running a criminal background check on him and questioning him as to why he would need an AR-15. The incident was fully captured on video by Mr. Walker.

At the time Deputy Donahoe responded to the scene, he possessed no prior knowledge of Mr. Walker.  All he knew about Mr. Walker is what he observed when he arrived at the scene, which was observing him walking down the side of the road.  He didn’t recall who had called 911, or specifically what the complainant had stated, other than that there was a guy walking down the side of the road with a firearm. Upon arriving at the scene, he observed Mr. Walker walking down the side of the road with a rifle “strapped across his back,” with the muzzle of the gun pointed towards the sky.

Upon arriving at the scene, Mr. Donahoe did not observe Walker committing any criminal activity. Nor was he informed by any other source that any crime had been committed by any individual. Walker was just walking. Donahoe had no indication that Mr. Walker was a person prohibited from possessing a firearm. Donahoe testified that he did not observe Mr. Walker doing anything unsafe with the rifle strapped on his back; nor did he observe the rifle in Mr. Walker’s hands; nor did he observe Mr. Walker acting threatening in any way.  His only reason for stopping Mr. Walker was to find out if he was a prohibited person.

As portrayed by video footage taken by Mr. Walker with his phone, the interaction was not consensual. Donahoe gave Mr. Walker “no choice” in the matter. He told him during the stop that he was not free to leave until he was done with his investigation. Donahoe explained that the only investigation he was undertaking at the time, to which Mr. Walker was forced to submit, was to run Mr. Walker’s criminal history report, in order to determine whether he “was a person that could possess a firearm.” Admittedly, he had no information indicating that Mr. Walker may have been a prohibited person.

The case is over. We lost. Compare the video footage of the encounter with the legal aftermath, from the trial court level, through appeal to the Fourth Circuit, oral arguments, and ending with a deeply flawed published Fourth Circuit opinion. This case demonstrates what I refer to as a Bermuda Triangle of civil rights law….

Here we are following the hearing at the U.S. District Court in Huntington, West Virginia.

The U.S. District Court granted summary judgment for the officer, dismissing the lawsuit filed by Michael Walker. The order essentially created a carve-out for AR-15 style rifles from the usual reasonable suspicion analysis:

Here, Walker’s possession of an AR-15-style rifle under these circumstances was unusual and alarming. Whereas possessing an AR-15 at a shooting range or on one’s own property would not raise an eyebrow, there was no obvious reason for the rifle’s possession here.

Unlike a holstered handgun, like that at issue in U.S. v. Black, AR-15s are not commonly carried for self-defense. 707 F.3d at 535. Nor are they traditionally used for hunting. Seeing Walker at 6:00 p.m. in February in an urban area would further diminish an inference that Walker possessed the rifle for hunting because the sun would soon set and hunting after dark is generally prohibited.

The rifle being uncased, ready to fire at a moment’s notice, and Walker’s camouflage pants also contributed to an unusual presentation of the firearmSee Embody, 695 F.3d at 581 (finding an openly carrying man’s military-style camouflage clothing contributed to reasonable suspicion); Deffert, 111 F. Supp. 3d at 809, 810 (holding the same).

The sight was unusual and startling enough to prompt a concerned citizen to dial 9-1-1 and for Donahoe, based on his practical experience, to investigate Walker’s destination. See Deffert, 111 F. Supp. 3d at 809 (holding an officer responding to a 9-1- 1 call about a man carrying a firearm, as opposed to randomly stopping the man, supports finding reasonable suspicion); Smiscik, 49 F. Supp. 3d at 499 (holding the same).

Together, these facts would form a particularized and objective basis for an investigatory stop.

Here is the full District Court Order that was appealed to the Fourth Circuit:

This was our opening brief to the Fourth Circuit:

Listen to oral arguments from this case at the Fourth Circuit:

Here’s me actually arguing to the Fourth Circuit panel, via my computer, in the bizarro world that was 2021 America:

Here’s the Fourth Circuit Opinion that ensued:

Here is our petition for rehearing en banc, which was denied: