Isn’t that weird that I just did a video on the issue of whether there’s a constitutionally protected right to flash your lights at oncoming traffic, in order to warn them of an approaching speed trap, and then what do you know, it ends up happening again right here in West Virginia. This brand new exclusive footage you’re about to see however, is the worst of those incidents I think you’ll ever see anywhere on Youtube. Frankly, I’m disgusted by the actions of this deputy with the Nicholas County, West Virginia Sheriff’s Department.
Here’s the citation William was given:
This was Corporal J.D. Ellison with the Nicholas County Sheriff’s Department. His behavior was disgraceful. But I’m also disappointed in the aftermath here. Corporal Ellison shamefully gave this man a ticket for two alleged violations – at least on paper – which were allegedly having an unsigned registration card, which is total garbage, as well as an alleged “special restrictions on lamps,” which was a frivolous charge meant to fabricate the nonexistent crime of warning fellow Americans about government waste, laziness and tyranny.
Here’s the police report by Cpl. Ellison:
You’re really not going to believe this, but William went to court yesterday in the Magistrate Court of Nicholas County – that’s Summersville, West Virginia. He represented himself. He was being prosecuted by a prosecuting attorney from that county, with the matter presiding before Nicholas County Magistrate Michael Hanks. I’m really shocked to tell you that Magistrate Hanks convicted this man of the alleged crime of “Special Restrictions on Lamps.” He did dismiss the bogus charge of having an unsigned registration card because it’s thankfully not even on the books anymore – which by the way was the offense for which William was placed in handcuffs.
Between the prosecutor and the magistrate, which of those great legal minds thought it was a good idea to convict William of “special restriction on lamps?” Just looking at the statute, which is clearly not meant to apply to this situation, it makes an explicit exception, citing a different statute that allows for flashing lights for the purpose of warning the operators of other vehicles “of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking or passing…, etc.”
Here’s the prior video I did on flashing lights to warn of a speed trap:
Stay tuned for updates. I’m going to help William….
On August 19, 2022, Joshua Gibbons arrived at Aerojet Rocketdyne Corporation in Jonesborough, Tennessee. He sent me a link to his video of him getting arrested shortly afterwards. A few other people submitted this video as well.
The police officer, a deputy with the Washington County Sheriff’s Office, jumped straight into a warrantless arrest here. He needed probable cause to arrest Josh without an arrest warrant. There are three levels of interaction between a police officer and an individual:
A consensual encounter;
An investigatory detention; and
A warrantless arrest.
Number 1 requires nothing, so long as it’s objectively consensual. Fourth Amendment protections to not apply to consensual encounters.
An investigatory detention requires reasonable suspicion. Fourth Amendment protections do apply to detentions. They must be reasonable.
A warrantless arrest requires probable cause.
Here, the officer appears to have skipped directly to number 3, a warrantless arrest, which requires probable cause.
What is the basic criminal trespass law in Tennessee?
State v. Hollingsworth, 944 S.W.2d 625 (Tenn. Crim. App. 1996).
Before an accused can be convicted of criminal trespass, the State of Tennessee must prove beyond a reasonable doubt that (a) the accused entered or remained on the property, or a portion of the property, of another person, and (b) the accused did not have the owner’s effective consent before entering the property. Tenn.Code Ann. § 39-14-405(a)…
The accused’s knowledge that he or she did not have the “effective consent” to enter the property may be inferred from “(1) personal communication to the [accused] by the owner or by someone with apparent authority to act for the owner,” and (2) “[f]encing or other enclosure obviously designed to exclude intruders.” Tenn.Code Ann. § 39-14-405(a)(1) and (2).
State v. Lee (Tenn. Crim. App. 2000).
Knowledge that the person did not have the owner’s effective consent may be inferred where notice against entering or remaining is given by personal communication to the person by the owner. Tenn. Code Ann. § 39-14-405(a)(1).
Was he on public or private property? If he was on private property, did Josh have knowledge that he was on private property without the owner’s consent? As far as the issue over public or private property, more information is needed. With the information given however, we know the following:
Josh subjectively believed he was located within the public right of way. Being right on the edge of the public road, he very well may have been. You’ll notice that there was a fence a little further off the road. Josh was nowhere near that fence. Josh credibly demonstrated to the police officer that he subjectively believed he was on a public right of way, and not trespassing onto a private owner’s land. Secondly, the police officer didn’t know one way or the other whether Josh was within a public right of way, or on private property. Moreover, even if Josh was on public property, the officer admittedly didn’t know who the owner was.
Therefore, there’s a great case to be made that Josh could not have violated Tennessee’s criminal trespassing statute. Even if he was on private property, there’s no evidence that he had the requisite criminal intent to commit trespassing. Additionally, the officer performed almost no investigation prior to his warrantless arrest. Surprisingly he didn’t even bother to request Josh’s ID first. He just arrested him.
You may have seen the video I posted last week of police harassing private citizens on their own front porch here in West Virginia. This sort of behavior happens all the time: cops show up to a private residence, they knock on the door. What are your rights in that situation? What rights to the police have to do what they’re doing? Let’s make some things clear.
For instance, in the McDowell County video I just posted, the officer can be heard multiple times in the body cam footage, claiming that he had reasonable suspicion to justify his behavior, based on the fact that he found what he believed to be four marijuana plants near the home. Based on that, the officer demanded the name and birthdate of the property owner, who was standing on the porch.
Can police officers, assuming they have reasonable suspicion to believe that a crime was committed, and the property owner on the front porch may have committed it, demand identification under penalty of arrest for obstruction for noncompliance? That’s what ended up happening, of course, as you’ll see if you watch the footage of what happened to Jason Tartt.
The too-long-didn’t-watch answer is no. If police officers are on your private property, that changes things. Cops are trained on the requirement for reasonable suspicion – to develop some reasonable suspicion they can articulate, even if total B.S., and then that entitles them to forcibly demand identification from whomever they deem a suspect. That is generally how things work in public places – but not on private property, especially a home.
Let’s look at this scenario of police on your front porch and make sure we’re all on the same page about what the law is, and what the law is not, for both police and the occupants of private property.
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. The Fourth Circuit, where the porch video occurred, just in 2015 issued an opinion holding that a warrantless search of curtilage is presumed to be unreasonable. (Covey v. Assessor of Ohio County).
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.
Some of these broad Supreme Court holdings have been interpreted in slightly different ways in different federal appellate circuits. The porch video from last week was from West Virginia, which is in the Fourth Circuit.
The Fourth Circuit made clear as early as 2001 that police officers will be denied qualified immunity for failing to comprehend that they have no right to enter a home’s curtilage to make an investigation based on reasonable suspicion. (Rogers v. Pendleton). They have no “right.” All they can do is engage in what’s called a “knock and talk.” This is the scenario in the large majority of these front door encounters with police.
That’s right… Police officers in the Fourth Circuit were cautioned in 2001 that they would be denied qualified immunity for ignorantly believing the existence of reasonable suspicion allowed the to enter and remain in a homeowner’s curtilage without consent of the homeowner. Yet it seems that it’s still being taught to officers, and being used to arrest people.
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.
What about no trespassing signs? This is a topic of dispute, and can vary by federal circuit. The Tenth Circuit had a particularly bad opinion on this in the Carloss case, which resulted in one law professor creating “LAWn” signs providing notice to the police that their implied license to perform a knock and talk at the address is revoked. No trespassing can be ambiguous. One could certainly be more specific and avoid the grey area. Of course, another option is verbally telling the police that they’re not welcome and ask them to leave. That’s hard for a lot of people to do. Police know this and use it against you.
Back to the McDowell County porch case, the officer thought he was smart saying he had reasonable suspicion, and now you have to provide identification or else get arrested for obstruction. But his own footage dooms his defense. He’s well inside private property. The homeowners have clearly expressed that they were afraid of him, asking for his name, which he refused. He arrested their landlord by physically seizing him on the front porch, well within the home’s curtilage, without probable cause and a warrant. The video disproves any later claim of exigent circumstances. More than that – I haven’t shown this footage yet – but he then radioes his superiors on the drive to jail – telling them repeatedly what he had done. There is obviously either a policy of civil rights violations in this department, or systematic ignorance, or both.