Police Officers Indicted for Death of Breonna Taylor

The U.S. DOJ announced in a press release today that police officers involved in the Kentucky shooting death of Breonna Taylor have been charged with federal felony civil rights violations. A federal grand jury in Louisville, Kentucky, returned two indictments that were unsealed today, and the Department of Justice filed a third charging document today, in connection with an investigation into the circumstances surrounding the death of Breonna Taylor, a 26-year-old woman who was shot and killed in her Louisville home on March 13, 2020, by police officers executing a search warrant.

“The Justice Department has charged four current and former Louisville Metro Police Department officers with federal crimes related to Breonna Taylor’s death,” said Attorney General Merrick B. Garland. “Among other things, the federal charges announced today allege that members of LMPD’s Place-Based Investigations Unit falsified the affidavit used to obtain the search warrant of Ms. Taylor’s home, that this act violated federal civil rights laws, and that those violations resulted in Ms. Taylor’s death.

“On March 13, 2020, Breonna Taylor should have awakened in her home as usual, but tragically she did not,” said Assistant Attorney General Kristen Clarke. “Since the founding of our nation, the Bill of Rights to the United States Constitution has guaranteed that all people have a right to be secure in their homes, free from false warrants, unreasonable searches and the use of unjustifiable and excessive force by the police. 

The first indictment charges former Louisville Metro Police Department (LMPD) Detective Joshua Jaynes, 40, and current LMPD Sergeant Kyle Meany, 35, with federal civil rights and obstruction offenses for their roles in preparing and approving a false search warrant affidavit that resulted in Taylor’s death. The second indictment charges former LMPD Detective Brett Hankison, 46, with civil rights offenses for firing his service weapon into Taylor’s apartment through a covered window and covered glass door. The third charging document — an information filed by the Department of Justice — charges LMPD Detective Kelly Goodlett with conspiring with Jaynes to falsify the search warrant for Taylor’s home and to cover up their actions afterward.

The first indictment — charging Jaynes and Meany in connection with the allegedly false warrant — contains four counts. Count One charges that Jaynes and Meany, while acting in their official capacities as officers, willfully deprived Taylor of her constitutional rights by drafting and approving a false affidavit to obtain a search warrant for Taylor’s home. The indictment alleges that Jaynes and Meany knew that the affidavit contained false and misleading statements, omitted material facts, relied on stale information, and was not supported by probable cause.  The indictment also alleges that Jaynes and Meany knew that the execution of the search warrant would be carried out by armed LMPD officers, and could create a dangerous situation both for those officers and for anyone who happened to be in Taylor’s home. According to the charges, the officers tasked with executing the warrant were not involved in drafting the warrant affidavit and were not aware that it was false. This count alleges that the offense resulted in Taylor’s death.

Count Two charges Jaynes with conspiracy, for agreeing with another detective to cover up the false warrant affidavit after Taylor’s death by drafting a false investigative letter and making false statements to criminal investigators. Count Three charges Jaynes with falsifying a report with the intent to impede a criminal investigation into Taylor’s death. Count Four charges Meany with making a false statement to federal investigators. 

The second indictment —against Hankison — includes two civil rights charges alleging that Hankison willfully used unconstitutionally excessive force, while acting in his official capacity as an officer, when he fired his service weapon into Taylor’s apartment through a covered window and covered glass door. Count One charges him with depriving Taylor and a person staying with Taylor in her apartment of their constitutional rights by firing shots through a bedroom window that was covered with blinds and a blackout curtain. Count Two charges Hankison with depriving three of Taylor’s neighbors of their constitutional rights by firing shots through a sliding glass door that was covered with blinds and a curtain; the indictment alleges that several of Hankison’s bullets traveled through the wall of Taylor’s home and into the apartment unit occupied by her neighbors. Both counts allege that Hankison used a dangerous weapon, and that his conduct involved an attempt to kill.

The information charging Goodlett with conspiracy contains one count. It charges Goodlett with conspiring with Jaynes to falsify the warrant affidavit for Taylor’s home, and file a false report to cover up the false affidavit.

All of the civil rights charges involve alleged violations of Title 18, United States Code, Section 242, which makes it a crime for an official acting under color of law — meaning an official who is using or abusing authority given to that person by the government — to willfully violate a person’s constitutional rights. A violation of this statute carries a statutory maximum sentence of life imprisonment where the violation results in death or involves an attempt to kill.  The obstruction counts charged in the indictments carry a statutory maximum sentence of 20 years; and the conspiracy counts carry a statutory maximum sentence of five years, as does the false-statements charge. 

The charges announced today are separate from the Justice Department’s Civil Rights Division’s pattern or practice investigation into Louisville Metro Government and the Louisville Metro Police Department, which Attorney General Garland announced on April 26, 2021. The charges announced today are criminal against individual officers, while the ongoing pattern or practice investigation is a civil investigation that is examining allegations of systemic violations of the Constitution and federal law by LMPD and Louisville Metro. The civil pattern or practice investigation is being handled independently from the criminal case by a different team of career staff.

Ring Doorbell Saves the Day Again: Eviction at the Wrong House

It’s a relaxing summer afternoon. You’re visiting family about 15 minutes away from your home. You locked your doors before you left, like you always do. Your three dogs are safely secured inside your house. All of a sudden you get a notification from your Ring doorbell security camera, at your front door. You see two police officers and some other stranger standing on your doorstep. They just busted the lock off your front door. They’re in the process of entering your home. You have three dogs in the house and you immediately have awful thoughts racing through your head about police officers and dogs. Not knowing what else to do, and having no idea what’s happening, you confront them using the doorbell’s audio speaker. They tell you that they’re there to evict you. You have no idea what they’re talking about.

This was the experience of Jennifer Michele of Land O’Lakes, Florida, in Pasco County. It was a complete surprise to her, given the fact that she had no knowledge of any eviction proceedings against her. She had been living there for 13 years. She posted this footage to Tik Tok, and it went viral. Here it is…

The Maxim that “a man’s house is his castle” is older than our Republic, and deeply rooted in Anglo-American jurisprudence. As scholars have observed, it protects all levels of society, down to the “poorest man living in his cottage.” It formed much of the basis of the Fourth Amendment itself. While 4th Amendment protections have eroded over time almost everywhere else – cars, schools, sidewalks, airports, and so on, it has retained its original strength in the home. The home still receives the greatest protection under the Constitution. It’s our castle. This is expanding in many states, with “castle doctrine” and “stand your ground” laws, and other self defense protections for law abiding citizens. 

Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. The only exceptions are consent and exigent circumstances, which are not at issue here. 

Thus where law enforcement busts your lock off your front door, without a warrant, or in this case a valid eviction order, they violated your Fourth Amendment rights, by default application of the law. But are there any consequences? This is where qualified immunity comes in. 

There are two scenarios: 

1) Where the warrant or eviction order lists the homeowner’s correct address, but which is actually the wrong address. So on its face, there is a warrant for that address, but it was supposed to be a different address; or 2) where the warrant or eviction order lists an entirely different address and they just showed up and executed it at the wrong house. This could be equally applicable to arrest warrants where the wrong John Smith is arrested. Is the mistake in the warrant, or in the execution of the warrant? If the mistake is in the warrant, then how did it get there, and who was responsible? These questions are all highly important to the qualified immunity issue. The unfortunate reality is that qualified immunity is typically granted in these sorts of mistaken identity or address cases. Not always, but very frequently.

One must also remember that this is Pasco County, the same county as the video I recently posted showing the SWAT style entry into a woman’s home over a building permit inspection. That brings up what is most likely a better legal argument here, which is the existence of a policy of constitutional misconduct. This is likely not the first issue. Why is Pasco County law enforcement showing up in tactical gear, with very little information or communication, for an eviction? There may be a Monell Claim here, which would be important because a county or municipality cannot assert qualified immunity as a defense to Monell liability for a policy of constitutional violations.

The consequence of out of control government here was relatively harmless in the end. But often it’s not. Similar mistakes are often made, with tragic results. When law enforcement forcibly enters someone’s home, they do so with firearms, which often are used against occupants – either human or canine. Because, they have to get home safe at night. Nobody else does, necessarily, but they must, at all costs. Protect and serve. When you have the peace-of-mind of qualified immunity, you can just act first and sort out the damage later. Or, as we used to say in football, “let the paramedics sort them out.” 

SWAT Style Entry for Scary Crime of No Building Permit

Someone sent me another interesting video from Tik Tok, this time showing cops making an entry into a home pursuant to a search warrant, guns drawn, due to the alleged high crime of failure to obtain a building permit. Here’s the footage:

You can hear them yell search warrant and then abruptly make entry, which is very close to a no knock entry. There is a constitutional requirement that police officer knock and announce their presence prior to making entry, even with a valid search warrant. There are exceptions for where a no knock warrant is obtained, or where exigent circumstances are presented at the scene, assuming the dangerousness presented wasn’t known prior to the warrant being obtained.

Assuming this is true that the search warrant was obtained due to a failure to obtain a building permit, I have some issues with this. Just because a search warrant is obtained, that doesn’t entitle law enforcement to treat the homeowner like she’s a drug dealer or known violent felon. Police still must act reasonable in executing a search warrant. This requires adjustment for the particular facts of the situation.

Merely executing a search warrant doesn’t justify pointing a gun at someone, assuming someone had been in the home. But alas, this is the world we live in, because we have allowed the government to do what it does best. For this reason, I’m glad that I live in a jurisdiction where there are actually no building permits. Do the buildings fall down around us? No, no they don’t. Just like the fact that we could fire every employee of every state barber and cosmetology board in the nation, and we’d all survive; we’d all be fine.

Government needs to be drastically downsized. How many cops were involved in this? Did they just need some extra hand-on-gun time this month? It’s too bad these tough guys weren’t in Uvalde. All-in-all, I’m sure most judges would allow what’s occurred here. But I wouldn’t. This is unreasonable. Fire everyone involved and don’t replace them. That’s what I’d do.

UPDATE 8/2/22:

The homeowner reached out and spoke with my today, also providing copies of the underlying documents. It only gets worse with more information. Check it out:

The “Inspection Warrant:

The underlying “affidavit”:

Update on My Creepy Cops Search Case of Putnam County WV

I get asked all the time for an update on the Creepy Cops Search case out of Putnam County, West Virginia, where plain-clothes police officers from the sheriff’s department’s “Special Enforcement Unit” were caught on hidden camera literally breaking into my client’s home, sneaking in through the window, searching the inside of the house for non-existent drugs. To see footage of police officers secretly inside someone’s home, where there’s no criminal investigation, or even charges, and where there’s no legal justification, is scary.

This was actually my first Youtube video, uploaded January 15, 2020. The footage shows the drug task force officers searching Dustin Elswick’s house, including examining the ashes of his deceased friend, brilliantly believing them to be drugs. They also ran those ashes through field drug test kits, disabled an exterior surveillance camera, pulled Dustin’s guns out of storage for photographs, and generally ransacked and searched the place.

Until I uploaded the video two and a half years ago, they had no idea they had been caught on video. I first provided the video to federal prosecutors, who in turn provided the video to the FBI for investigation. I didn’t know this at the time, but the FBI agent tasked with the investigation didn’t investigate, but rather just tipped off the officers that I had a video showing them in Dustin’s house. I only found this out much later, after a lawsuit was filed and discovery was exchanged.

A federal civil rights lawsuit was filed on August 20, 2021 against the individual officers, as well as against the county for creating and allowing this drug task force to operate in the first place. The federal court denied Putnam County’s motion to dismiss the pattern and practice (Monell) claim, issuing a memorandum opinion explaining the basis for liability.

Right now the case is set for jury trial in federal court in Huntington, West Virginia on February 22, 2023. There were also two companion case lawsuits filed, on behalf of other plaintiffs, the Johnson family, as well as Mason Dillon, which are also currently pending and set for trial. However, this is the only one that was caught on video. The Dillon case is set for trial on January 18, 2023. The Johnson case is set for trial on January 31, 2023. As of right now they have not been consolidated with the Elswick case.

Discovery has been exchanged, so we now know a lot more. However, depositions have not yet occurred, having been delayed several times due to the defendants’ concerns over a renewed FBI investigation, following the disclosure that the initial FBI investigation was more of a locker room pat on the butt, than an investigation. I suspect that the current FBI investigation could be actually an investigation of the initial FBI investigation, but I have no idea as of right now. What I do know is that we are finally set for depositions of the officers to take place at the end of this month. It will be interesting to find out whether the officers will plead the Fifth Amendment. I honestly hope that they don’t. But either way, I already have their statements from the still-confidential internal investigation. So if they don’t want to answer questions, there are mechanisms in place for me to utilize their prior statements.

What I can tell you is that there is no good explanation here. There are some excuses and some finger-pointing. But there is no great defense here. I believe that it will be determined that some of the officers are more culpable than others. Which is why I hope that at least those officers will be willing to tell the story. It’s an interesting tale that resulted in the end of the Special Enforcement Unit, but not the end of the officers’ employment. Though there’s more to the story that isn’t out yet.

Remember, your home is your castle, and is the most protected place there is under the Fourth Amendment. Any search or seizure by the government that takes place in the home is automatically unconstitutional, by default, unless the government can prove otherwise, in the form of a valid warrant, or valid exception to the warrant requirement. There are only two exceptions recognized by the U.S. Supreme Court: consent and exigent circumstances. Consent must be voluntary. Exigent circumstances require something akin to an emergency situation.

Also, when it comes to consent, as I’ve explained previously, a landlord cannot authorize the government to search the residence of a tenant, as per the Supreme Court in the 1961 case of Chapman v. United States. This also extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room.

These cases tend to speed up towards the very end, which is where we are now. So there will likely be a big update, or updates, very soon. We have a mediation scheduled in August, which is an opportunity for both sides to discuss potential settlement resolutions. In this case, which is a civil rights lawsuit, the potential remedy available to a plaintiff is money. So that’s where money will be discussed, for the most part. If that falls through, we’ll sort it all out at trial.

Police Caught on Doorbell Video Removing FJB Flag

A video went viral on Tik Tok showing Ring doorbell camera footage of a police officer removing a family’s “F” Joe Biden flag from its display on the front of the home. The homeowner explained in a subsequent video that he had been previously threatened with arrest for good ‘ole disorderly conduct if he continued to display the flag. Is this a violation of the First Amendment? What about the Fourth Amendment?

Back in February, I discussed the “F” the police T-shirt case out of Ohio, where the 6th Circuit issued an opinion denying qualified immunity to police officers sued for arresting a man for “disorderly conduct” for wearing a shirt containing protected First Amendment speech. In that case, the Court made very clear that police academies have to stop teaching young officers that any use of profanity is disorderly conduct. To the contrary, the law is clear that the First Amendment protects the use of profanity, so long as it’s unaccompanied by other conduct that could be construed as disorderly. Thus, the use of the “F word” in and of itself cannot be criminal conduct.

“It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’”

Cohen v. california scotus 1971

Not only can the “F word” be used, but it can be used to verbally criticize the police. Or, in this case, Joe Biden. As the U.S. Supreme Court has held, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state….”

Moreover, expressing criticism of a sitting U.S. President, via use of a flag, is pure First Amendment protected activity. The homeowner mentions in his follow up video that he had researched the town ordinances, and none were applicable, but rather that the mayor lived down the street and held an opposing political ideology. I’ll note that, even if there were a town ordinance, it would be unconstitutional, as a violation of the First Amendment. Now an HOA would be another matter, potentially. Why? Because that’s a private organization, and therefore cannot violate the First Amendment.

Also, what about the Fourth Amendment? As I’ve explained numerous times, the front porch of your home, which would include a flag sticking out of it, is considered part of your home – your castle – for Fourth Amendment purposes. If a police officer walks up and seizes a part of your home – something off of it – is that a seizure? You better believe it. Is it illegal? Illegal in this context means “unreasonable.” Unreasonable, when it comes to your home, is defined with a question: was there a warrant? No, then it’s illegal as a violation of the Fourth Amendment.

ATF Agents Show Up at the Door to Check Firearms Purchases

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

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

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

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

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

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

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

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

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

The homeowner felt coerced. So here’s the legal issue: Would a reasonable, regular person believe that he was not free to terminate the encounter? A person is seized within the meaning of the Fourth Amendment “only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” (Terry v. Ohio 1968). 

Such a seizure can be said to occur when, after considering the totality of the circumstances, the Court concludes that “a reasonable person would have believed that he was not free to leave.” Or, in the context of a location the citizen doesn’t want to leave, such as their front porch, the appropriate question is whether that person would feel free to “terminate the encounter.” (Florida v. Bostick 1991).

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

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

WV Trooper Walks in House and Demands to be Sued

This morning I received multiple links and copies of this video that’s been circulating, showing a West Virginia State Trooper, in what appears to be inside a family’s home without a warrant. Apparently it was originally posted to Tik Tok, and then removed for some reason. It appears to involve a police response to a church traffic cone, which resulted in the homeowner apparently banging on the church’s door at some point. This trooper shows up, walks in the guy’s home, admittedly without a warrant, and without permission. Then the trooper makes a move on the phone, followed by some sort of altercation at the end. Here’s the video, then I’ll address some legal issues which I see:

Okay, to be clear, I know nothing about this situation, other than what is apparent from the video. So what do we know? The purpose for the officer’s presence appears to be for something relatively minor. A dispute of some sort between this guy and a church. We also know that there is no warrant. The officer claims that he was justified to enter and remain inside the man’s home due to his subjective concern that the guy might shoot him. We’re not told what this concern is based on, other than any individual could theoretically shoot anyone at any given moment. We also know that the guy is not in the home with the homeowner’s permission. That much is is said twice during the video, by my count. Also, we see that there appears to have been some sort of use of force by the trooper towards the end of the video. He definitely appears to strike the camera in some way. Whether or not the guy holding the camera was struck or not, we can’t see. But it does sound that way.

So here are some of the questions presented. Is this officer correct that he can just walk in somebody’s home under these circumstances, and remain there? Let’s go over the basics of how the Fourth Amendment applies to the home. 

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States (SCOTUS 1967). “At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States (SCOTUS 2001).

Inside the home: searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal as the default rule, according to the Fourth Amendment. Outside the home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.” Thus no warrant is required outside the home, unless a reasonable expectation of privacy exists. Searches or seizures inside a home require a warrant, or a valid exception.

The main exception is consent. A search conducted pursuant to a valid consent is constitutionally permissible. Voluntariness is the standard. Was the defendant’s will overborne? Voluntariness of the consent depends on the totality of the circumstances. Schneckloth v. Bustamonte (SCOTUS 1973). Officers may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs. Kentucky v. King (SCOTUS 2011).

The only other valid exception is exigent circumstances. Law enforcement may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with injury. This is known as “exigent circumstances,” and generally refers to some emergency situation. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. This is an objective rule. The officers’ subjective motivation is irrelevant. An action is “reasonable” under the Fourth Amendment regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. Brigham City v. Stuart (SCOTUS 2006).

Exigent circumstances can also apply to allow an entry under some limited circumstances to prevent the imminent destruction of evidence. Minnesota v. Olson (1990), or if the officer is in hot pursuit of a fleeing suspect. United States v. Santana (SCOTUS 1976). However, also keep in mind that police cannot create their own exigent circumstances by engaging or threatening to engage in conduct that violates the Fourth Amendment. Their conduct must be reasonable. Kentucky v. King (SCOTUS 2011). Lastly, a home’s front porch, including the area immediately surrounding the house, also enjoys protection as part of the home itself. Where information is gathered by physically entering and occupying that area without consent, it’s a search of the home. 

But is the Fourth Amendment triggered by just entering a home, or even standing on the porch? Understand that you have “consensual encounters,” and then you have Fourth Amendment searches or seizures. Consensual encounters do not trigger the Fourth Amendment.

As a general matter, police officers are free to approach and question individuals without necessarily effecting a seizure. Rather, a person is seized within the meaning of the Fourth Amendment “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio (SCOTUS 1968). Such a seizure can be said to occur when, after considering the totality of the circumstances, the Court concludes that “a reasonable person would have believed that he was not free to leave.” Terry v. Ohio; also United States v. Gray (4th Cir. 1989)). Similarly, when police approach a person at a location that they do not necessarily wish to leave, the appropriate question is whether that person would feel free to “terminate the encounter.” See Florida v. Bostick (SCOTUS 1991).

A traffic stop, for instance, is always a seizure under the Fourth Amendment. Entering a home to engage in conduct not explicitly or implicitly permitted by the homeowner, is likewise a seizure under the Fourth Amendment. Florida v. Jardines (SCOTUS 2013).

Here, if there was no warrant for this state trooper to engage in a search or seizure inside the home, his doing so was presumptively unconstitutional, as a violation of the Fourth Amendment. He clearly did not have consent to be inside the home. It was evident, and apparently undisputed in the video, that the officer entered without permission and wasn’t welcome. It was also apparent that the officer didn’t care. Thus without consent, entering and occupying the home against the will of the homeowner, a Fourth Amendment seizure occurs that is preemptively unconstitutional. 

Don’t forget that he also seizes the camera recording him, which is perhaps a seizure of the homeowner himself, along with the footage that was being recorded. That very well may implicate the First Amendment as well, as you have a right to record the police inside your home, whether this officer, who also ironically says he is also recording, likes it or not. 

But what about exigent circumstances? The officer implies that he’s relying on exigent circumstances – that he followed the homeowner into the house, worried that he was going to be shot by him. He provides no details supporting this alleged concern. I’m skeptical that there’s any basis for this. He can’t call it hot pursuit of a fleeing suspect, because the guy doesn’t appear to have been under arrest.

This is where the officer’s body cam footage, if it exists, which it appears to from the visible camera on his abdomen, would come in handy. I’d also like to review the 911 records and audio, in order to fully understand the facts. It seems a stretch to me to justify exigent circumstances, based on what we see in the video. If he was truly in hot pursuit, he would have seized the guy immediately and taken him into custody, rather than walk in the house and do more of a knock and talk conversation. Which by definition isn’t supposed to take place in the guy’s living room. I’m sure there’s quite a bit of case law on point to this situation, but this is all just generally speaking, without having researched this scenario. There doesn’t appear to be an emergency situation. No medical emergency. No indication that someone’s flushing cocaine down the toilet. No baby choking, and so on. 

So to answer your questions, it looks pretty bad to me, and I wouldn’t doubt it if this trooper might get his wish to be sued, assuming the homeowner wanted to do so. I also wouldn’t doubt it if disciplinary action is taken, given the fact that the video is now out there. However, more information is needed to evaluate his likely only avenue of defense – exigent circumstances. Just my two cents. I’ll provide an update if I learn more about it. 

Bluefield PD obtains search warrant for video footage, then searches fridge, etc. – Off-duty Officer Rampage Incident Part 2

I already posted the crazy video footage showing an off duty police officer on a rampage at Greg’s Sports Bar in October of 2021. It’s long, but highly interesting:

Here’s the backstory which led up to that night. About a week before the rampage incident, there was a shooting in the parking lot of the same bar. Someone basically fired a gun in the air. The same police department that the rampaging officer worked for arrived at the bar to investigate. Bodycam footage shows what happened next, resulting in a late-night search where the officers can be seen looking in refrigerators and whatnot, rather than following the language of the warrant. As you’ll hear on the video, the main officer threatened to get Greg in trouble with the ABC, which is exactly what happened after the rampage from the first video……

“The text of the [Fourth] Amendment thus expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (citing Payton v. New York, 445 U.S. 573, 584, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ). The particularity requirement “prevent[s] a ‘general, exploratory rummaging.’ ” United States v. Oloyede, 982 F.2d 133, 138 (4th Cir. 1993) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ).

This [particularity] requirement ensures that the search is confined in scope to particularly described evidence relating to a specific crime for which there is probable cause.” Id.; see also Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (“The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”).7 “[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” Riley v. California, 573 U.S. 373, 381-82, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). United States v. Nasher-Alneam, 399 F.Supp.3d 579 (S.D. W.Va. 2019).

Opposition to general warrants in America predates the American Revolution and is one of the guiding principles of individual freedom under our Constitution. In an effort to combat smuggling to avoid import tariffs, British colonial governments issued general warrants, known as “writs of assistance,” that invested the bearer with power to compel any local official to enter any property and make a general search for contraband. The writs of assistance case in colonial Massachusetts, Paxton’s case (1761), is said to have been “the most important legal event leading up to the American Revolution.” Presser and Zainaldin, Law and Jurisprudence in American History 65 (6th ed. 2006). According to John Adams, “Then and there the child Independence was born.” Id. While the writ in Paxton’s case was granted, the result only fueled growing opposition to the practice of general searches, an opposition confirmed in countless cases subsequently decided in the United States. (FN 7 from United States v. Nasher-Alneam, 399 F.Supp.3d 579 (S.D. W.Va. 2019)).

Federal Judge Finds a Pattern of Illegal Drug Task Force Search Warrants in West Virginia

Reuters reported a few days ago on a recent set of court orders from a federal judge in West Virginia finding a troubling pattern of illegal search warrants obtained by drug task force officers.

In December, Goodwin issued an order suppressing evidence seized from a house in 2021. The judge questioned the accuracy of certain statements made by law enforcement in an affidavit to obtain a search warrant of the defendant’s house. The government has since filed a new indictment.

After the judge issued the suppression order, the U.S. attorney’s office sent two investigators to interview the state magistrate judge who issued the search warrant. Goodwin said it was “improper” for investigators to seek such an interview and for the judge to entertain it.

“It is inherently intimidating to send federal officers to question a state magistrate judge,” Goodwin wrote, “and it is clearly out of bounds for the magistrate judge to provide the interview regarding his judicial decision-making in a matter pending before this court.”

Reuters published yet another article today expanding on the earlier report, noting that more than one federal judge in West Virginia, as well as a unanimous panel of the Fourth Circuit Court of Appeals found that this particular drug task force in West Virginia has been engaged in unconstitutional violations pertaining to search warrants.

Goodwin, in fact, has criticized the practices of the Metropolitan Drug Enforcement Network (MDENT) in particular in at least three other decisions since 2017, a review of court records shows. The MDENT is composed of officers from agencies including the Charleston Police and Kanawha County Sheriff’s Office, the Drug Enforcement Agency and the state police.

The judge tossed out evidence in a drug case last year, holding that the Charleston Police, MDENT, and a Kanawha County magistrate had again failed to respect constitutional limits on searches and seizures. The MDENT’s warrant was based on “unsourced and undescribed” information that someone was selling drugs and the discovery of three marijuana stems in the trash from that person’s home – which the judge said was clearly insufficient.

“I fear this is becoming a pattern,” Goodwin wrote on April 28, 2021, pointing to a similar ruling in another MDENT case from a week earlier.

The MDENT has also been admonished for what courts described as open and purposeful disregard of the legal limits on searches and seizures by at least one other judge of the Southern District of West Virginia, and in a unanimous opinion by the 4th U.S. Circuit Court of Appeals.

This is the same federal court who presided over the Keith Sizemore case I litigated, where the Court denied a police officer qualified immunity in a civil rights lawsuit for providing false information in a search warrant application.

What you’re about to see, demonstrated in black and white courtesy of the federal judiciary, is proof of a pattern and practice of police misconduct. This is a documented pattern of Fourth Amendment violations, where drug task force officers knowingly violate the Constitution, with the complicity, or ignorance, of multiple state-level magistrate judges, who are not required to have law degrees to hold office, and who generally don’t. Moreover, many times the state-level magistrates, elected in countywide elections, are themselves retired law enforcement officers.

West Virginia is in serious need of search warrant reform. By the way, federal investigators in West Virginia, so I’m told, are required to go to Circuit Court judges, rather than magistrates, in federal criminal investigations in West Virginia.

Here’s the Court’s ruling on the motion for reconsideration in the case of U.S. v. Lark, as cited in the Reuters article:

Here’s the original suppression order which the government was seeking reconsideration in the Lark case. Note that the federal prosecutors here are not interested in actually having the Court reconsider the admissibility of the evidence, but rather solely with the career prospects of the police officer found by the federal judge to have provided false information in a search warrant application:

Here are the other suppression orders to which the Court referred in the Lark orders, of which I’m aware.

Here’s the suppression order from the Keith Sizemore case, to which I referred earlier. This was the criminal case:

And here’s the opinion from the subsequent civil lawsuit. Note that this was a different drug task force than is featured in the other opinions, but same federal Court, and same underlying issues:

It would be interesting to find out if a single one of these police officers who were determined by the federal judiciary to have provided false information in a search warrant application were ever thereafter placed on a “Brady List” for disclosure to criminal defendants in cases involving these officers…..

Update, 3/17/22: The West Virginia Record reported that the U.S. Attorney for the Southern District of West Virginia has an open investigation into the matter.

Deanna Eder, public affairs officer for Thompson, declined to comment in the pending case. But she did issue a statement to The West Virginia Record about Goodwin’s concerns.

“Upon taking office on October 13, 2021, U.S. Will Thompson began a thorough review of all of his office’s policies and procedures to determine what, if any, changes were needed,” Eder told The Record. “The United States Attorney served as a state circuit court judge for almost 15 years prior to his role as U.S. Attorney and brings that experience analyzing constitutional and suppression issues to the U.S. Attorney’s Office.

“As a result of his review of policies and procedures, and prior to the order in the Lark case, U.S. Attorney Thompson implemented a new process for reviewing search warrant applications. The U.S. Attorney’s Office has reviewed the court’s order in the Lark matter and takes the Court’s concerns seriously.”

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

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

Do police need a warrant to search an RV?

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

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

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

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

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

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

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

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