Police officers arrived at a gym on a noise complaint. The gym owner expressed his displeasure at the officers’ presence. As they started to detain him, he went back into his gym and told the officers they could not enter. But they did enter and tased him and took him to the ground, and arrested him. Here’s the issue. The Fourth Amendment does not allow police to go inside your home and arrest you without a warrant. But what about your business? Did they need a warrant under the Fourth Amendment to arrest this gym owner?
Here’s yet another video of police officers detaining or arresting a man’s wife, in order to coerce him into complying with their demands – whether legal or not. Last time, this happened in Georgia. But this time, we’re in Shawnee, Oklahoma. The Oklahoman originally reported on this incident and provided the video footage. Once again, most people misunderstand the application of the Fourth Amendment in and around the “curtilage” of a home.
On March 18 at 1:15 a.m., the Calloway County Sheriff’s Department, in Kentucky, arrived at a private residence with an arrest warrant for a guy who did not reside at the residence, but whose vehicle was parked in the yard, undergoing maintenance by the homeowner. When the footage turns on, you’ll see police walking towards the husband slash homeowner. Then you’ll see the man’s wife come outside and ask for a warrant and also for the officers to leave the property.
This raises constitutional issues about whether law enforcement can enter and remain in someone’s front yard under these circumstances, where the home’s residents are present and asking them to leave. And where there is no arrest warrant for the home’s residents – nor a search warrant for that home? This also raises issues about whether police can detain those residents, including their guests, without their consent and in the absence of a search warrant? This is a common issue that most people misunderstand – especially police. Let’s look at this footage, which you haven’t seen anywhere else, and clear up the legal rights at issue.
NOTE: This footage was submitted anonymously and I really have no idea what the outcome was in the criminal case, or otherwise. One would hope that no convictions resulted from this, for reasons I explain in the video, as well as below….
Some of the applicable law discussed in the video:
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.
In the 2013 Supreme Court opinion of Florida v. Jardines, the Court held that a search undoubtedly occurs when the government, without a warrant, obtains information by physically intruding within the curtilage of a house, which in that actual case involved a home’s front porch. The Court cautioned that a search occurs unless a homeowner has explicitly or implicitly sanctioned the government’s physical intrusion into the constitutionally protected area, i.e., the yard and/or porch of the home.
Under the “knock and talk” exception to the warrant requirement, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” This means there is an “implicit license . . . to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” An officer may also bypass the front door (or another entry point usually used by visitors) when circumstances reasonably indicate that the officer might find the homeowner elsewhere on the property. “Critically, however, the right to knock and talk does not entail a right to conduct a general investigation of the home’s curtilage.”
The 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.
Imagine it’s winter time. You’re at home in Erie, Pennsylvania. There’s snow everywhere. Your Ring Doorbell alerts you to movement at your front door. It’s a SWAT team. They grab your doorbell camera and chuck it into the snow and then start to bust down your door. You’ve done nothing wrong. You’ve broken no law. You have no idea why they’re there. And neither do they apparently. What do you do? What is the law?
It was March 12, 2023.Officers approach the house and notice the Ring doorbell and then they remove or destroy it. The homeowner got to the front door and confronted the officers. They told him to come outside, which he did.
Sadly, Lance, who submitted the footage, has early onset dementia. He explained this to the officers. He decided to take out his cell phone and begin filming their interaction – for his safety and theirs, of course. That’s when Lance’s cell phone footage begins. The cops absolutely did not want to be filmed, even though they were on Lance’s property, without a search warrant and without probable cause, or even reasonable suspicion, to believe that Lance had committed any crime at all.
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. Here, the officers had no search warrant for this house. It also appears that they had no legitimate reason to believe that the fugitive they were looking for was inside the house.
According to their own words, they received an anonymous tip that the fugitive could be inside the home. In reality, the fugitive had no connection whatsoever to the home. Anonymous tips cannot form the basis of probable cause. Which is why they didn’t have a warrant. They should have investigated the anonymous tip, in which case the officers would have discovered that it was not credible. Instead, they just got the boys together, rolled up on the house, destroyed private property and then commenced an illegal search.
While the homeowner gave the officers consent to go inside the house, he subsequently revoked that consent after finding out that the officers were acting off a bogus anonymous tip. Moreover, they had already invaded the curtilage of the home and destroyed private property prior to obtaining that consent. They had no legal justification to do so and therein violated the Fourth Amendment.
Lance is looking to file a lawsuit, if any Pennsylvania lawyers are interested in helping him.
UPDATE: Since I made the video on this, Lance found out that the officers had first applied for a search warrant, based on the anonymous tip. That warrant was apparently denied by a judge as lacking probable cause. Then the officers showed up anyways. In the end, they were apparently at the wrong house. Not surprisingly…. Lance’s home had no connection to the fugitive they were looking for.
Imagine your 77 year old grandmother sitting at home one day and an entire SWAT team shows up and raids her house, just because someone’s stolen iPhone supposedly pings at the location. No phone call, no knock and talk, no investigation at all. Just SWAT team. Well that happened.
It was January 4, 2022. Ruby Johnson, 77 years old, a law-abiding citizen and grandmother, was alone at her home. She lives in a neighborhood called Montbello – considered to be one of Denver’s minority neighborhoods, located in northeast Denver, Colorado. Denver Police SWAT executed a search warrant at her home, looking for a stolen vehicle and guns, based entirely on Apple tracking software, “Find My iPhone.” They found nothing and achieved nothing but the contempt they earned from the victim, her family and others in the neighborhood.
The day before the raid, a 2007 white Chevy truck with Texas license plates was stolen from a downtown Denver hotel parking garage. The driver rammed it through the gate and fled. Inside was $4,000 cash, two drones and an iPhone 11. Hours later, the hotel notified the guest who owned the truck and he began tracking the iPhone via the Find My iPhone app. The app supposedly led to Ruby Johnson’s home, before it disappeared.
Based solely on that, the Denver Police Department obtained a search warrant. They chose not to conduct any surveillance or other investigation at the location. They didn’t even bother to drive by the house to see if the stolen truck was there. Or maybe even next door. Nor did they bother to even go perform one of their beloved “knock and talks” at the actual location where the phone pinged. Instead, they activated the SWAT team. Just to be safe, of course. It is a minority neighborhood, after all….
About a dozen Denver SWAT officers poured into the home. They sifted through boxes with the help of a K-9 unit. They used a battering ram to try to open the rear garage door. They broke down the attic door. They also cut the lock to her shed.
Officer Joe Montoya, the head stormtrooper, in an interview with channel 9 news, said officers researched the property and knew 77 year old Ruby Johnson lived at the home alone, which is why they used the “lowest threshold of aggression.” If this SWAT team, along with an armored vehicle, is their lowest threshold of aggression, I’d say their higher thresholds must involve those new-fangled exploding robots. Officer Montoya, like a good government trooper, was just following orders. They’re just doing what stormtroopers do. It’s up to prosecutors and judges to stop them. They have no minds of their own. Here’s what he said:
“I’m not going to second guess the investigation,” he said. “The proper steps were taken. The place where that would have been questioned would have been the DA’s Office and the judge’s level. And they felt comfortable signing that warrant.”
So what about them? Denver Deputy District Attorney Ashley Beck and Judge Beth Faragher both approved the warrant. Kristin Wood, a spokesperson for Denver County Court, said: “Judge Faragher signed the search warrant because she found probable cause existed,” Wood wrote in an email. “If a judge did not find probable cause, he/she would not sign the search warrant.” Prosecutor Beck also would not directly comment. Instead, a spokesperson wrote in an email that the warrant passed legal muster: “I can tell you that our office is obligated to review every search warrant the Denver Police Department writes to ensure it is legally sufficient based on the facts to which the detective swears,” Carolyn Tyler wrote in an email.
So, at least through their spokespersons, the officers blame the judge and prosecutor; the judge blames the prosecutor and officers, and the prosecutor blames the officers and the judge. This is perfectly representative of the efficiency and competency of your government. This is why the DMV runs so smoothly and is your favorite place to visit.
It’s true though that there are two important things to look at when reviewing warrants:
The information provided by law enforcement, under oath, to the judge reviewing the allegations for probable cause; and
Whether those allegations are sufficient to comprise probable cause for the issuance of the warrant.
Looking at the actual search warrant application, completed by Detective Gary Staab, it appears that he relied solely on representations made to him by the owner of the stolen items and did absolutely nothing himself. He notes in the application to the judge that the owner told him that the iPhone pinged to the house and that he drove by the location in a rented vehicle, but that he did not see his stolen truck there.
However, the application notes, theoretically, the stolen phone could be inside the closed garage at the residence. Also theoretically, which the detective notes in his copy and paste warrant, his vast experience tells him that stolen items can be removed from a stolen vehicle and theoretically placed in a garage.
That’s pretty much it. He includes a copy of the owner’s Find My iPhone screenshot and his photos of the residence. The detective did nothing himself. Instead of actually going and knocking on the door, talking to people – you know, detective work – let’s just activate the SWAT team and bust down the door. It’s a black neighborhood, after all. Guns were stolen. Therefore we have black people with guns, potentially. Better bring the armored vehicle as well. Yes she’s a 77 year old grandmother with no criminal history. But you never know. Officers have to make it home that night.
As officers searched her home, Ruby Johnson waited in the back seat of a police car. She told channel 9 news afterwards that the experience was traumatizing and led her to feel unsafe in the home she has lived in for about 40 years. “When I start thinking about it, tears start coming down,” she said. Ruby’s longtime friends have noticed a sadness they hadn’t seen in her before. They don’t see her smile anymore.
Officer Joe Montoya, division chief of investigations with DPD, said the department did not intend to harm Johnson and regrets that the warrant caused suffering.
“We can always apologize and I’d be willing to apologize that there was a warrant issued and evidence was not found there,” Montoya said. “That’s a given, but I don’t think there was anything done to intentionally traumatize her.”
They just don’t get it, do they? They chose to obtain a search warrant and send a SWAT team there. They knew that the only person who lived there was a 77 year old woman who was a law abiding citizen. Yet they sent a SWAT team there first, instead of treating the woman as Officer Montoya no doubt would want his own grandmother treated. They chose to traumatize her. Because they only think of themselves. Officer safety is the only thing that matters to them.
By the way, the stolen truck was later recovered two days after the warrant was executed about six miles away in Aurora. The stolen guns were not in the truck, of course. No arrests have been made.
The point here is, this is a prime example of the fact that police and government misconduct can happen to you, even if you’ve done nothing wrong. This was all done lawfully. Valid search warrant. Valid search. Innocent victim. Wrong house. No stolen items found. This will continue to happen because police officers are not held accountable for their actions. Prosecutors are not held accountable for their actions. And judges certainly aren’t held accountable for their actions. I can guarantee you these things would stop happening if qualified immunity was abolished. If prosecutorial absolute immunity was abolished. If judicial immunity was abolished. But as it is now, they just don’t care, because there are no consequences. The only thing we can do is expose what they’ve done.
Ben was in Las Vegas for DEFCON, the world’s largest annual hacker convention. Ben’s day job is in the field of cybersecurity. He was staying at the Paris Las Vegas Hotel. Around 11pm on Sunday, August 14, he’s startled out of a sleep, in his dark hotel room. There’s pounding on the door. He walks to the peep hole in his underwear, peers through and sees what appears to be armed law enforcement in tactical gear.
He’s ordered out of the room, in his underwear. They then search his room for firearms. They’re not law enforcement, but rather the hotel’s “Special Response Team.” They refuse to explain the basis for their belief that Ben has firearms in his room. In addition to working in cybersecurity, Ben is also involved in the firearms community, and operates the Open Source Ordinance Youtube channel, where he posted the originals of these videos. Here’s the main video:
Here’s the second one:
Many people know the basic rule that constitutional rights can only be violated by government officials, and that therefore they don’t protect us from private actors. At first blush, this seems to be the case here. Despite their appearance, these were private security guards. There may be Nevada state law protections at play, but it’s difficult to implicate federal civil rights protections. That would require a bit of legal gymnastics. But the more I research this, after having watched this footage, I think there are some possibilities.
There are actually quite a few cases out there discussing private hotel security and constitutional rights. Many of these arise out of criminal cases. There are actually cases where federal courts have attributed state action, and Fourth Amendment violations, to private hotel security. However, these cases involve the question of suppressing evidence in criminal cases. Basically, if private security searches a hotel room, then police arrive, there may be a sufficient connection to establish state action by the private security. There was actually a Las Vegas casino found liable for Section 1983 violations in a Ninth Circuit opinion, where they had a system of working with the police in issuing citations, performing certain law enforcement functions. That was Tsao v. Desert Palace, Inc., from 2012.
In the last few years, with concern over active shooters, certain hotels in Las Vegas have apparently formed their own SWAT teams, so as to provide what is essentially a faster law enforcement response. There may be facts there, depending on the level of interaction between the hotels and local law enforcement, to show a similar system of privatization of law enforcement. Where that’s the case, government shouldn’t be allowed to avoid Section 1983 liability by merely delegating their law enforcement functions to private corporations. So there may be a theory of liability there.
Another possibility, the thought of which is fueled by the speculation here regarding the source of the hotel’s belief that Ben had firearms in his room, is that perhaps the federal government is indeed compiling, maintaining, and sharing information about the firearms community with private corporations responsible for site security. We don’t know if that was the case here, but can we really take anything off the table at this point? If that were true, that could be another potential basis for federal civil rights liability.
I suspect we will be seeing more of this type of activity in the future, just as we’ve been seeing troubling behavior out of the ATF, as well as the FBI. Instead of a social credit score, perhaps they have a firearms community score. Do you have access to machine guns? Well, you may have a great credit rating.
You’re home asleep in your bed. It’s two in the morning. Your significant other is asleep next to you. Your child is asleep in the next room. Suddenly, you hear shouting outside. Three armed police officers are outside your house, shining lights, shouting at you to exit your home. You’ve done nothing wrong. You’re afraid. You comply with their orders, because they’re the police. There’s three of them, armed with the authority of the government. So you go outside. They order you onto the ground. They place you in handcuffs. Once in custody, you recognize one of the officers. As it turns out, he’s there to intimidate you. And also ask about your puppies.
This happened on August 2, 2020 at the residence of Shane Glover, who was there with his girlfriend and their sleeping child, as reported by the Post and Courier newspaper. These officers showed up to Shane Glover’s home after Glover had attempted to talk to Officer Jermaine Smith earlier that day, about inappropriate comments Smith had made about Glover’s girlfriend. Prior to approaching Officer Smith, Glover called 911, telling dispatchers that “he knew Smith was a police officer and that he did not want anything bad to happen to him when he approached Smith to talk. But Smith drove off before Glover was able to make contact with him. Just hours later, Officer Smith and two of his buddies would show up to Glover’s house and force him out of his home at gunpoint.
Officer Smith can be heard on the video asking Glover, who is now standing outside in his underwear, if he was “making threats.” This is referencing Glover’s attempt to confront him earlier in the day. Glover denies making any threats. Smith says, “it’s all recorded” and “they say you were looking for me.” One of the other officers says, “You’ve got to expect consequences.” The officers eventually uncuffed Glover and his girlfriend and left the property. They were not charged with any crimes. The officers weren’t even in their jurisdictions. The Orangeburg County Sherriff’s Office has jurisdiction over the area. But they were never contacted for assistance. They actually asked the South Carolina Law Enforcement Division (“SLED”) to investigate this incident. An investigation was opened, and is apparently still pending.
As I’ve explained many, many times, at this point, a man’s home is his castle. It doesn’t have to be a brick home. It can be a single-wide trailer, an apartment, or even a hotel room. The police cannot arrest you in your home without an arrest warrant. They cannot arrest you in someone else’s home without a search warrant. Any entry, or violation into the sanctity of a home is presumptively unconstitutional, as explained in the 1967 Supreme Court opinion in Katz v. United States. There are only two valid exceptions: consent and exigent circumstances. Consent is explained in the 1973 Supreme Court opinion in Schneckloth v. Bustamonte. Exigent circumstances is detailed in the 2006 Supreme Court opinion in Brigham City v. Stuart.
Even assuming a threat was made earlier in the day, as Mr. Bamberg correctly explained, the proper response to that would have been to seek a warrant from a judge. Police officers do not get to be judge, jury, and executioner. There was no warrant here, thus, it’s irrelevant whether a threat had been made. Even if it had, that pales in comparison to what happened here, which was essentially a kidnapping at gunpoint, among other things.
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.
