There is a video showing a female cop suddenly pull her pistol and point it at a driver’s head during a routine traffic stop. Then there was a subsequent video providing commentary and advice about the situation. However, the information was incorrect. There’s unfortunately a lot of misinformation floating around about the rights of vehicle occupants during traffic stops. It’s important to know your actual rights and not misinformation that could really cause you some serious problems.
What are your basic constitutional rights at a traffic stop?
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).
Additionally, “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). That rule, the justification for which is officer safety, extends to passengers, as well. Wilson, 519 U.S. at 414–15, 117 S.Ct. 882. (United States v. Vaughan, 700 F.3d 705 (4th Cir. 2012)).
As for the 9th Circuit, where this encounter took place, “pointing guns at persons who are compliant and present no danger is a constitutional violation.” Thompson v. Rahr, 885 F.3d 582 (9th Cir. 2018) (citing Baird v. Renbarger , 576 F.3d 340, 346 (7th Cir. 2009)).
We do not discount the concern for officer safety when facing a potentially volatile situation. But where the officers have an unarmed felony suspect under control, where they easily could have handcuffed the suspect while he was sitting on the squad car, and where the suspect is not in close proximity to an accessible weapon, a gun to the head constitutes excessive force.
This footage shows a woman in Michigan attempting to visit her mother in a nursing home. The facility decides to trespass her from the property and call law enforcement. Once the police arrive, she voluntary leaves – or rather attempts to leave. Then this happens…. Once again, the issue arises: can the police detain and forcibly ID a citizen who is in the process of voluntarily leaving a private business following a trespassing complaint?
Yesterday we filed a federal section 1983 civil rights lawsuit against the police officer featured in the “Hillbilly Law Degree” video posted back in October.
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?
This presents a common scenario where police officers attempt to manufacture a “stop and ID” law, where none exists:
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?
This footage comes to us from Birmingham, Alabama, where we see a police cruiser physically ramming a vehicle involved in a so-called exhibition driving event, which I take it means just doing donuts mostly, while people film. This officer is now under investigation by the Birmingham Police Department. Is that legal? Can a police officer ram a vehicle doing donuts, or whatever else “exhibition” driving consists of? What constitutional rights are at play?
In April of 2020, a 72 year old combat veteran, himself a retired law enforcement officer, was arrested in his barbershop, for refusing to close his business during the lockdown ordered by our Governor. The criminal case is long over. The civil lawsuit that I filed is also over at this point. But the footage is a good reminder about your government.
Government employees will follow orders. Law enforcement will follow orders, constitutional or not. It doesn’t matter whether they have an American flag tattoo and/or sticker on their truck. It doesn’t matter whether they spout off on the inter-webs about patriotism and the Constitution. They’ll follow orders. And never count on the judiciary to hold them accountable.
When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.
His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.
He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer.
The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order. He beat the criminal charge. Here’s an excerpt of the dismissal order:
In the subsequent civil lawsuit, we asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. Here’s the original complaint:
The point is, here is concrete proof that it matters not whether your local police officer is a nice guy, or patriotic, or whatever. They will follow orders. They are agents of the government. If they don’t do it, they will be replaced with someone who will. But they will do it, I assure you – even if they personally disagree with it. It would be a tragedy to lose the pension and dental plan, of course. Don’t get confused about the difference between an individual’s personality and personal beliefs and their status as an agent of the government. There are countless examples of this, going back to the beginning of our republic. Don’t get caught ignorant.
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.
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.