It’s happened yet again – this time in Ohio – where police arrive to a trespassing complaint at a business (this time at a McDonald’s) and instead of allowing the person to leave the business, they instead detain and forcibly ID the individual. Do police officers have the right to detain someone under these circumstances? More importantly, do they have NEED to do so?
An incident that led to an officer hitting a woman multiple times Monday began as a dispute over missing cheese on a Big Mac. Butler Twp. Sgt. Todd Stanley and Off. Tim Zellers responded at 4:20 p.m. to a call about a disorderly customer at the McDonald’s at 3411 York Commons Blvd., and on arrival, officers spoke to Latinka Hancock, according to a police report.
When the woman refused to provide her ID, the officers engaged in a brutal and violent use of force against her, which one customer inside the McDonald’s caught on video:
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?
Here is the woman’s Youtube channel where she documents the entire ordeal.
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?
Here’s yet another video showing police officers mistreating one of our military veterans for absolutely no good reason. Gee, I wonder, what’s the common theme? Some of you are quick to criticize me anytime I bring up race. Here’s the thing. The Constitution requires police officers to have reasonable suspicion that a crime was committed before detaining an American citizen.
Does the Constitution allow police officers to pull people over based on a hunch? No. Does the Constitution allow police officers to pull people over based on their skin color? No. Does the Constitution allow police officers to pull people over and detain them for any reason at all, short of actual reasonable suspicion that some crime or traffic law has been violated by the driver? No. Do we see them do so in video after video, after video? We sure do. Let’s take a look at this one from Jacksonville, Florida, showing the traffic stop and warrantless arrest of Navy Veteran Braxton Smith.
On October 9, 2022 around 2:30 a.m. Dalvin Gadson, a homeless veteran, living in his car temporarily, was stoped by officers with the Colorado Springs Police Department, Sand Creek Division, for not having a license plate on his vehicle. Dalvin was a former helicopter mechanic in the Army National Guard. He apparently had no prior criminal history.
He had been homeless for about 3 to 4 months, living in his car and delivering Door Dash to save enough money for an apartment. While sleeping in his car, a stranger named Carlos knocked on his car window, woke him up, and asked him to drive him to his job. He offered to pay him $20.00 for the ride. He needed the money, so he agreed. Then he was pulled over by the police. Remember as you watch this: the reasonable suspicion of criminal conduct forming the basis for the stop was a license plate violation.
This is how the traffic stop ended:
This is apparently the happy officer who beat him, showing off his injuries for the purpose of trumping up bogus criminal charges:
My last video showed the deputy I called “Officer Friendly Eyes” threatening a young guy who had been jumped by a bunch of local guys in a bar. His name is actually Tony Link. I knew that name sounded familiar to me. It was probably because he’s already been featured in one of my videos. Though he really only made a cameo appearance of sorts. Did you see the video where my client was shot through the closed front door of his home?
Also, here’s some new footage I was provided showing him at a traffic stop. He pulls a guy over for an expired inspection sticker. It does appear to be expired. But the registration has been renewed apparently – just no sticker yet. Once he discovers this, Link does not send the driver on his way. The reasonable suspicion for the stop has been cleared up. There’s no additional reasonable suspicion, so Friendly Eyes does what cops like to do and just makes it up.
Once again, a police officer films himself committing a civil rights violation. This is an extremely important issue. It’s already super easy for police officers to stop and detain an innocent person just following a driver long enough and looking for one of the hundreds of available traffic law violations, or even by just lying about observing a traffic law violation. We’ve all known compulsive liars. They justify their behavior in their own minds by convincing themselves that they’re telling the truth – or that it’s for a good cause. When it comes to police officers and constitutional rights, our freedom hangs in the balance. It’s a slippery slope, so there can be no compromise.
In this footage we see an unlawful stop, based completely on a lie, documented by the officers’ own dash cam footage. It makes no difference, legally speaking, whether the lie was malicious, or done with good intentions. This is where most of us will encounter police officers. This is also where police officers can easily get away with racial profiling or other discrimination or harassment of innocent people. The threshold is very, very low for police officers to lawfully stop a vehicle and detain the driver. Where they are caught doing so illegally, there needs to be consequences and accountability.
Fortunately, there may be some accountability coming for these police officers. This footage comes to us from a fantastic new video released by the Institute for Justice, detailing a section 1983 lawsuit they just filed this month in Louisiana. I’ll post a link to the video and press release by the IJ in the description. I also urge you to donate to their cause. They do fantastic work protecting our freedom.
On June 15, 2022, Mario Rosales and his passenger Gracie, were driving in Alexandria, Louisiana. They both worked for an HVAC business and had just left from work. It was around 5 p.m. In his red Mustang, while sitting at a traffic light, Mario properly signaled a left turn and then proceeded to turn left. Two police officers with the Alexandria Police Department, Jim Lewis and Samuel Terrell, were behind him. The officers had no reason to suspect that Mario had committed any crime, including a traffic violation. His tags were current. The vehicle was in proper working order and didn’t appear to give rise to any justification for a traffic stop. There was no lawful reason for the stop.
Here’s the full raw footage:
In the end, due to the fishing expedition, the officers end up charging Mario with three violations: failure to signal, and two hyper-technical violations pertaining to residence and vehicle registration. Fortunately, all three charges were dismissed. Assuming that someone on a bench somewhere was looking at this footage and measuring it against the Constitution, those charges had to be dismissed. Why? Because the initial stop was illegal. Therefore, everything that happened afterwards is fruit of the poisonous tree. Well, the failure to signal was easily disproved by the video footage. But the two hyper-technical residency violations would also have to be thrown out because they were only discovered as a result of the officers’ illegal behavior.
Police officers must have reasonable suspicion that the driver committed a crime or traffic violation in order to justify a traffic stop detainment. In order to have valid reasonable suspicion here, the officers must have had some belief particular to Mario, based on the totality of the circumstances, that Mario committed some violation. Just a hunch by Officer Fifth Amendment here is not enough. His instincts are either way, way off, or he racially profiled Mario. Or maybe he just doesn’t like Mustangs. Either option violates the Fourth Amendment.
Even if there was a failure to signal, what other problems would we have here? As I explained in a previous video about traffic stops: 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. Officers may detain the driver only for the time necessary to complete the tasks associated with the reason for the stop. 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.
As we saw in the footage, this wasn’t just a regular traffic stop, Officer Fifth Amendment chose to take Mario out of his car, for an extended period of time and question him about criminal allegations completely unrelated to the supposed reason for the stop. For that to be legal, the officer would need to have separate reasonable suspicion particular to Mario – not just anyone and everyone he stops – that Mario may be involved in the suspected illegal activity. Thus even if the failure to signal allegation wasn’t a lie, the Fourth Amendment would still be violated. And then there’s a First Amendment violation in there for refusing Mario and Gracie the option of filming these lying police officers. That is well explained in the IJ’s complaint
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…
