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How much should you charge for a photograph?Man Claims Police Entered Home Without Warrant, Threatening To Arrest Him For Recordinging Them
After receiving a neighbor’s complaint about a disturbance, Haverhill police officers knocked on Hector Nunez’s door Saturday morning to investigate.
Nunez, who had just gotten home with his wife, asked who was knocking.
“They said, ‘police,’ and I thought it was my friend joking around,” he said in a phone interview with Photography is Not a Crime Wednesday night – 12 hours after I had posted the video of his encounter with police that left some questions unanswered.
Nunez, 23, opened the door and discovered it was, in fact, three police officers who began asking questions.
The cops were called by his downstairs neighbor, who is the building’s maintenance man and has had a long-running dispute with Nunez and his wife over repairs that were never done, he said.
The Nunez’s have already told them they’re moving out this month, so the landlord and maintenance man are not too happy about it.
So they call the cops at the slightest provocation. And in this instance, perhaps Nunez and his wife were a bit noisy as they walked up the stairs to their third-floor unit early Saturday morning.
“I hadn’t even taken off my jacket yet. We had just stepped inside.
“When I opened the door, they wanted to speak to my wife, but she was on the back porch smoking a cigarette,” he said. "They wanted to check on her welfare."
“I told them to go around back and talk to her.”
In other words, he was not allowing them into his home. And they did not have a warrant.
“The cop then says I’m a wise-ass and pushes me down and walks inside,” Nunez said. “I ran after him and told him, ‘you assaulted me.”
“He turns around and takes a swing at me. Then my wife comes back inside and said ‘what are you doing in my home?”
That was when Nunez ran into his bedroom and turned the camera on, which shows the officers standing outside his bedroom door, proving that they did enter his home without a warrant.
However, in the report police filled out from that call, which Nunez sent me, they claimed that Nunez and his wife refused to let them inside.
They apparently left out the part where they threatened to arrest Nunez for recording them.
Nunez shut off the camera because he knew they would arrest him.
“I can’t afford to get arrested,” he said. “I have a one-year-old daughter I need to care for.
“The other cop was already taking out his handcuffs. I didn’t want to go to jail.”
Once the video was turned off, the cops threatened to arrest him if he uploaded the video to Youtube, which he obviously did.
“I told them that it’s because cops like you that citizens don’t have trust in the system,” Nunez said.
“They said, ‘If you don’t like it, go back to your own country.’
“That was when I broke down in tears,” said Nunez, who was born in the Dominican Republic, but has lived in the United States since he was one-year-old.
“I told them to get the fuck out of my house.”
“They said, ‘we’re about to arrest you.’
“I said on what charges and he looked me dead in the eye and said, ‘we will write down whatever is necessary to get you in handcuffs.’”
“That shocked me, you don’t get that in your own home,” he said.
The police eventually left without making any arrests, leaving Nunez with injured wrists and broken pride.
Later that morning, he went to the hospital and was diagnosed with contusions, according to the documents he sent me, which is the medical term for bruises.
He would like to file a complaint against the Haverhill police officers, whose names are J. Barbieri, Dana Burrill, Jr. and M. Shinners.
Instead, he contacted the ACLU, which is looking into the matter.
Comments
If there was a report of a disturbance there, depending on what they were told, the police have the right to enter to check on the welfare of the residents. No warrant would be required in that case.
They have the right to enter without a warrant if there are sufficiently compelling exigent circumstances.
They do not have the right to lie on an official report of the incident, as is alleged here.
They also have no legitimate reason to be upset that the homeowner is recording them (engaged in their official duties) in his home, but at least one of them clearly is objecting in the attached video.
As soon as they say "welfare check" it's "GAME OVER"!
Just like back in the day when they said they were doing a "safety check" on you car, so o0pen the trunk and show me you spare tire.
Just bought a little "spy pocket cam" that unfortunately I feel I should these days.
Not just cops, but all public employees.
Now thats what I call "National Security".
Sad that it has come to where we feel so abused that we have to start recording them recording us.
It appears all this hinges on exactly what was reported to 911. Can't call a welfare check just because they want to. Also, even if you refuse and get arrested a search incident to arrest does not allow a general search of the house. Just the immediate area.
Not necessary to enter the residence, "I told them to go around back and talk to her.” Problem solved.
This was very plainly escalated by the cops who didn't like that he wasn't willing to comply with questionably legal orders.
Lets be real Johnny, cops don't like non compliant citizens, even when it is ENTIRELY legal for them to be that way.
"Not necessary to enter the residence, "I told them to go around back and talk to her.” Problem solved."
Not really. Officers still need to do a quick sweep of the residence to see if there are any injured parties or if the children are okay. One officer also typically needs to keep an eye on each party in the disturbance to make sure someone doesn't grab a weapon.
It looks like these guys were doing a pretty standard investigation of a domestic disturbance and this guy just freaked out.
I do agree that they shouldn't have threatened to arrest him for recording them. However (and I know this will get everyone stirred up) due to his agitated behavior, I would have had him sit down. If he didn't listen, I probably would have put him in cuffs until he calmed down.
Lets see, cops come to your house, you haven't even bene there long enough to take your coat off, and they demand entry.
Exactly how many people given that scenario WOULDN'T be agitated. We are asusming domestic disturbance, what was reported during the 911 call? All we got was disturbance.. Noise? Violence? What?
You come to my door and demand entrance, you WILL NOT enter. Tangible articulable exigent circumstances are the ONLY LEGAL way to get around a denial of entry in the moment. You WILL EXPLAIN yourselves and I will decide whether you enter. Keeping in mind that entry without a warrant and articulable exigent circumstances will generally cause your search to be suspect.
Your duty to investigate is bounded by the Constitution above all else.. And no one has a duty to help you investigate. The home has special protections that have historically been VERY WELL respected by the courts, I view intrusions into my home as death penalty offenses. Perfect example, a family in Arizona, Loudermilk I think is their name had DHS come to the house, the case worker was under the mistaken belief that just because she had a duty to investigate (a report had been made about 6 weeks before) that they had a duty to allow her to in violation of their constitutionally protected rights.. There were obvioulsy no exigent circumstances, 6 weeks had passed. She was stripped of her qualified immunity and so where the cops who were there.. The only question right now is how big of a check is going to be written.. They were told that DHS MUST abide by the Consitutionm, their argument related to the protection of children didn't affect the consitutional position.
Short answer, just because its procedure doesn't make it legal.
Now, their issue with the camera further adds to my suspicion. I don't have to deal with cops much, which is good. But when I do I generally record.
@Elliot
"You come to my door and demand entrance, you WILL NOT enter. Tangible articulable exigent circumstances are the ONLY LEGAL way to get around a denial of entry in the moment. You WILL EXPLAIN yourselves and I will decide whether you enter."
LOL
Okay. Let me know how that turns out for you. Remember, the jail phone will only let you make collect calls.
I'm not worried.
Back to my original question, under what theory of law allows you to enter the home? How do you satisfy the requirements of the 4th amendment? Just because we do it isn't an answer..
As an extreme example the supreme court has stated there is no murder scene exception to the 4th amendment.. If you can't just waltz it to a murder scene without a warrant if the property owner denies you. What do you? Get a freaking warrant..
@ Elliott
"Back to my original question, under what theory of law allows you to enter the home? How do you satisfy the requirements of the 4th amendment? Just because we do it isn't an answer.."
Tons of case law exists that allows police to enter a home under exigent circumstances.
Go to:
http://www.caselaw4cops.net/searchandseizure/exigent.htm
and read up on it.
"As an extreme example the supreme court has stated there is no murder scene exception to the 4th amendment.. If you can't just waltz it to a murder scene without a warrant if the property owner denies you."
Your example is incorrect. This scenario means that police can't search a house for evidence just because a murder occurred. However they can search the house for more injured people or to make sure the scene is safe before they lock it down in anticipation of a warrant.
I'll agree on the sheer limit that they can't search the house for evidence only more people and they could lock it down, but then again that it is an extreme case and I don't think it would require much to get a warrant.
I read your link and I didn't see a single case that illustrates your point. The statement "Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." can hardly be met by a simple phone call and no other tangible evidence. Also the exigency exception was explained a little different in one of the cases that the supreme court adjudicated, it was "the
exigent circumstances exception to the warrant requirement. This exception applies, the court explained, where police have probable cause and where a reasonable person [would] believe that the entry was necessary to prevent physical harm to the officers or other persons. Or One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. You don't have any evidence of ANYTHING, the officers have witnessed NOTHING, so reasonableness? I don't think so. The closest you came was: Johnson v. the City of Memphis.
Most of the listed cases I agree with the exigency of them the rational balance of liberty vs protection is delicate. But this mentality of we got a call we are coming in fails badly on Consitutional grounds..
They can't go into a murder scene without permission? That is one of the stupidest things I ever read on this website. Sure they can enter the scene without permission or even if being flat out told no. They can enter, secure the scene, including a sweep for suspects/victims and then get a search warrant. Entering the scene and securing it requires no warrant and no consent.
They could do a sweep and secure the scene but they could do no investigative searches over the objections of a property owner. While I agree they could easily get a warrant but the owner can cause it to be limited in its scope.. That is the law. My point was that even in the case of a murder the 4th amendment STILL applies.
The fact that you just said "Stupidest" is pretty stupid. There is another issue. American and bad grammar.
A number of dictionaries disagree with you. Stupidest is an accepted superlative form of stupid. The fact that you don't like it doesn't make it invalid.
Yes, he could have said "one of the most stupid", but it works either way.
(If your objection is that he used a superlative instead of a comparative, he's also in the clear because he was referring to the class of things which are, collectively, the most stupid, and so the superlative is a reasonable construction.)
Wow! These cops are busted if the full report does not 1) clearly state a very important occurrence that they entered the house to "check for occupants" based on tangible articulable exigent circumstances (AND in accordance with their departments policy), and 2) the victim follows up and through with the complaint on them. In my experience it doesn't matter whos legally right or wrong, police who abuse their discretion often are let off the hook just because people want nothing to do with the process of holding them accountable. Coupled with both the conflict of interest of police investigating themselves, and a culture of protecting municipalities from litigation, the officers who now have gotten away with it are empowered to further their abuse of discretion and similar conduct of abusing both victims and suspects.
From what I see the officers realized that they were being recorded and that they might be caught violating this persons civil rights so they got mad and upped the ante by threatening to make an arrest. I believe they have the legal authority through their perverse interpretation and use of arcane wiretapping laws, but an impotant fact is that it would still be unprosecuatble if they observed the crime through entering the home without probable cause as outlined previously (depends on whether there were tangible articulable exigent circumstances in the first place). If this was not MA or IL the threatened arrest, if made, would have been a false arrest, and in case you are a cop... stand-by, because federal rulings will probably overturn these laws in the next five to ten years. In most other states if your cops act like that they are acting improperly.
This all leads to the some important points: Cops often have no post-secondary education, and with the exception of their agency and fraternal inputs, they often lack understanding of the specifics of any given law. This is understandable since legal codes are volumes of books and even lawyers must specialize for years to understand subtle points. It is funny because though it is is clear that they cant know it all, you will never get a cop to admit this while they are in action...that is why I advise people who perceive harassment from the police to immediately request a supervisor be on scene. This lack of legal knowledge actually leads to a greater flaw in the logic of our legal system but that is for another day.
The main points here: 1) Cops often abuse their discretion and break the law themselves in the process of covering their own asses; every cop knows this and usually will admit that OTHER cops and OTHER departments have these problems but never their own. 2) the worst cops, and those least fit to serve, are thin-skinned hot-heads who know the game and will make false arrests anyways because they know 99 percent or more of the time they will get away with it. The scariest part is that the leadership usually facilitates an atmosphere of protectionism for these individuals, and secretly they themselves see civil rights of criminals as an obstruction to their job anyway.
I cant be sure but any cop that jokes that "phones in jails are only collect" realizes that ultimately the mere arrest with no real pathway to hold corrupt cops accountable is punishment itself for the victim of their abuse. I am ashamed if you serve!
Brilliant!
"2) the worst cops, and those least fit to serve, are thin-skinned hot-heads who know the game and will make false arrests anyways because they know 99 percent or more of the time they will get away with it."
This, unfortunately, explains a lot of the problems with police forces today. And what makes it all worse is that the corps of thin-skinned hot-heads lie. Cops lie constantly. Cops lie constantly, and with total impunity, and they know it.
Lying is practically a job qualification for the modern-day cop. Until lying is looked upon as a disqualifying factor instead of as a bonus, things will never change.
big deal just cause a pussy cop is afraid of jail don't mean everyone is. that all you got? ooohhh i'm gonna arrest you and lie about it. so scary. the check would have been a lot bigger if the testalyin pigs had arrested him lol false police report. is that a crime?
"...I would have had him sit down. If he didn't listen, I probably would have put him in cuffs until he calmed down."
"Johnny (Cops Can Do NO Wrong) Law" will use any excuse to show the public who's boss! It's "Badge Bully" cops like this that leads to their disrespect by people.
Rail Can Fan
I suggest some reading for you JL, if you are inclined to put someone in cuffs for acting 100% naturally.
John Bad Elk VS The United States, April 30th, 1900. It's a U.S. Supreme Court case. Never repealed, reversed or overturned. According to the court, shooting an officer who is attempting a false arrest is not murder but manslaughter, and if the officer used force first, it's not even a crime.
Arrest happens with cause. Being agitated when you are accosted in your own home is not a crime, and an arrest for not committing a crime is false arrest.
I've read it before but it's not applicable to this situation. I'm allowed to cuff someone for my protection when they are acting like this guy did if I have a legal reason to be there (such as the 911 call).
It's not an arrest in this case. The guy is already detained since I am investigating a possible disturbance. All nice and legal.
I've done it a hundred times before and never had it challenged or questioned.
Just because you've never been arrested for a crime doesn't mean you didn't commit one.
An arrest occurs, legally speaking, when you detain someone against their will. Quite literally, when you arrest their freedom of departure. If a reasonable person believes they are not free to leave, then an arrest has taken place whether cuffs are used or not. Though if they are used, there is no equivocation whatsoever on whether an arrest has occurred.
An arrest occurs at the moment of detention, not at the moment of restraint, or when the arrested individual is booked, or when charges are filed.
Lawful arrest requires lawful cause, and without that cause, it is false arrest. The fact that you may have committed false arrest hundreds of times does not make the arrests legal. Just like someone committing hundreds of burglaries doesn't get a pardon as a volume discount.
If you really have committed that many false arrests, count yourself lucky that few people are aware of their right to resist a false arrest up to and including the death of the officer attempting the false arrest.
If they had probably cause to enter, why did they lie on their police report and say they didn't enter? Why do you insist on defending the scumbags if you claim they are the minority of cops?
Where does it say they didn't enter the house? Their report says the guy refused to let them enter. He did refuse but the police came in anyway. Big difference.
I defend these guys (in most cases) because you folks have no idea what you are talking about most of the time. They had enough to enter the house. No warrant was needed. They have the right to control the movements of the occupants while in the house as well. Domestic disturbances are dangerous things for officers and they are trained to maintain control on them just like they are on traffic stops.
You people crack me up. You're the same ones who scream on traffic stops that the officer legally has to show the radar to them. Or claim that there is a law that police officers can't wear a jacket that covers their name tag.
So let me try to understand this. In a domestic isn't someone supposed to go to jail? I happen to know one of the cops....dana burrill! He's a weasel! He was called to a domestic before where there was clearly a problem and instead of arresting the man he brought him down to the bar! The man was threatening murder with a baseball bat! Cops are above the law because they have a gun and a badge!
Johnny Law,
Your are 100% wrong.
It wouldn't matter one bit what they were told over the phone. The police have to personally find evidence that would justify exigent circumstances in order to enter without a warrant. No case law would ever give your jaded neighbor the ability to send cops into your bedroom with a phone call.
The police were even told that she was outside on the patio and to walk around the outside of the house. Of course that pissed them off, so they did what many cops do best and escalated the situation into violence immediately.
That's the default reaction to being told "no".
And to add insult to injury, they threatened to arrest him for recording them in his own fucking house. That is legally no different from a burglar suing you for wiretapping when he realizes he's on camera.
Oh, there's one difference. A burglar suing someone for eavesdropping is an outrage, but not a crime. A police officer arresting someone for exercising first amendment rights, on the other hand, runs into federal law.
18USC242.
@nigmalg
"It wouldn't matter one bit what they were told over the phone. The police have to personally find evidence that would justify exigent circumstances in order to enter without a warrant. No case law would ever give your jaded neighbor the ability to send cops into your bedroom with a phone call."
Wrong.
I've been a cop for over a decade and you are simply incorrect. We do it all the time based on neighbors calling and we get convictions on those cases.
Sorry but that's reality.
Let me see if I get this right, somebody calls and you what, barge into a house.. Thats gets you killed at my house..
What do I get charged with if I decline your entry into the house? Either way that would seem like a pretty easy charge to beat.. "did they have a warrant?", "no", "did they have exigent circumstances?", "someone called and said they heard noises but weren't specific", "dismissed"..
And I know the call alone isn't enough to get a conviction, its hardly even evidence..
i'm going to look up the law here in Iowa and see what our law says.
The law on that varies from state to state. I'm pretty sure Massachusetts is NOT a castle doctrine state so even if a CRIMINAL forces his way into your house you are legally required to retreat. I know there is one state where you are NOT allowed to resist cops coming into your house even if they have no warrant and zero probable cause.
Telling Mr. Nunez he can't film was total bullshit. You mention domestic violence calls are potentially hazardous to cops, so isn't it better if a persons hands are holding a camera and he's busy filming, rather than free to grab a gun/knife?
The law here in Iowa NEVER requires you to retreat from your home, EVER. And even when you might have a duty it is not absolute, If it would put you or someone else in danger to retreat or it is in anyway unsafe to try.. Basically, you don't have to in many cases.. In your home theoretically you must be in fear of your life but if you enter my home uninvited I will assume nothing less..
Also you are not allowed to resist an arrest that you know is unlawful.. So says the Iowa Supreme Court. However with that said, if I had out of control cops trying to arrest me I'd rather take my chances with a jury when I alone get to tell the story of what happend..
You don't have to take my word for it. I don't give a damn how long you've been a cop.
If you enter my house without exigency and without permission or a warrant, you will lose the civil suit, or worse. A neighbors phone call would not, by and in itself give you exigency to enter.
As an arriving officer, you would need independent exigency in order to enter without permission. A scream, a yell, a cry for help, etc.. If you're told that the other member of the household is accessible in the backyard without entering the house, and you still enter, you will lose the civil suit, or worse.
The last couple hundred years of American jurisprudence guarantee it.
@ nigmalg
I never said I could enter your house with exigency. We both agree it is needed. The problem is that you are incorrect on what the court feels is sufficient circumstances to create that exigency. Depending on the situation and what was said, a phone call is enough. I don't need to hear a cry for help if the original caller was detailed enough in his call. Each scenario is different but I assure you that sometimes a phone call is enough.
How do you know they didn't have more information then just the phone call. Carlos is known for leaving out facts that are favorable to the police.
Well Johnny it looks like you got it now! We are talking the law, while you are talking reality. Isn't it a shame that police forces don't have the ability to synthesize the two?
"Wrong.
I've been a cop for over a decade..."
Oh, the length of time you been employed is a direct correlation to the accuracy of your statements?
Dude, I don't think so.
I think the more time you've been a cop, the more likely you are to be a lying POS.
I believe any rational examination of the evidence would show that my correlation is much closer to reality.
@ Johnny Lawbreaker
"Oh, the length of time you been employed is a direct correlation to the accuracy of your statements?"
Yeah actual experience with the topic being discussed is a plus. It's obvious many folks here are just talking out of their ass with no real knowledge.
Johnny L...you're a typical thug with a badge. Tase anyone lately? You're probably missing that.
I tased someone just last week so I am good for awhile. Thanks for asking.
JL, you seem to be claiming that you habitually break the law, and that your entire organization does so as a matter of standard policy.
Just because you always do something doesn't make it legal. Committing the same crime repeatedly over a long period of time results in a multitude of charges, not a repeal of the law.
Have you ever heard of the RICO Act?
Sorry but just because you disagree with a law or legal precedent doesn't make it illegal or unconstitutional.
You're right, my disagreement doesn't do so. But what does make it illegal and/or unconstitutional is when it contravenes the constitution. The behavior you've described repeatedly in this thread does that.
Just because your co-conspirators don't file charges against you doesn't make your actions legal.
I know I shouldn't laugh at this guy but I can't help it. I can see he's all hyped up, but would it have killed him to call his wife from the other room so the cops could see she was alright? They would have been gone in 2 minutes and he wouldnt have been all worked up in a frenzy, calling to the internets for help...I dont get it.
First couple times I watched it, I thought it was staged...
Yeah, and Rosa Parks should have just moved to the back of the bus. Why get all worked up about things?
Neither a welfare check nor a disturbance justifies entering a home without consent.
Police would need probable cause that a person inside was suffering from or in imminent danger of serious bodily injury in order to justify entry under the "imminent danger" exigent circumstance.
"Neither a welfare check nor a disturbance justifies entering a home without consent."
Wrong.
Well, that's your opinion. Unfortunately, both the U.S. Constitution and the Supreme Court disagree with you.
Exigent circumstances do permit a warrantless entry, but there actually have to be exigent circumstances first.
I think you are really pushing this one Carlos.
How is he pushing it? This is actually a very clear case of abuse. Even if you forget about the warrantless intrusion, he still threatened to arrest the resident for video taping in his own house.
Fu...Fu...Fuck da police.
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