December 2nd, 2012

Indiana Federal Judge Rules Deputy had Right to Seize Camera from Home without Warrant 44

By Carlos Miller

Judge Theresa Springmann

 

In a highly disturbing court case out of Indiana, a federal judge ruled this week that a sheriff’s deputy had every right to walk into a person’s home and seize a camera from a citizen, even though the deputy had no warrant nor was the camera used in a commission of a crime.

In fact, Jason Findlay used the camera to protect himself from the deputy just moments earlier in a dispute over property boundaries with his neighbors, one who is a police officer, which makes the decision even more disturbing.

But the deputy argued that he seized it under the “plain view doctrine,” which allows law enforcement officers to seize evidence and contraband without a warrant if it is in plain view during a lawful observation.

And Judge Theresa Lazar Springmann bought that argument, making this case absolutely necessary to be appealed.

It all started in 2009 when Findlay called the Tippecanoe County Sheriff’s Office to report his neighbors had left a field camera on the property where he lived with his grandmother.

The field camera was not the one that was seized, so there are two cameras in this story.

The neighbors, which include Findlay’s uncle, Clark Howey, as well as Howey’s son-in-law, Aaron Lorton, a Lafayette police officer, said they placed the camera on their side of the property to document Findlay trespassing on their property because he had a history of vandalism.

Apparently, there is not a fence dividing the properties nor any obvious boundary markers.

When deputy Jon Lendermon arrived on the scene, Findlay emerged from his grandmother’s home with a video camera and began describing where he had found the camera, giving the deputy some background on the family squabble.

Findlay then walked back inside the house and Lendermon walked back to his patrol car where he called a dispatcher who used a county website to determine the field camera was actually on Howey’s property.

Lendermon, who had previously exchanged emails with Lorton about Findlay, decided he now had enough to arrest Findlay on a trespassing charge, considering he admitted on camera where he had found the camera as well as the fact that his uncle had warned him not to trespass on the property.

But first he had to seize the camera. And that’s where the problems started.

Unfortunately, Findlay allowed Lendermon into the home. Then when Lendermon spotted the camera, which was sitting on a table and still recording, Findlay refused to give it to him.

A struggle ensued and Findlay was arrested on obstructing justice and resisting arrest, charges that were eventually dropped.

Note they didn’t even charge him with trespassing, which was supposedly the reason why they needed the camera.

Here is the narrative from Springmann’s court ruling, which was made Wednesday:

Defendant Lendermon went to the house on the property to recover the video camera. Elizabeth Howey—the homeowner who was 87 years old at the time—and the Plaintiff invited Defendant Lendermon into the house. Defendant Lendermon joined the Plaintiff and Elizabeth Howey in a kitchen which contained a kitchen table and a washing machine. The video camera was sitting on the kitchen table and was still recording. When Defendant Lendermon informed the Plaintiff that he was confiscating the video camera as evidence, the Plaintiff pulled the camera away from Defendant Lendermon, and also pulled the memory card out of the camera. At this point the recording stopped, and the testimony diverges. Undisputedly, the memory chip fell to the floor and ended up under the washing machine. Defendant Lendermon states that the Plaintiff threw the chip to the ground, while the Plaintiff states that he dropped it. In both versions, the Plaintiff then reached down for the chip.

 

Defendant Lendermon states that he then grabbed the Plaintiff’s arm to prevent him from reaching and/or destroying the memory chip. In the Plaintiff’s version, which is mostly corroborated by the testimony of Elizabeth Howey, when the Plaintiff bent down to retrieve the memory chip, Defendant Lendermon responded by grabbing him by the shoulders and tackling him to the ground so that his chest hit the floor. The Plaintiff also states that he landed at least in part on a bottle of laundry detergent. The Plaintiff reported pain from the incident, though when he went to the doctor a few days later on the advice of his attorney, the doctor reported no evidence of laceration, abrasion, bruising, or swelling. (Husain Report, ECF No. 21-5.) The Plaintiff also reported to the doctor that he “d[id]n’t know if he landed flat on the floor or on a bottle of Tide.” (Id.) The Plaintiff introduces evidence, through Elizabeth Howey’s deposition, that Defendant Lendermon stated “I decided I don’t want to have my pictures taken” before he tackled the Plaintiff. (E. Howey Dep. 5:16-17, ECF No. 34-3.) The Plaintiff also introduces Defendant Lendermon’s deposition statement, in which Defendant Lendermon stated that the Plaintiff did not do or say anything that suggested he would destroy the evidence. (Lendermon Dep. 29:25-30:4, July 12, 2011, ECF No. 21-3.) The Defendants note that Elizabeth Howey’s assertion about Defendant Lendermon’s statement that he did not wish to be filmed is unsupported by the video evidence itself. The record does show that Defendant Lendermon made a similar statement at the very beginning of his encounter with the Plaintiff, but not immediately before his seizure of the video camera.

 

Defendant Lendermon arrested the Plaintiff for resisting law enforcement, placing him in handcuffs. Defendant Lendermon later booked the Plaintiff for both resisting law enforcement and obstruction of justice. The briefs present conflicting statements as to whether a warrant was later obtained for the search of the video camera,2 but it is undisputed the Defendant Lendermon seized it as evidence on September 25, 2009, before any warrant was obtained.

 

On July 23, 2010, the deputy prosecuting attorney dismissed all charges against the Plaintiff, stating that dismissal was “in the best interests of the State of Indiana.” (Am. Compl. ¶ 21, ECF No. 14.) The Plaintiff initiated the present suit on December 8, 2010.

There are so many things wrong with Springmann’s ruling, especially the part where they never even charged Findlay with trespassing, but I’m going to leave you with the criticism from a blog called police4aqi.

Criticism: If the statements on the video showed probable cause of a crime, then the policeman should have made an arrest (of whomever was guilty, the plaintiff or his neighbor). Judge Springmann’s opinion apparently concedes that the statements did not give “probable cause,” not in and of themselves, and not even in conjunction with what the policeman knew at the time of the consensual interview. In this case, there was no “probable cause” to believe a crime had been committed, and therefore no probable cause to seize anything. “Plain view” is an exception to the warrant requirement, not the probable cause requirement. This is where Judge Springmann’s 4a analysis falls down badly, and hopefully why her decision will be reversed in this case. The opinion states that there was probable cause to believe that the statements were “linked” to criminal activity, but that is not good enough both because there was no probable cause of any crime, and for the further reason that there was not probable cause to believe plaintiff’s statements on the video would help to establish his guilt of the suspected crime.**

Another criticism: It is clear that plaintiff made this recording of the policeman in order to protect himself from the possibility that he was being interviewed by a dishonest policeman. A rule saying that a policeman, who is suspected (correctly or not) of being dishonest, and who is being recorded for that reason, has the right to seize the video is a bad rule for reasons that are so obvious that an explanation on this point would be insulting.


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  • in4mation

    I guess I’m not feeling it on this one. If you let that cops into the house you’ve basically give them to the right to search for things in plain view. Also the fact that charges were never brought is immaterial. The prosecutor may have looked at the evidence and thought the charge was not proven or they couldn’t win the case.

    • http://www.facebook.com/profile.php?id=1486181184 John Hoog

      LEOs may visually search for illegal things that are in plain view. The camera that deputy Lendermon seized plainly was not contraband, it appears he just did not like being videoed. There was no probably cause to seize the video and therefore his actions were not Constitutional. It is likely the District Attorney recognized the seizure as “Fruit of the Poisonous Tree” and that anything related to it would also be “poisoned” and wishing to protect his successful prosecution rate declined to prosecute. An astute move.

      • in4mation

        Still not feeling it. I don’t expect cops to be legal scholars. They let him in the house … the camera was the reason for the trespass … the cop took it as evidence. Pretty simple. Whether it was worth taking for a small beans matter is worth discussing.

        Carols you should work on your copy. Don’t hide the fact that home owner “invited” the cop in. That’s what gave him the legal right to be there. You make is sound like an illegal entry which is was not. Don’t burry facts to amp the sensationalism.

        • Burgers Allday

          There seems to be confusion. The camera that the policeman (name of Lendermon) forcibly seized was not same as the “field camera” that plaintiff took down from the disputed property zone. The camera (and chip) that the policeman seized was plaintiff’s own camera, not the field camera.

          At least that is my understanding of Judge Springmann’s (less than perfectly clear) opinion.

          • in4mation

            RIght you are. It’s the camera that the cop was greeted with.

        • Difdi

          I don’t expect cops to be legal scholars either. I’m not a legal scholar myself nor am I sworn to uphold the law, yet I know far more about the law than most cops I’ve met do. If they haven’t got the foggiest clue what the law they’ve sworn to defend says, how can they possibly keep their oath?

          Inviting a cop into your house does not give him a free hand to steal anything you own that he thinks looks cool. He can only seize property under the plain view rule that is itself illegal; For example, if he sees a baggie of marijuana on the floor, he can seize that without a warrant. If he catches someone using a camera to take up-skirt snapshots, he can seize the camera as part of the arrest of the pervert. If a cop has probable cause to believe that if he waits to get a warrant that evidence will be destroyed, he can seize that evidence without a warrant — but that would not apply to a video someone has taken to protect himself from police abuse of authority, since deleting the video would put the wary individual at the mercy of a potential bad cop.

          But he can’t just arbitrarily help himself to anything he wants just because he can see it. There’s a word for that: Burglary.

          • Jefft90

            The camera by itself is not evidence, the photos inside are. Because he is investigating up-skirting he can seize the camera providing it is in plain view and he has probable cause to suspect that was the camera used or you match the description of the suspect. The officer cannot open it to look at the pictures without a warrant.

            There are a lot of cases involving drug smuggling in luggage
            and computers with porn or drug activity that would easily apply to cameras.

          • Difdi

            There is a key difference when it comes to drug and porn smuggling cases. Those are almost universally a matter of customs and border enforcement, which operates under different laws and regulations than criminal investigations do. In any event, a sheriff’s deputy lacks the authority of a federal customs agent.
            A police officer investigating a crime such as up-skirt photography can indeed seize a camera that was used in the crime, because it was the tool used to commit that crime, and the seizure happens incidentally to the arrest. But that’s not what happened here. A camera cannot be used to cut a wire fence to allow access, nor can it be the tool that permits someone to walk across uneven ground. If anything, operating a camera while trespassing would hamper the act, not enable it. The crimes the camera’s owner was arrested on were obstructing justice and resisting arrest, neither of which have anything to do with cameras of any kind, therefore an incidental-to-arrest seizure does not apply. Even if the arrest had been for trespassing, the exigent circumstances claim would only apply if the arrested individual could access the camera to delete it, which he would not be able to do in custody. The proper procedure would be to leave the camera in place and seek a warrant before the guy is bailed out or otherwise released.
            Just because you’re being arrested for something, doesn’t give the police a free pass to steal your XBox, your camera, your wallet or your porn collection.

          • Jefft90

            “In that conversation, the Plaintiff showed Defendant Lendermon where he had recovered the field camera, told Defendant Lendermon his understanding of the propertylines, and stated that he had been previously warned by his uncle, Clark Howey,against trespassing on his property. It is undisputed that the video recording
            made by the Plaintiff contains all of these factual admissions by the
            Plaintiff.”

            The camera was not used in the crime but essential contains
            a confession by the plaintiff . That was why the officer/defendant seized the
            camera.

          • Difdi

            In that case I do hope for the deputy’s sake he got a warrant before viewing the contents of the camera, because otherwise that confession would be inadmissible.

          • ExCop-LawStudent

            It depends on the state law, but generally getting a warrant to view the contents would be the safe way to go.

          • Jefft90

            If you read the ruling there is some dispute whether the police obtained a warrant prior to viewing which is the reason I believe the case for trespassing /conversion was dropped. Also, the resisting seemed like a sure bet and a more serious charge.

          • steveo

            I disagree. if you allow a leo into your home you are consenting to a full house search. Never ever let a leo into your home voluntarily. Make them affect entry by violent means then that can’t be disputed in court. Keep a camera outside your door and a 360 view camera in your home so that you can record leo activity inside your home. When leos think that they are in a tight spot, they will lie about everything and anything. Record, record record.

            I

  • http://www.facebook.com/profile.php?id=1571410745 Keith Turrill

    I will go a step further because I have had cops at the door many times. Not only should you never let a cop in, if you go outside to talk to him always lock the the door behind you. That way the cop can not accidentally go in. It also helps to have a door chain. If the cop pushes his way in without a warrant or exigent circumstances, the broken chain will show physical damage.

    • Difdi

      When normal people “accidentally” go into a house, it’s a crime that results in criminal charges.

      When a police officer who is sworn to uphold the law unlawfully enters, it’s an accident without intent or volition, totally beyond the officer’s control.

      Riiiight. That’s not what the law says.

    • Haeshu

      How about when a cop knocks on the door, you simply don’t answer. No need to go outside, no need to lock it behind you and, most importantly, no need to talk to them…

  • http://www.facebook.com/profile.php?id=1571410745 Keith Turrill

    This is the same part of Indiana that was playing hide the sausage with the archbishop of Indianapolis who was trying to lock up Alfred Kinsey in the 1950′s. Land of the troglodytes.

  • indylivin317

    A few things. First off, the LEO was invited into the home by the owner, so the warrant issue is moot. Next, cameras are indeed going to be considered as evidence. I’m not sure what the eventual ruling will be, but I don’t see the courts just saying nothing can be done about a piece of evidence just because it happens to be a video recorder or camera. The better way to have handled this would be to have ordered the occupants out of the home and secured the scene. If the guy tried to take the evidence, which was in plain view, then arrest him on obstruction and leave the camera where it was. The talk to a judge and obtain a warrant for the camera/recorder.

    What we are asking here is for cameras and recorders to be given some sort of special status when they include documented evidence of a criminal act, be it involving the owner, an unrelated third party, or the police. The high court needs to make a ruling on this one way or another. It is important because more and more people are using their cell phone cameras, and more and more people are dropping land lines and only using their cell phone as a means of communication. At the same time, what happens when someone has factual proof of a rape, mugging, etc., and refuses to turn over this information when it is known they have it? What happens if the evidence is purposely deleted for whatever purpose?

    The law is stated as:

    ‘Seizure of property without a warrant is justified
    if the seizure satisfies the probable cause standard of the Fourth
    Amendment. See Soldal v. Cook Cnty., Ill., 506 U.S. 56,
    66 (1992). Under the plain view doctrine, warrantless seizure of an
    item by a law enforcement officer is justified if: “(1) the officer was
    lawfully present in the place from where he viewed the item, (2) the
    item was in plain view, and (3) its incriminating nature was
    `immediately apparent.’”

    The incriminating nature of an item is immediately
    apparent where an officer has “probable cause to believe that the item
    is linked to criminal activity.” United States v. Bruce, 109 F.3d 323, 328 (7th Cir. 1997); see also Schmidt,
    2012 WL 5392623, at *4 (“`For the incriminating nature to be
    immediately apparent, the officer must have probable cause to believe
    that the item is contraband or otherwise linked to criminal activity.’”
    (quoting Cellitti, 387 F.3d at 624)). An item which is “not
    inherently incriminating” may be seized under the plain view doctrine
    when it “assumes an incriminating or suspicious nature in connection
    with the crime under investigation.” United States v. Van Dreel, 155 F.3d 902,
    905 (7th Cir. 1998). So long as the officer did not violate the Fourth
    Amendment in getting to the spot from which the evidence is in plain
    view, “it does not matter that the officer who makes the observation may
    have gone to the spot from which the evidence was seen with the hope of
    being able to view and seize the evidence.”

    Here in Indiana, our trespass law is an A misdemeanor. There are a few ways to get charged for criminal trespass, one of which is where an owner or agent of the property gives a verbal warning to a person not to enter. The court ruling states that the guy admitted on his video that he had been warned by the owner or agent, and that he did go upon the property. As far as getting arrested outright, you can’t do that in Indiana. Indiana has about ten or so misdemeanor laws where officers can make outright arrest for misdemeanors without having witnessed them. Criminal trespassing isn’t one of those crimes. The officer witnessed the obstruction and resisting, so he charged the guy with those crimes. He can’t make an outright on the criminal trespassing charge. In some counties, officers will go ahead and file the paperwork for non-witnessed misdemeanors along with the witnessed misdemeanors. However, each county is different, and defense attorneys in one county might have luck getting those initial charges dismissed, meaning the prosecutor’s office will tell county LEOs how they should process these non-witnessed misdemeanors even when they are making a custodial arrest.

    As far as the charges being dropped, I don’t know why that is. There are many reasons why a deputy prosecutor would drop the charges. The “official” reason is irrelevant to me, as I know they have to pick some reason to have the charges dismissed, I would like to know the behind the scenes reason why they choose not to go forward.

    A few specific issues to this case:

    -The person recording and who owned/had possession of the device was the suspect in a criminal investigation.

    -The recording is said to absolutely had evidence of crime having occurred, and an admission by the suspect of having been told by an agent/owner to stay off the property.

    -Since the suspect had control of evidence of his probable guilt, there is a fear the evidence would be destroyed. This isn’t like an unattached third party who has no reason not to assist law enforcement within a reasonable time frame (ie: Can you e-mail me the video? Can you come down to the police department so we can download the video? Can you download it for us and burn it to a disc and bring it to us?).

    -Worries about destruction are heightened given that the suspect removed the data card, offering to give up the camera after doing so.

    -The deputy didn’t view the video until after a warrant was obtained.

    One last thing: Is the field camera and the camera used for recording one in the same? Or are we talking about two different cameras?

    • Carlos_Miller

      Cameras are not evidence unless they are used in a commission of a crime such as upskirting or child pornography.

      • indylivin317

        The US Supreme Court has ruled as such? If so, can you give us the case? Face it, until they rule, everything else is just the ruling of some other federal or state judge. I don’t see how this can be any different. With underage porn, the evidence is the image of the underage person. With voyeurism, again, the image is the evidence. Is a taped confession not evidence in a criminal trial? Your video proved your innocence, but if it had proved your guilt, why does it change it from evidence to non-evidence? This guy made a taped confession. I have my suspicions on this case, and what it really was about. The fact is, he made two confessions on that recording. That he had been given the denial of entry and had in fact entered. That is like saying audio recordings that police officers make are inadmissible in court as they aren’t evidence. I’ve seen lots of police interrogation rooms. All have cameras (or should). How is the video and audio production of those cameras not evidence? How is the data those cameras produce not evidence? They are evidence, that is why video and audio police interrogation data is entered into evidence at trials.

        • Carlos_Miller

          It has never made it to the supreme court but case law from around the country states that police need to subpoena before they can seize your camera as evidence unless they fear you are going to destroy that evidence or disappear with it.

          And that’s usually in felony crimes. This is a measly misdemeanor.

          And the deputy knew who he was and where he lives, so there was no fear of him disappearing with the evidence.

          • Jefft90

            Indylivin317’s computer analogy is probably the one that
            would apply in this case. The courts
            have ruled that computers are nothing more than containers. Police can seize a container under plain view
            but not search it without a warrant. In
            some cases, even if they find evidence of a different crime than on the warrant
            they must get a new warrant to pursue the search of the newly discovered crime this
            could be the reason that the trespassing case was dropped if the police looked
            at the film without a warrant.

          • ExCop-LawStudent

            Indy is correct on this one.

            Police do need to subpoena the video (or film, etc) under most conditions. This is based on 43 USC 2000aa. This is designed to protect journalists for the most part, but also covers anyone who intends to publish the material, such as in a book, a videogame, etc. In the cases of cameras used by third parties that intend to publish the material, a subpoena is required, and violation of the statute carries civil liability on its own in addition to any civil rights claims under Sec. 1983 or other law.

            There is an exception if the person that the camera or video evidence is seized from is the subject of the investigation, i.e., the suspect. The judge’s opinion noted that the officer had probable cause to arrest the individual on several offenses, and that there was clear evidence that the video contained evidence of that crime. It thus falls into the exception to the subpoena requirement.

            There may be state laws that cover the same matter, but most either follow the federal law, or are designed for media journalists, which would not apply here.

    • Difdi

      The necessary warrant is called a search & seizure warrant for a reason. Being invited into the house removed the legal shield against the search aspect, at least when it came to objects in plain view. But the officer also needed a warrant to seize property unless it was obviously illegal or the officer had probable cause to believe it had been used directly as a tool to commit a crime. Last time I checked, cameras are not contraband. Trespassing while in possession of underwear does not make that underwear a tool of the crime, nor does carrying a camera with you while trespassing make the camera an illicit tool.

      An officer investigating you for jaywalking cannot help himself to your computer just because he happens to see it while standing in your foyer.

  • Guest

    How about when a cop knocks on the door, you simply don’t answer. No need to go outside, no need to lock it behind you and, most importantly, no need to talk to them.

    • Difdi

      And then the cop kicks the door in because he “smelled marijuana”.

  • Burgers Allday

    Here is another civil case that Judge Springmann decided in favor of the police last Wednesday:

    http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FDCO%2020121129C73.xml&docbase=CSLWAR3-2007-CURR

    It doesn’t involve photography, but does involve police taking advantage of a motorist who was understandably confused by the law. When you read these two cases together, it is pretty easy to see the lay of the land with regard to Judge Springmann’s jurisprudence.

    • ExCop-LawStudent

      I don’t see the problem with this opinion. The plaintiff doesn’t appear to provide any evidence of constitutional violations, and the statements of material differences are all conclusory. There is nothing for the judge to use to deny the motion for summary judgment.

      • Burgers Allday

        Warrantless seizures are presumptively unreasonable. Warrantless seizures are presumptively 4a violations.

        The policeman had the affirmative burden to establish that: (i) probable cause of a crime existed; and (ii) probable cause to believe that what was on the recording would be of evidentiary value in prosecuting that crime.

        The judge thought that the policeman established probable cause. I disagree. While I could explain my disagreement at length, the “nutshell version” is that in good faith property line disputes, neither party is a criminal trespasser under Indiana law. When there is a dispute over a property line, that is supposed to be settled in the civil courts, not by the police. That is especially true when an off-duty policeman places a “field camera” in the disputed zone as a favor to his father-in-law, as happened here. The police are not going to act impartially in this sort of dispute, which is why Indiana trespassing law (and the trespassing law of pretty much everywhere else) has been tailored to keep the police out of these sorts of disputes. I understand that most people don’t understand this, but Judge Springmann should. The prosecutor sure did.

        • Jefft90

          1.
          “The Plaintiff’s statements about where he had found the field camera, his
          understanding of the property lines, and his previous warnings from Howey
          against trespassing were all potentially relevant to Defendant Lendermon’s
          investigation into the crimes of trespass and/or conversion.”

          2.
          In the car, Defendant Lendermon consulted by telephone with Defendant Huber and also the Sheriff’s Department dispatch officer, who advised Defendant Lendermon that, according to the county’s GIS website, the spot where the field camera had been recovered was indeed on Clark Howey’s side of the property line.Defendant Lendermon and Defendant Huber therefore agreed that Defendant Lendermon should confiscate as evidence the video camera on which the Plaintiff had just recorded his statements about where he recovered the field camera and his statements about previous warnings against trespassing given to him by Clark Howey.

          3.
          An item which is “not inherently incriminating” may be seized under the
          plain view doctrine when it “assumes an incriminating or suspicious nature
          in connection with the crime under investigation.” United States v. Van
          Dreel, 155 F.3d 902, 905 (7th Cir. 1998). So long as the officer did not
          violate the Fourth Amendment in getting to the spot from which the evidence is
          in plain view, “it does not matter that the officer who makes the
          observation may have gone to the spot from which the evidence was seen with the hope of being able to view and seize the evidence.” Kentucky v. King,
          131 S.Ct. 1849, 1858 (2011). A “practical, nontechnical probability that
          incriminating evidence is involved is all that is required” for seizure
          under the plain view doctrine. Texas v. Brown, 460 U.S. 730, 742 (1983)

          • Burgers Allday

            That is correct, but does not go far enough. Indiana trespass law requires that the plaintiff goes knowingly and intentionally onto another’s property. There was not probable cause that plaintiff knew the field camera was on the property of another. Hence, no probable cause that a crime was committed.

            Furthermore, the video indicated that plaintiff believed that the camera was on his grandmother’s property. That is not evidence of a crime. that is evidence that a crime was NOT committed. Again, beause the trespess statute requires the entry to be “knowing and intentional.”

            There was probable cause to believe that the video recording was evidence of an entry, but that is not the same as probable cause to believe that a crime was committed.

            Don’t they teach mens rea anymore, or have the prosecutors completely taken over the academy?

          • Jefft90

            Your argument falls apart by the plaintiffs own depsoition.

            When asked at his deposition whether Defendant Lendermon had a reason for taking the videocamera, the Plaintiff responded: “Because it contained evidence of other crimes.” (Findlay Dep. 62:18-19, July 13, 2011, ECF No. 21-2.) And once
            again, although Defendant Lendermon did not actually arrest the Plaintiff for
            this offense, the existence of probable cause defeats the Plaintiff’s false
            arrest claim.

            Second the law read

            not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other
            person or that person’s agent;

            That OR means a lot.

            Now what was that about reading skills? :)

            Now you can argue that the plaintiff believed he was innocent of trespass
            but that belief does not let you stop an officer from collecting evidence. Furthermore, the video tape could have also been used to prove that Uncle Howey and Off Duty Son in law had trespassed when placing the field camera. Had the plaintiff been correct in his belief that the field camera was on his
            Grandmothers property his contemporaneous description of its location would
            have helped convict his Uncle of trespass.

          • Burgers Allday

            There was no probable cause that anybody committed a crime. there was no evidence that anybody intentionally entered the property of another. There was no evidence that anybody knowingly entered the property of another. The videotape recording was completely irrelevant to establish criminal intention on Officer Lorton’s part, and did nothing to establish the requisite state of mind on plaintiff’s part. As I mentioned above, the video recording was inconsistent with the existence of a requisite state of mind on plaintiff’s part because they show that he intended to remain on his grandmother’s property.

            There simply nothing to establish probable cause with respect to the statutory mens rea element of the crime.

            The deposition testimony, whatever it was, was completely irrelevant to whether Lendermon had pc, and, again as stated above, he did not have pc because he had no reason to believe that either side intentionally entered property of another.

          • Jefft90

            ” Upon arrival at the property, Defendant Lendermon spoke to Clark Howey who informed Defendant Lendermon that he and Lorton had placed Lorton’s field camera on his property to ascertain who had been trespassing. Clark Howey suspected the Plaintiff of the trespassing.”

            Uncle Howey accused plaintiff of Trespass.
            The defendant was gathering evidence of a possible tresspass, State of mind would be up to a Judge or jury for the trespass charge.

          • Burgers Allday

            State of mind is an element of this crime. Probable cause needs to be present on both elements of the crime, entry and state of mind. Not only was there no evidence, prior to the consensual interview, that plaintiff had a sufficiently guilty state of mind, the interview itself (and the recording of the interview) effectively erased any suspicion that plaintiff had a guilty state of mind.

          • Jefft90

            State of Mind is the element of many crimes, criminal mischiel, harrasment, hell even violating a court order. So what you are saying is if I believe or even say I believe that I am not stalking, vandalizing or tresspassing then there is no PC for arresting me even if the officer sees me on the property or committing the acts.

          • Burgers Allday

            Depends upon the circumstances of the trespass. In this case we have good faith entry onto disputed property. That is not a circumstance appropriate for police involvement and it is not probable cause of a crime. But, I already said that in the posts above.

          • Jefft90

            How can you argue “Good Faith Entry” based on the history?

            “This was not
            the first time Defendant Lendermon had heard about the Plaintiff. The
            Plaintiff’s uncle, Clark Howey, lived adjacent to the property, and had
            previously complained that the Plaintiff was trespassing on his property and
            was responsible for acts of vandalism. Further, Clark Howey’s son-in-law, Aaron
            Lorton, a City of Lafayette Police Officer, had previously reported violence
            and threats by the Plaintiff against members of his family. It is undisputed
            that prior to September 25, 2009, Defendant Lendermon had received emails from
            Lorton complaining about threats, violent behavior, trespassing, and vandalism
            by the Plaintiff. (See Brown Aff. ¶ 4 & Exs. 1-4, ECF No. 21-61;
            Lendermon Dep. 4:21-6:6, June 16, 2010.) Lorton had specifically requested
            additional Sheriff’s Department patrols near his residence because he saw the
            Plaintiff as a threat and feared for the safety of his family”

            Defendant Lendermon’s knowledge of multiple trespass claims by Clark Howey—an apparently credible witness, and Clark Howey’s specific assertion that the Plaintiff was trespassing, the Court finds that Defendant Lendermon had probable cause to believe the Plaintiff had committed the offense of trespass. See Mustafa, 442 F.3d at 544
            (“Once a reasonably credible witness informs an officer that a suspect has
            committed a crime, the police have probable cause to arrest the
            suspect.”).

            The Plaintiff argues that he could not have committed the crime of trespass because, under his version of the facts, he was not trespassing. The Court reiterates
            that the issue is not whether the Plaintiff could actually be convicted of
            trespass, but rather whether Defendant Lendermon had probable cause to believe
            the Plaintiff had committed the crime of trespass. The Court finds that he did. Indeed, the Plaintiff himself appears to have believed the video camera contained evidence. When asked at his deposition whether Defendant Lendermon had a reason for taking the video camera, the
            Plaintiff responded: “Because it contained evidence of other crimes.”

            (Findlay Dep. 62:18-19, July 13, 2011, ECF No. 21-2.) And once again, although
            Defendant Lendermon did not actually arrest the Plaintiff for this offense, the
            existence of probable cause defeats the Plaintiff’s false arrest claim.

            Once you are told not to enter someone else property you can’t
            use rescuing a lost surveillance camera put there to capture evidence of your trespassing/vandalism as an excuse.

          • Jefft90

            Ind. Code §
            35-43-2-2(a)(1). The belief that one has a right to be on the property of
            another will defeat the mens rea requirement of the criminal trespass statute
            if it has a fair and reasonable foundation. It is for the trier of fact to
            determine whether the defendant believed that she had a right to be on the
            property of another and whether that belief had a fair and reasonable
            foundation.
            But, I already said that in the posts above.

        • ExCop-LawStudent

          You do realize that my comment was directed at the OWI case you linked to? It had nothing to do with the camera seizure, although you”re incorrect on that issue also.

          • Burgers Allday

            If plaintiff was confused about what he was refusing consent to do (and it appers that he was), and the policeman knows that he is confused about what he is confusing consent to (and it appears that he did), then there is no probable cause of a refusal crime.

            The Judge Springmann says that explaining is good enough. It is not. The suspect needs to actually understand what he is refusing consent to.

            It looks to me that what plaintiff was not consenting to was being handcuffed. And, there is a material issue of fact as to whether the policeman did, in fact, have the right to handcuff him. Some detainments give police the right to handcuff and others do not. The only way to preserve rights on this issue is for the suspect to make it clear that he objects to the handcuffing, and it appears that that is all the suspect did in the OWI case. The policeman characterizes complaints about the handcuffing as refusal to consent, and that is the sleight of hand going on in this case.

            Judge Springmann ignores these issues in her opinion. I detect a pro-police bias.

          • ExCop-LawStudent

            The problem with the plaintiff’s complaint is that all the allegations were conclusory, with no supporting evidence. In other words, the plaintiff alleged violations without any supporting evidence–which mandates summary judgment for the defendant.

            For example, he alleged that the stop was made due to ticket quotas but provided no information to support the allegation. He alleges a conspiracy, but provided no information on how the conspiracy was entered into or executed.

            It takes more than bare allegations, there has to be evidence, and what evidence there was supported the officers. You can’t just say it’s not fair, you have to prove it, and he did not meet the burden of proof.

  • Tijuana Joe

    Boy, cops nowadays sure like to seize cameras. I remember a time when they used
    to capture bank robbers and such.

  • BurnItDown

    Judges and Officers found to be complicit in the destruction of society should be dragged into the street and shot in the face as an example.

    They’re supposed to the ones standing on the moral high ground judging us for our perceived transgressions.

    Break the Blue Line.

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