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Violating The Fourth Amendment To Break Up An Underage Drinking Party Means No Qualified Immunity

from the this-backyardigans-reboot-blows dept

How far would a cop go to break up an underage drinking party? Far enough to get sued in federal court. (h/t Peter Bonilla)

Responding to a tip from a snitch app ("Tip411"), Mequon (WI) police officers rolled up on a house supposedly containing an underage drinking party. The officers first noticed four cars in the driveway and one parked in the street. Hardly indicative of a rager, but the officers had an anonymous tip and apparently nothing better to do.

Officer Kristin Toryfter rang the doorbell but received no answer. She called the phone numbers of two of the house's residents -- John and Todd Reardon -- but was similarly rebuffed. What the officers could see from the driveway was "several young people" peeking out at them and various doors and windows closing.

At some point, even more officers showed up, including shift supervisor Matthew Schossow. Schossow went around back to "secure the perimeter." Since fleeing teens are a constant threat to law enforcement, Officer Schossow decided to go traipsing across the curtilage to get a look inside the house. Peering through the blinds, Schossow saw -- and let's go to the decision [PDF] for this one...

a can of Pabst Blue Ribbon on the end-table, and an open bottle of vodka on the floor, along with other non-alcoholic beverages…

Again, hardly indicative a party was underway (much less one involving underage drinkers), especially since Schossow's unconstitutional peek didn't catch any teens drinking alcohol. Using this complete dearth of information (and after taking an illegal peek herself), Officer Toryfter applied for a search warrant. The warrant was an exercise in carefully crafted, but ultimately creative, writing.

Toryfter attested that there were items to be searched in the house that included alcoholic beverages and persons under the age of 21, both of which were potentially evidence of a violation of Wis. Stat. § 125 et seq., which prohibits furnishing alcohol to underaged persons. She also stated that there was a party at the house “which possibly included guests under the age of 21 consuming intoxicants or illegal drugs,” that there were “numerous vehicles” outside the home, that she had “observed intoxicants within the premises, having seen them. . .through the window. . .of the residence,” and that “young people scatter[ed] or hid[] when it appeared that the officers had been noticed or recognized.” (Docket #27-2 at 2). At no point did Toryfter represent that she saw the young people consuming intoxicants inside the premise.

This was [sigh] signed by a local judge at his home and, roughly one-and-a-half hours after first showing up at the house, officers entered the home. The younger of the two Reardons was charged with violating the city's "social host" ordinance, which prohibits gatherings where underage drinking will occur. Those charges were dropped. As the Journal Sentinel reports (but WITHOUT INCLUDING A LINK TO THE DECISION), eight of the twelve guests seized by officers passed breathalyzers, which again suggests this wasn't a drinking party so much as it was a gathering where some people chose to drink.

The federal judge says the invalid warrant isn't at issue here. Obtaining a bad warrant isn't a Fourth Amendment violation. Executing one is. Here, the larger problem is Officer Schossow's decision to enter the backyard and peek through the back window of the house. That was a violation, and it set up the warrant for failure.

The walkway from which Defendants claim they saw the contraband was approximately ten feet from the home, putting it well within an area where “privacy expectations are most heightened.” French, 291 F.3d at 951 (noting that areas within twenty feet of the home generally have higher expectations of privacy). The walkway itself was not enclosed, but it was secluded, flanked by shrubs and trees, and not visible from the street or even the front of the house. Rather, it snaked closely around the back of the house, linking the very end of a lengthy driveway to the patio, which was located on the other side of the yard, and which could not be seen from the start of the walkway. See (Docket #28-1 at 1). This was not an open-to-thepublic walkway that lead to structures in plain view of the driveway. See French, 291 F.3d at 953. Nor was any of the activity occurring “in plain view of the public way.” United States v. Contreras, 820 F.3d 255, 262 (7th Cir. 2016). Nor did this walkway clearly lead to a door that would be open to visitors or delivery people.

Both Toryfter and Schossow said they had every right to be in the backyard (and, apparently, peeking through windows) because the "perimeter" need to be "secured." Wrong, says the court. There is no precedent that agrees with the officers' arguments and no court in the land would be willing to concede this argument, at least not as presented here.

Defendants do not, however, cite any cases in support of their broad contention that legitimate law enforcement objectives are an exception to the curtilage rule. (Docket #33 at 7–8). In United States v. Butler, this Court noted that officers may have had a “legitimate reason” to enter the common area backyard of a duplex—where the defendant did not have a reasonable expectation of privacy—in order to conduct a “knock and talk” procedure as part of a criminal investigation. 2007 WL 2220260, at *8 (E.D. Wis. Aug. 1, 2007). That case did not, as Defendants suggest, stand for the proposition that law enforcement officers may intrude upon a home or curtilage anytime they have a “legitimate law enforcement objective.”

Similarly, in United States v. Davis, which is the magistrate’s report and recommendation that this Court adopted in Butler, the magistrate determined there was no Fourth Amendment violation because there was no evidence that the backyard was not open to visitors or delivery people. 2007 WL 2220261, at *8 (E.D. Wis. April 16, 2007). After drawing this conclusion, the Davis court then speculated that the police’s presence in the backyard was appropriate because it was related to protecting officers conducting the “knock and talk” occurring around front.

Like this Court’s order in Butler, the Davis report and recommendation did not cite any precedential caselaw in support of the contention that law enforcement officers may intrude upon a home anytime they have a “legitimate law enforcement objective.” Nor could it: such a holding would gut the Fourth Amendment of its protections, and result in routine circumvention of the warrant process.

Since the court isn't going to gut the Fourth Amendment, the officers lose their qualified immunity.

In light of these well-settled principles and the Supreme Court’s instruction in Jardines on the boundaries of the “knock and talk” investigative tactic, a reasonable police officer in 2015 would know that the broad catch-call of “legitimate law enforcement objective” is not an exception to the Fourth Amendment’s curtilage rule, particularly when the law enforcement objective is to catch drunk teenagers running home.

As to the warrant, the court says it's terrible. The warrant was predicted on a number of faulty assertions. First, there was the tip that prompted officers to check out the house in the first place. There's no evidence the tip or the tipster was reliable. Officers saw five cars, which hardly indicates a party was taking place. Residents not answering their doors on Halloween is hardly an uncommon thing when people are wandering from house-to-house demanding candy. And, finally, officers observed nothing that indicated underage drinking until they violated the Fourth Amendment by peeking in the back window. Even then, all they saw was a couple of containers of alcohol. The only thing that might have tied what the officers saw to a perceived criminal violation was the thing they couldn't have seen without walking across the Fourth Amendment on their way to the back window.

Both officers are now on the hook for Constitutional violations.

[T]he Court finds that Toryfter and Schossow violated Plaintiffs’ Fourth Amendment right to be free from unreasonable searches in the curtilage. Flowing from this, Toryfter also violated Plaintiffs’ Fourth Amendment rights when she obtained an invalid warrant on the basis of the unlawful curtilage search.

It seems no crime is too small for Fourth Amendment violations. And maybe that's where they happen most. After all, how often are misdemeanor charges going to result in federal civil rights lawsuits? At least this one did, as it adds to the ever-growing impression that law enforcement very often views the Constitution as damage and routes around it. And in a distressing number of cases, they get away with it. But in this one they didn't. Party on, Wisconsonians.

Filed Under: 4th amendment, kristin toryfter, matthew schossow, mequon, qualified immunity, underage drinking, wisconsin


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  • icon
    Stephen T. Stone (profile), 8 Oct 2019 @ 8:35pm

    It’s just like my teacher told me:

    Every time a cop loses qualified immunity, an angel throws a raging kegger.

    reply to this | link to this | view in chronology ]

    • identicon
      norahc, 9 Oct 2019 @ 4:51am

      Re: It’s just like my teacher told me:

      But even angels know better than to drink PBR.

      How are we to protect the children from the unspeakable horror that is Pabst if we don't allow the cops to completely disregard the Constitution?

      Oh yeah...that's what parents are supposed to be doing, not the cops.

      reply to this | link to this | view in chronology ]

      • identicon
        Thomas, 10 Oct 2019 @ 4:54pm

        Re: Re: It’s just like my teacher told me:

        How nice, a beer snob.

        I'm from Mequon, and I drink Blue Ribbob at times.

        How about you swill your porter and shut up.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Oct 2019 @ 11:43am

          Re: Re: Re: It’s just like my teacher told me:

          How about you look up the definition of humor instead of telling someone else to shut up?

          My guess is norahc would have made the same comment no matter what brand of beer was involved, so your brand defending butthurt is laughable.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2019 @ 12:49pm

      Re: It’s just like my teacher told me:

      And cops go shopping for a courtroom with a sympathetic ear!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Oct 2019 @ 7:55pm

        Re: Re: It’s just like my teacher told me:

        Seems more like a sympathetic living room. Perhaps a den, or a study. Or maybe it was just the foyer.

        reply to this | link to this | view in chronology ]

  • identicon
    Paul, 8 Oct 2019 @ 8:56pm

    To much

    Lawless cops and the United prison states.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 8 Oct 2019 @ 10:37pm

    I'm shocked.

    I'm shocked the judge ruled on the constitutional aspect of this case. It seems like they usually find some other way to dismiss the case and kick the constitutional question down the road. I'm also shocked when a judge is willing to hold officers accountable. Says something about our current system.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2019 @ 5:33am

      Re: I'm shocked.

      Total wishful thinking on my part...

      But it could be that cops in general have had such a flagrant disregard for the public treating citizens like the 'enemy' and their dogs as targets Judges may be deciding it's time to tighten the lease on the unruly officers.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 9 Oct 2019 @ 8:38am

      Re: I'm shocked.

      When it comes to qualified immunity, the only way to affirm or deny it is after considering whether or not there was a clear violation of constitutional rights. In other words, in any case where qualified immunity is at issue, the judge has to decide constitutional issues one way or the other. The kicking-the-can comes as to 1) whether that right was clearly established, 2) when there are issues regarding jurisdiction (which doesn’t typically come up when dealing with qualified immunity), or 3) the case doesn’t involve qualified immunity.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Oct 2019 @ 11:21am

        Re: Re: I'm shocked.

        Why is being above the law now a constitutional issue? There is nothing in the constitution that address the demands of some to be considered above the law. Their reasoning defies logic and boils down to a simple "because I'm special".

        Qualified immunity, as applied today, is complete bullshit and has no place in modern society.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Oct 2019 @ 12:57pm

          Re: Re: Re: I'm shocked.

          B.B. King was special and is very missed. Carusong cops out causing trouble, not special.

          reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 12 Oct 2019 @ 12:22am

          Re: Re: Re: I'm shocked.

          I don’t disagree, but I think you’re confusing the issue. Qualified immunity isn’t a constitutional issue per se. It’s just that, when alleging a federal tort against an officer, court precedents state that the officer is immune to suit unless the complaint alleges a violation of a constitutional right that was clear at the time of the offense.

          reply to this | link to this | view in chronology ]

  • icon
    charliebrown (profile), 9 Oct 2019 @ 12:03am

    Correction

    The shift supervisor was obviously named Matthew Shitshow. If he wasn't before, he is now!

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 9 Oct 2019 @ 2:01am

    I think that should be Wisconsinites.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2019 @ 3:05am

    ...Yeah, when you have a local judge fucking the warrant and cops screwing over the 4th amendment, all over a non-lethal offense, I'd say we've reached peak "Fuck you because we can" right here. What's even more amazing is that the police got their asses kicked not for getting the shitty warrant... but because they were caught using it? Were the cops that scared of a higher authority telling them "No of course you can't get your power trip jollies off, what are you nuts?" that they had to pull this sort of mental gymnastics?

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 9 Oct 2019 @ 8:44am

      Re:

      If cops are able to obtain a bad warrant but never use it (especially since warrants typically have some sort of time limit), then are any rights actually violated there? I guess you could argue perjury if the affidavit used to obtain the warrant contains a lie, or even a material omission, but other than that, there’s nothing illegal or harmful about getting a warrant that never gets used.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Oct 2019 @ 7:40pm

        Re: Re:

        there’s nothing illegal or harmful about getting a warrant that never gets used

        The same can be said about plenty of laws that permit government surveillance or knocking in your doors. "If you pinky promise not to use it we're okay if you have it" is a little dangerously close to more nonsense that law enforcement can get away with for my taste.

        reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 9 Oct 2019 @ 5:44am

    Hmm - not so sure

    This doesn't sound like a "win" for the "small guy". The guy only got a citation, and not for something major. No being bounced off the hood of the cop car or the driveway, no "contempt of cop" charges, no strong-arming at all. Five cars in front of a single house IS excessive, and four of the twelve partiers HAD been drinking alcohol.

    This sounds more like someone with money or connections... possibly both. Remember, there's two laws in this country: one for peons, and one for "real" people.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2019 @ 6:22am

      Re: Hmm - not so sure

      Anything that can be used later as caselaw to restrain cops from pissing on peoples rights regularly is a small win.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 9 Oct 2019 @ 8:45am

      Re: Hmm - not so sure

      If they’re allowed to infringe on rights over something minor, that can be used to infringe on rights for something major.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2019 @ 8:18am

    eight of the twelve guests seized by officers passed breathalyzers, which again suggests this wasn't a drinking party so much as it was a gathering where some people chose to drink.

    Note that 'passed' has an unusual meaning here. Normally one only 'fails' a breathalyzer test when drunk, and it's certainly possible to attend a drinking party and drink without getting so drunk as to fail. What the article says is that the eight didn't have any alcohol on their breath.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2019 @ 8:23am

    Looking into someone's back window sounds like something a Peeping Tom would do. Don't we have laws against that? The police should be charged with that along with trespassing. I hope they get sued for a whole large pile of money.

    reply to this | link to this | view in chronology ]

    • identicon
      Annonymouse, 9 Oct 2019 @ 8:55am

      Re:

      You should know by now that you are the one paying out when an officer gets sued.

      Besides these yahoos (tm) need to be in residence breaking big rocks into small rocks at the bottom of a deep hole. Coal mining sounds good.

      reply to this | link to this | view in chronology ]

      • icon
        R.H. (profile), 9 Oct 2019 @ 6:59pm

        Re: Re:

        Not in this case, they lost qualified immunity. That means that they can be directly sued for their actions here.

        reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 11 Oct 2019 @ 2:54pm

          Re: Re: Re:

          Um, that’s not how a Qualified Immunity defense works.

          If QI is successfully invoked by the cops, the lawsuit gets thrown in the trash. Losing their QI claim doesn’t make the individual officers able to be sued, they’re still covered by their department’s lawsuit insurance, and their defense is covered by their department’s lawyers.

          If they lose, they might not have to pay a penny if the department insists they followed policy. And if they settle instead of going all the way to a verdict, it’s the department that pays it.

          The only time a police department ever throws officers under the bus that way is when the officers have violated department policy and sometimes not even then.

          Most of the time, the only officers that get that treatment are the ones most people would consider to be good cops — the ones who deescalate force, hold fellow officers accountable, obey he law, etc.

          reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 9 Oct 2019 @ 9:20am

    Thankfully none of the people inside decided to run, they would have been executed because the cops know people in WI have weapons to fend off horny moose & they were afeared that they might be mistaken for a moose.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2019 @ 3:04pm

      Re:

      "...they were afeared..."

      Justifiably so. Luckily, they knew enough to be afeared

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 11 Oct 2019 @ 3:01pm

      Re:

      So the cops decided to stop a crime that at worst would have been a misdemeanor and wound up being just a ticket, by committing multiple felonies — one of which could have resulted in the cops being on the sex offender registry.

      That escalation does tend to explain why running away has become a capital crime.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Oct 2019 @ 3:58pm

        Re: Re:

        Maybe they were hoping there would be some young drunk kids they could force into the ground and boss around!

        reply to this | link to this | view in chronology ]


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