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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