It is not entirely clear that there is a problem here. Let us assume that the police really did receive a call that firearms were being sold. If this is true, then it is entirely legitimate that they show up and check the situation out.

More: you can hardly accuse them of trespassing, or conducting an unauthorized search. After all, a yard sale is a public event, where members of the public are expected to come and look at your stuff. I'm not seeing a 4th amendment violation here.

Sure, one needs to know ones rights. However, this may be more of a manufactured confrontation than anything else.

@ a_random_guy -

Oh, come on. You can do better than that.

There's no law against selling guns. So the 'call' that the officer claims he got amounts to nothing more than a call that somebody is doing something which is not, on its face, illegal. The police do not get to check any and every act on the basis that, because it might be an illegal act, they have to check and be sure. Driving down the road, you might be drunk, or fleeing from a bank robbery. The police do not get to stop you 'just to check'. That is at the very heart of the 4th Amendment.

As to the trespass issue - a yard sale is presumably open to the public (not the same as 'a public event') but if held on private property, the property owner has the absolute right to deny access to anyone he chooses. The officer had the same implied right of access as anybody else the first time he walked up - but the minute he was asked to leave, his right of access was terminated and he should have left. He had no probable cause to believe that any crime was being committed - even if the folks were selling real guns, that is not necessarily illegal. A phone call claiming that a crime is taking place is not 'probable cause' - it's a phone call. And he had no other exigent circumstances. His only recourse if he wanted to search the premises was to obtain a warrant.

If the confrontation was manufactured, it was the officer that manufactured it, by asserting a right he does not have and performing a self-evidently illegal search.

Well done to the homeowners for knowing their rights and asserting them repeatedly and calmly. It sounds like they have experience in doing so.

llater,

llamas

The 4th Amendment is pretty much on its way out, thanks to DUI roadblocks and the TSA which have both been approved by our wonderful federal courts.

And there was no 'accusation' of trespassing. You are on my property, I asked you to leave. You ARE NOW trespassing in every legal sense of the word, badge or no. Get a warrant, Dick Tracy.

Good points from Llamas and DrCos. I would like to add that since the woman was part of an organization that highlights police abuse of power, and the cop said several times "yeah, I know you," and the woman said "I know you, too" or something like that, it wouldn't surprise me at all to learn that the phone call was from a friend of the cop, trying to help him put an uppity citizen in her place.

The Original Kit - I think you are on to something here; there is more to this story than just what we see.

If there was a real concern (and there very well could have been) what the cops should have done was send someone in plain clothes to check it out and then get a search warrant if there really was a problem. (or, maybe I watch too many cop dramas on TV?!)

Instead, what most likely happened was the cops thought - finally we've got them on something!

I would like to know more of the back story. Both the cop and the woman insinuate that they know who the other is. If its a case that the cop feels the place is a trouble spot, was the call real? Did the cop push aside probably cause thinking he could just go find proof? Interesting.

Charkes wrote:

'If there was a real concern (and there very well could have been) what the cops should have done was send someone in plain clothes to check it out and then get a search warrant if there really was a problem.'

Er - no. You don't get to bypass the 4th Amendment simply by taking off your uniform. The search is illegal, regardless of the mode of dress of the officer.

Even if some unaffiliated citizen had called the police and said 'They are selling guns at their yard sale!' that is still no basis for a warrantless search, because selling guns at a yard sale is not necessarily a crime. The police need probable cause for a warrantless search of premises. An unsubstantiated report of activity which may or may not be criminal is not enough. Especially considering that 99.99% of private sales of firearms in the US are entirely legal, so it is far-more likely that guns offered for sale are being offered and sold entirely legally. There's just no evidence, or even likelihood, of any crime being committed or contemplated here.

See also 'prior restraint'.

Law-school exercise - name 3 separate, additional pieces of data which would have made this search entirely proper, and legal.

What the cops could/should have done is to respond to the address and politely ask the owners to speak with them voluntarily. If that still did not satisfy them, or if the owners declined to speak with them, then they still have the option to take their phone-call 'evidence' to a judge and attempt to get a warrant. Otherwise - too bad. The Constitution trumps the cops' ideas of what constitutes efficient law enforcement, every time.

As said, there's more story than just this video. Obviously, this lady has had plenty of run-ins with her local police, and the officer knows it. My read, based only on what I see on the video, is that the officer sees this lady as an antagonist and an enemy, and that he's trying to 'teach her a lesson' or demonstrate his authoritaaaay, and he quickly lost sight of any actual law-enforcement or crime-prevention goal. And he ended up doing the monkey dance with her. Look at him - it's all posturing, the hand-on-holster, break-hip lean, and then he slopes away. Not actually a shining advertisement for the local police department, is it?

llater,

llamas

I wonder if the phone call was a set up and the woman was trying to entrap the cops?

"I wonder if the phone call was a set up and the woman was trying to entrap the cops?"

Speculation, but even if true: "If you had not gone down that path, you would not have discovered that trap."

I first saw this on your blog and have tried to commit its details to memory...

People need to understand this on a deep level. You don't have to talk to the police. You don't have to talk to the police. You don't have to talk to the police.

Suppose an off-duty cop is at the yard sale. He's off duty, so he's dressed just like everyone else and just looking to buy some stuff.

Suppose now, he thinks he sees something illegal (drugs, military grade weapons, etc). Being a cop, he calls the cops and says, "hey, there's a yard sale at 123 XYZ street & they're selling something illegal."

Does THAT constitute a violation of one's rights? I'm guessing no.

So, if a plain clothes officer shows up, views only what is open to the public, does THAT constitute a violation of ones' rights? Presumably, the whole point of plain clothes officers is that they don't stick out and are more likely to catch illicit behavior that way. Now, I'm not saying they go into the house, peek over the fence, or anything. I'm saying JUST look at the items indicated for sale.

I think there are some "plain sight" rules involved in most places. For instance, if you park your car outside and the tags have expired, the police can cite you for it because they can see it from a place accessible to the public. If your yard is open to the public, that could reasonably be construed as plain sight.

However, say the owners recognize the officer (on or off duty), and ask that said officer leave their property, you still get into trespass issues.

I agree with the statements that it seemed set up. I also agree that, once asked to leave, they should have (w/o a warrant). However, I don't see why they couldn't just stand on the sidewalk and watch to see if guns were being sold.

One last thought - it doesn't make sense for it to be illegal for them to set foot on private property without a warrant. If they want to ask questions during the course of an investigation ("did you hear anything outside last night?"), they have to walk up and knock on the door. So, merely going onto private property shouldn't be an issue (until told to get off the property).

The cop was pushy, and in the wrong when he didn't leave immediately, but I *do* want police to check out tips (of illegal behavior - I don't know if selling guns is illegal in that jurisdiction w/o a license).

@Shannon M. Howell

If an off-duty officer happened upon self-evidently illegal acts, in the way that you describe, and called on-duty officers, that is probable cause and a warrantless search is perfectly justified under 4A. Same would apply, for example, if the officer knew of his own knoweldge that the seller was ineligible to own firearms, for example, or that a firearm being offered for sale was reported stolen. In other words, an actual crime.

But that's not what happened here, or what has been suggested. Because the acts being described as allegedly occurring (we don't know whether they actually did occur, and anyway it doesn't matter whether they occurred or not) are not self-evidently illegal.

Sending a plain-clothes officer to search in response to a vague allegation of an act that is not self-evidently illegal remains an unlawful search because there is no probable cause to believe that any crime has been committed or is about to be committed. It is nothing more than a fishing expedition.

There are indeed 'plain sight' exceptions that apply to the generation of probable cause, but they really don't apply here. Even if the yard sale had included a row of shiny AR15 rifles in plain sight, that by itself is not probable cause for anything, because owning and selling AR15 rifles is not self-evidently illegal.

The only legal course for the officers was to walk ap and ask questions, which anybody is, of course, free to refuse to answer. And, if told to leave, to turn around and leave. The Constitutional rights of the citizen(s) are more important than the desires of the police to investigate unsupported allegations of acts which are most-likely not criminal anyway. I hear about far tioo much of this sort of thing - the flimsiest of pretexts being used as grounds for the most aggressive 'investigation'. Oftentimes, the pretext is exactly that - a pretext, intended and used as a way to try and uncover some other crime or crimes that the police cannot uncover by legitimate Constitutional means, but which they feel compelled to try and discover by any means necessary. Since every one of us unwittingly commits (by some analysis) at least three felonies a day, these sorts of pretextual approaches are extremely hazardous to our liberies.

llater,

llamas

I just looked it up and all gun sales in CA are supposed to go through a licensed dealer and are subject to a 10 waiting period. This includes private sales. So, it is illegal to sell guns at a yard sale. Just like it would be illegal to sell your prescription (non-narcotic) drugs at a yard sale too.

Personally, I agree that this was a set up job....by the homeowners. They were ready with a camera and were not all that interested in talking to the supervisor. The cop displayed restraint and was courteous throughout what he knew would be a difficult exchange with a known trouble maker. This was not the best representation of abuse of power by the police.

If I were you, I would save my outrage for a real case and not this manufactured bullshit. These people have an agenda and were clearly staging this incident to showcase it. You can't open your yard to the public and then claim the police are trespassing. There is no case law that would support this idea. If you have it, please site it. Also, the court has taken a pretty broad view of the plain sight rule, so again you are claiming the exception so you should give us the case law that supports your view.

For those interested, here is the link about how to legally sell a gun in CA.

http://oag.ca.gov/firearms/pubfaqs#3

I think that, just like all professions, there are good cops and bad cops. I've met some of the police in my area (DC suburb). I've had some great interactions with them. Including one who waited with us when our car broke down in a really dangerous place.

Obviously, that doesn't imply that they're all wonderful and never go 'fishing.' Outrage at those cases should be loud and swift.

However, if somebody calls in a potential issue (particularly a "bad" one like gun fire, domestic dispute gone violent, etc), I think the police have to check it out. That might be just stopping by to see if it's a real call (sadly, some aren't).

A few years ago, I came home during the day to see a man standing at the door of a vacant house down my row. He had a hammer and a crow bar and was hacking away at the door (in the middle of the day). I called the police. My call could have been (from their perspective) a phoney. After all, who breaks into an empty house in the middle of the day, in the front yard, where you are in plain view of nearly 40 other front doors?

The police arrived a few minutes after I called. They talked to the guy for awhile, and then left. So did the guy. The door was still attached to the house.

Probably a renter who'd left something inside. Maybe a potential squatter. Either way, it wasn't his door to break down. I'm glad the police came.

I agree, in CA, selling real guns at a yard sale would be illegal. I forgot this asinine stupidity in CA law, since I don't live there. In almost all other states, this would not be the case. Of course, there was/is absolutely no evidence that this is what was actually going on.

Do we know that this was in CA?

However, I do not agree with this:

'The cop displayed restraint and was courteous throughout what he knew would be a difficult exchange with a known trouble maker. This was not the best representation of abuse of power by the police.'

The cop did not display restraint - quite the opposite. He was told to leave, but refused to do so, and continued with his illegal search.

If the exchange was difficult, it was because he made it so.

And - guess what? "Known trouble-makers" have Constitutional rights, too.

Your designation of this person as a "known trouble-maker" could just-as-easily be positioned as "a person who holds the police to account".

"These people have an agenda" - maybe so. But that does not invalidate their Constitutional right to be free from unreasonable search and seizure.

You claim that they staged this incident. Your evidence for this assertion is zero. But even if they did, it does not absolve the officers from the responsibility to keep their actions lawful.

As to this:

'You can't open your yard to the public and then claim the police are trespassing. There is no case law that would support this idea. If you have it, please site it.'

Of course you can. If you open your yard to the public, you get to rescind the implied right of acess of anybody you choose, for any reason or no reason. Including the police. It is entirely up to the property owner to decide whether any person on his property is an invited guest or a trespasser, and to change his mind at any time. If a person is/becomes unwelcome, and has been told to leave, he becomes a trespasser, and if he refuses to leave, he becomes a criminal trespasser. Including a police officer, absent any lawful justification for his presence.

This is common law - there is no case law to cite.

llater,

llamas

"It is not entirely clear that there is a problem here. Let us assume that the police really did receive a call that firearms were being sold. If this is true, then it is entirely legitimate that they show up and check the situation out."

Wow, just wow. Seriously? If a mere *claim* that there was a phone call from a stranger (let alone an actual phone call, which is equally flimsy) now constitutes "probable cause" that a crime has been committed, then we are well and truly beyond f-cked. If they have evidence, get a warrant, come back. HOW HARD IS THAT TO UNDERSTAND.

(In any case, why should selling a gun be a crime, even if there was a phone call?)

"More: you can hardly accuse them of trespassing, or conducting an unauthorized search. After all, a yard sale is a public event, where members of the public are expected to come and look at your stuff"

Lol. So now you lose private property rights because you have a yard sale? Just because you have a yard sale, you must now be forced to allow anyone, including, say, your own rapist if you're a rape victim - onto your property? Are you for real or just trolling?

Private property, no evidence of any crime whatsoever, not even enough to get a warrant. Sorry, but this isn't even vague and ambiguous, it's incredibly clear cut, and the cop should have left their property the moment they asked him to leave - from that moment, he is guilty of trespass, and probably other crimes/violations against them.

@Shannon "Does THAT constitute a violation of one's rights? I'm guessing no."

I say yes -- let me rephrase the question to make it clearer: If the owner of a private property knew that the individual was a plains-clothes cop sniffing about and trying to 'blend in', would the owner of the private property (assuming it's those in this video) have wanted/allowed that cop to be there? No? An on-duty cop (clothed or not) has NO BUSINESS being on private property without permission, if there is no evidence (probable cause) of a crime being committed - end of story.

Whether a crime is being committed is actually a DIFFERENT question, and you are conflating TWO separate questions, which is only confusing matters. Question one is whether cops are allowed to trespass on private property without a warrant (THEY AREN'T), in cases where there is no evidence of crime taking place . Question two is what happens in the case that someone, anyone, including an off-duty cop, ACTUALLY witnesses ACTUAL crime taking place. These are separate issues, but you've conflated them.

An off-duty cop who is genuinely in plains clothes and genuinely just shopping at a yard sale, has right to be there unless the owners indicate otherwise. However, if he witnesses actual crime taking place, then when he phones in, he is doing so in the same capacity as a citizen would be doing in phoning in (though it may carry slightly more weight in obtaining a warrant) ... the cops still do not have a right to bust onto your property unless they have a warrant or someone's life is in danger.

The officer's unifrorm says San Jose on it and as far as I know, San Jose is located in CA. Since we agree that the sale of guns at yard sales is illegal in CA, he is well within his rights to investigate the complaint. Second, the property in question is an apartment complex, if they are not in fact the owners of said complex, they can not claim trespassing. We have no proof either way. Thirdly, he never raises his voice, uses expletives, and does try to explain his purpose for the visit. According to clock on the video, he was on "their" property for less than a minute. Hardly, Rodney King territory. He got off the property and none of the back up officers went on to the property either. So how was it that they were unprofessional?

Actually you can site common law. Case law is what defines common law. That is how you support common law positions. So I will ask again, what case law can you point to that says a police officer doesn't have the right to conduct a plain sight search to investigate of a complaint. I agree that open drawers or enter a house he needs a warrant. But to look at stuff in plain sight nope. This is another case of a little knowledge being a dangerous thing.

I'm not on board with the notion that cops can not go on private property at ALL without a warrant.

Where I live, many of the streets are privately owned (by Homeowners Associations, etc). If police need a warrant to step foot on private property, in the case with the guy trying to break into the house (I mentioned that above), the police would have been trespassing just to check it out - just by driving on the road!

They couldn't go looking for witnesses by knocking on doors, they couldn't even walk up to somebody's door to ask them if they'd answer some questions or seen anything in a missing persons case.

Back when we were far less urban, the police might not have been able to see your house from off the property (farmland). How the heck could they knock on the door - even if they just wanted to ask a question (especially before phones)?

I agree that, once told to leave, they were in the wrong to stay. I do agree that they can't "bust" onto your property... where bust is defined as using some type of force such as pushing a door open, picking a lock, going into a yard with a privacy fence.

However, I don't think we can call it trespassing to go on private property that is expressly open to all comers (yard/garage sale, private street, etc).

One other thought. My elderly grandmother "fell off the map" for a couple days a while back. When her neighbor didn't see her for a couple days and she didn't answer the phone, she called my Aunt. After calling many friends and neighbors, as well as Grandma's home line, my Aunt called the police. Were the police trespassing when they went to my grandmother's house to check on her and look for signs of forced entry? My Aunt COULD have been an angry neighbor making a false phone call. They would have no way of knowing without checking... which meant walking up to her front door, knocking, checking to see if the door was unlocked, etc (in addition to checking area hospitals).

Oh, Grandma was fine, in case you were wondering :)

The officer's unifrorm says San Jose on it and as far as I know, San Jose is located in CA. Since we agree that the sale of guns at yard sales is illegal in CA, he is well within his rights to investigate the complaint.

There is also San Jose, NM 87565. But assuming it is California, offering a firearm for sale is not illegal. The transfer without a NICS check is illegal in California, and some other states. Where was there shown any intent to make an illegal transfer? As far as the NICS check -- you can download and print the the form 4473 from www.atf.gov/forms/download/atf-f-4473-1.pdf. The purchaser and seller can then fill it out and scan it in or arrange to meet at the FFL at a later date to complete the sale.

Second, the property in question is an apartment complex, if they are not in fact the owners of said complex, they can not claim trespassing. We have no proof either way.

Then if you are a renter the cops can come in and search your apartment at will? I don't give up my 4A rights if I rent.

The common areas such as yards, club houses, parks, etc. should (hopefully) be judged as private property if it went to trial in this type of case. When the renter asserts their rights in this case, the law should assume the renter has the rights, by proxy, of the property owner.

Thirdly, he never raises his voice, uses expletives, and does try to explain his purpose for the visit. According to clock on the video, he was on "their" property for less than a minute. Hardly, Rodney King territory. He got off the property and none of the back up officers went on to the property either. So how was it that they were unprofessional?

Actually in most places LEO cannot ask for your name without "specific and articulable facts" that would indicate to a reasonable person that a crime has been, is being, or is about to be committed. (Google "Terry Stop".) In the video -- did they have any evidence that anything illegal was going on.

Actually you can site common law. Case law is what defines common law. That is how you support common law positions. So I will ask again, what case law can you point to that says a police officer doesn't have the right to conduct a plain sight search to investigate of a complaint. I agree that open drawers or enter a house he needs a warrant. But to look at stuff in plain sight nope. This is another case of a little knowledge being a dangerous thing. -- Sheep mommy at July 12, 2012 12:32 PM

I'm just going to point you to this video to answer your question. I won't be able to get past Amy's spam filter if I cited each case that is the built up case law for the plain sight search. What I'd like you to cite is what the seller was doing that was probable cause for the LEO to even show up?

Sheep mommy I have never seen someone here with a more appropriate name than yourself.

You agree it was a setup job...by the homeowners. And your sole basis appears to be that they had a camera ready. Well who the hell does NOT have a camera ready these days? Name me ONE smart phone that doesn't have a camera included.

If anything, it was the cops who "set this up" if indeed it was a setup at all.

Why do I say this? Because police departments set up this shit all the time. Got a complaint against the police department, see how often you get pulled over after that compared to before, see how quick they are to demand you turn off your cell phone if not turn it over.

And those types of calls, yes police officers have done this themselves in the past. A police department some years ago called a guy they thought was selling weed, and said if he came in with it and turned the plant over he would not be charged.

Then he showed up, and they arrested him, and tried to claim that no, they'd never called him, it must have been a prank call...only for the whole thing to eventually come out.

SO...what we have "Sheep Mommy" is a couple who has no known history of set ups against the police at all...and an institution that manufactures so many incidents per day in cities and states around the country that a search on google or youtube will not fail to return thousands of results.

So tell me again how the citizens set up the cops.

And tell me how, even if it were, that enables the cops to violate their constitutional rights. If he really wanted to make a point about how good the cops are, he would have abided by their instructions, left the property, and respected the constitutional rights of the people he is supposed to SERVE.

--------------------------

That someone is polite in violating someones rights, does not make the violation more acceptable.

Second, whether they own the property or not, is irrelevant here. If they live there, rent there, pay for it, they have their privacy and 4th ammendment rights.
Even if the police had called the landlord and asked to search the property, the landlord themselves cannot grant police the right to search what his tenants pay for.

And for the umpteenth time sheepmommy, he does not have to remain on property and search that property unless he has a warrant. If he is asked to leave, he must leave. He can stand on the public street and look sure, but if they ask him to leave the grounds, he can't stick around and rifle through stuff on the off chance he might find something illegal.

If that were the case, cops could go through street vendors and store fronts on a whim.

There is an exception, for example if they were to hear someone calling for help from the basement of someone's home, they'd have reason to go in.

There must be a cause to believe someone is in immediate danger. This was not the case here, in which case they must have a warrant to go on to private property and conduct a search. They can no more wander on and rifle through goods on your yard than they can wander into your house and look around for stuff in plain sight.

Yes, it is San Jose CA. I live here and recognize the cars and uniforms. SJPD has a well earned rep for over aggressive action. It wouldn't surprise me in the least if the cops set this up themselves.

Even if the police had called the landlord and asked to search the property, the landlord themselves cannot grant police the right to search what his tenants pay for.

Depends on the rental agreement. And even then a rental agreement allowing the lanlord to admit police still limits police to plain sight restrictions within the apartment sans search warrent

OMG

It is *absolutely* illegal to sell guns without a dealer's license. In every state in the union.

ATF laws people. Been in place since the thirties or forties.

It is *absolutely* illegal to sell guns without a dealer's license. In every state in the union.

ATF laws people. Been in place since the thirties or forties. -- deathbysnoosnoo at July 14, 2012 8:33 AM

You are 99% wrong. The commercial manufacture and commercial sale of firearms is illegal without a dealer's license per the BATFE.

I can sit at home and make all the firearms I want legally. I can never sell or transfer them without a license. There are also restrictions on barrel length, automatic fire, and attached devices (such as silencers) that are there regardless of commercial or private manufacturing. The basic firearm is not restricted from private manufacturing or use.

On the sales portion:

In most states a person can legally sell their privately owned firearm(s) to another person unless they know they are a felon, crazy, or otherwise restricted from owning or possessing a firearm. They never have to talk to anyone from the government.

Some states, such as California, require you to go to an FFL to do the paperwork for the transfer and have a 10 day hold on the private transfer. (Of course that stops all the gun violence in South Central L.A. and the SF/Oakland.)

Amy,

I admit I forgot the important qualification in your state to another resident of your state.

snoosnoo, Jim P is right. You should look up the regulations yourself. I suggest the Treasury website.

They will show you that if you are not in the business of selling guns... go look it up.

Meanwhile, do not mistake possession for ownership; likewise, do not mistake a purchase for any of the other ways you may possess a gun.

You may find a gun, have it willed or gifted to you, pick it up from a fallen neighbor, borrow one or buy one. More importantly, the wearing of a uniform conveys no magical abilities to anyone holding a gun.

Don't be an idiot. Don't think that a criminal buys a gun from a dealer, or particularly cares about anything you or I might think is proper.

Oh, another thing that has been sort overlooked in all this -- they were Airsoft guns anyway.