Does It Violate the Fourth Amendment For Cops to Take Some Time Out and Play Wii During the Execution of a Warrant?:
The headline is not from the Onion. Tampa Bay Online reports:
Assuming playing Wii didn't lead the police to discover any evidence, I don't think the defendant can get any of the evidence suppressed. And it's hard to know what the damages are in a civil suit, even assuming that there was in fact an unauthorized Wii seizure (a wee seizure, I suppose!). But c'mon, folks: Wii is for home, not work, especially when you are conducting a police raid.
Thanks to Gregory McNeal for the link.
With guns drawn and flashlights cutting through darkened rooms, Polk County undercover drug investigators stormed the home of convicted drug dealer Michael Difalco near Lakeland in March.Here's a photo of the action:
As investigators searched the home for drugs, some drug task force members found other ways to occupy their time. Within 20 minutes of entering Difalco's house, some of the investigators found a Wii video bowling game and began bowling frame after frame.
While some detectives hauled out evidence such as flat screen televisions and shotguns, others threw strikes, gutter balls and worked on picking up spares.
A Polk County sheriff's detective cataloging evidence repeatedly put down her work and picked up a Wii remote to bowl. When she hit two strikes in a row, she raised her arms above her head, jumping and kicking.
While a female detective lifted a nearby couch looking for evidence, another sheriff's detective focused on pin action.
But detectives with the Polk County Sheriff's Office, the Auburndale, Lakeland and Winter Haven police departments did not know that a wireless security camera connected to a computer inside Difalco's home was recording their activity.
Assuming playing Wii didn't lead the police to discover any evidence, I don't think the defendant can get any of the evidence suppressed. And it's hard to know what the damages are in a civil suit, even assuming that there was in fact an unauthorized Wii seizure (a wee seizure, I suppose!). But c'mon, folks: Wii is for home, not work, especially when you are conducting a police raid.
Thanks to Gregory McNeal for the link.
I have been here two years and am resigned to seeing the most bizarre headlines, scrolling down, and finding that I am reading about my new home. It's gotten to the point that I am surprised when something stupid happens anywhere else.
We still love it here.
What about the unauthorized (and unnecessary) use of electricity? Also, although damages would be nominal, isn't it technically a seizure (that violates the constitution) if they they continue to play the game after they know that it's not related to the warrant?
They played with something that didn't belong to them. They don't get to joy ride in the Ferrari, they don't get to snort the coke, they don't get to borrow the porn, no matter how much of a scum bag the suspect may be. It's not their stuff, and that's not why the citizens are paying their salary.
Against that background, a few games of Wii bowling seem downright tame. Inexcusable, but tame.
Doubt there is a 1983 action (though I imagine a good plaintiff's lawyer could concoct one), but if there were, he could get nominal damages plus attorneys' fees.
Would it have constituted an illegal seizure had the officers used the bathroom too?
Probably not a seizure, but it's the suspect's toilet, not yours, he's entitled to deny you the use of it, and if he's in custody while you're searching his house, you should probably assume he intends to deny you the use of it.
true dat
otoh, the wii could be considered dual use technology and maybe the officers were just ensuring that the software hadn't been modified to enable terrorists!
yea, that's the ticket
Wait, wasn't the warrant for drugs? You're clearly not very good at this, you must be an honest cop :-)
So they can suppress the disclosure of his high score in Wii bowling?
That sense of entitlement and arrogance in another situation might lead to some very serious misconduct, and a serious miscarriage of justice. That's the problem with this lack of professionalism. Here's, it's no biggy. Elsewhere, it could conceivably be life and death.
If I were sitting on the city council, I'd fire their asses, every one. The last thing you need is the potential liability of a cop who thinks his badge is a license.
is it unproffesional? yes. firable? not unless the cop already has a pretty serious history
Yeah, I understand it's pretty tough to discipline cops.
Unfortunatly, institutions that use force in the public interest, and search folks' houses looking for evidence of crimes, need more discipline that average, not less.
i agree they should be DISCIPLINED. i don't agree they should be fired.
here's a hint. discipline includes such things as oral reprimands, written reprimands, suspensions w/o pay and the highest level is firing.
we both agree they should be disciplined. we disagree on the degree.
As we know , we can find lots of fans ,lots of store have been open worldwide.
And reasonable people (and myself) can probably differ on the degree. To me, this is around the same level of a cop helping himself to a bag of chips and a soda while executing a warrant on a convience store. Fireable?
And BTW, I'm not sure what good it would do to fire the poor folks who happened to get caught on this video. This seems like evidence of a more systemic, or cultural, problem.
True enough, but are these our only choices?
That's as far as I got before I had a problem with this incident.
i would disagree. the chips thang is a theft. i am sure somebody here thinks that using the wii is a "theft" (theft of electricity), but in my opinion that's ridiculous.
stealing is a crime of moral turpitude and a crime of dishonesty. my agency has ZERO tolerance policy with crimes of dishonesty. and i think that's reasonable.
what these cops did was a crime of poor judgment and disrespect towards the person's stuff, but it wasn't a theft. not in any rational sense.
eliminating somebody's career for such a minor thing, especially if they have a good prior record, imo is ridiculous overkill.
this seems tailormade for a written reprimand or a short suspension (1-5 days)
i would disagree. the chips thang is a theft. i am sure somebody here thinks that using the wii is a "theft" (theft of electricity), but in my opinion that's ridiculous.
stealing is a crime of moral turpitude and a crime of dishonesty. my agency has ZERO tolerance policy with crimes of dishonesty. and i think that's reasonable.
what these cops did was a crime of poor judgment and disrespect towards the person's stuff, but it wasn't a theft. not in any rational sense.
eliminating somebody's career for such a minor thing, especially if they have a good prior record, imo is ridiculous overkill.
this seems tailormade for a written reprimand or a short suspension (1-5 days)
There have been instances where officers confiscated video game systems while executing warrants. Now, nominally, you could hide a hard drive in there (especially on a Playstation 3, which you could have reformatted to Linux), but in almost all cases, it's not actually possible for evidence to be contained on a video game system (at the least, not incriminating evidence of a crime useful to a prosecutor!)
But these seizures are rarely challenged, mostly because there's not a big overlap between "people who have their video game consoles seized in a search" and "people who can afford to retain a lawyer to defend their rights mostly on principle".
The electricity required to operate a Wii console and a big-screen television for nine hours can cost more than $100 annually. If nine hours is an average day's use, the cost approximates . . . 30 cents.
I see little difference between eating the chips and playing the game. Or plugging a charger into someone's socket. All, without permission, seem to constitute theft.
Seriously, video surveillance equipment inside the house of a suspected drug dealer should be rather high on the list of things to seize. Again, maybe I watch too much TV. I’d think you might want to check the toilets out before you went to using them. They were already confiscating flat-screen TVs. I presumed it was on their list of things they could work forfeiture on.
I wonder if the officers in this case might get a rather rough go of it because aside from the merits of what they did, they made the department look pretty crappy. I suppose that's why there are unions.
What she did next made me want to twist her idiot head off. She started playing with my camera lens, scoping out her buddy and calling out to him and saying "oooh woooh" and making other childish noises and gestures.
I made no complaint against this idiot, but I wish I had. She was lucky I had a plane to catch. Oh, wait, that's by design.
Using your badge to play with other people's property is rude, obnoxious, disrespectful, unprofessional, and inappropriate. We entrust these people to look after our safety, or enforce laws. Using a search warrant as an excuse to play with someone's property is unpardonable. These cops should be cashiered.
the fact that you see little difference says it all.
heck, the cops can turn the lights on in the house too, while they are there. that costs money. so, i guess that's theft too (rolls eyes)
what the cops did was inappropriate, unprofessional and disrespectful. trying to equate it with a crime of dishonesty like theft is ridiculous.
i am sure SOME People here would see it as theft. i certainly don't
fwiw, i have never done "#2" at a target location during a search warrant. i have done "#1". so, i guess i stole WATER but not toilet paper.
mea culpa.
thank god i got that off my chest. the guilt is killing me.
i've spent upwards of 6 hours straight in a house during a warrant w/o a break. if you gotta go, you gotta go. on surveillances i carried an empty gallon jug in my car for just that purpose. it's not like i can break surveillance to go use a service station or even worse - get outside my car and draw attention to myself as i relieve myself in a residential neighborhood.
i guess, according to the zero tolerance theft police here, police need to bring porta potties to each warrant, so that there will be no toilet paper/water thefts!
this is a serious injustice that needs to be addressed!
i do have one kind of funny story along these lines. we were at a residence and had just arrested one of the homeowners for a felony warrant. we were chewin' da fat with the other guys, and one of them noticed that i kept looking at his guitar. he asked me if i played, and i said i did. i asked him, "mind if i try it?" he said "sure" (i am sure some here would see this as a coercive example of police power, and the question was a demand, since nobody would feel free to say no, but i digress). anyway, within a few seconds of starting, PLING! i broke a string.
oops
i pulled $7 from my pocket (a whole set of strings runs about $5 or so) and gave it to the guy.
but i guess i committed vandalism. :)
No they won't. It will be obvious what it is from the simulation on the class holodeck.
I see no difference between taking a store's can of soda (whose cost approximates a dime, and may not be paid by the store for several months consequent to allowances) for personal consumption and taking electricity (which adds 25 cents to a utility bill that will be due within a month) for personal recreation. If one constitutees theft and/or a crime of dishonesty, so does the other.
I see nothing magic about "theft." I don't see it as fundamentally more dishonest or more immoral than other bad behavior the cops might have engaged in, simply by virtue of its "theftness." If the search was unnecessarily disruptive -- not damaged, but stuff thrown around and in disarray -- I think that's less civilized behavior than eating a little food.
Whit, your position is logical, reasonable, and unacceptable. Primarily because, one you start from the principal that a little unauthorized use of someone else's property is acceptable, you end up with what we see here, and worse.
Playing the Wii game in the process of executing the warrant, uh uh. Not because it's theft; police officers are justified in causing a lot of property damage if it's necessary for the search. But because it's not necessary for the search! It's not any more justifiable than if they sat down for half an hour in your easy chair reading your book, or if two of them snuck off to the bedroom and had sex on your bed. Not their house, not their stuff. They're there to do a particular function, and in order to perform that function, given leave to do acts that would be a gross violation of the law if they weren't done by police officers with a warrant.
Grossly unprofessional conduct warranting administrative discipline.
Does not call into question any evidence seized in any way.
only if you worship at the altar of the slippery slope. i think it's ridiculous. and fwiw, i would bet most NON-lawyers would have no problem with a cop taking a pee at a warrant location, but WOULD have a problem with the cops using the guy's Wii. this is why, generally, i prefer the common sense of the common man to the nitpicky sophistry we see here where people say "it's theft."
but most police officers, and most police agencies DO see the distinction. theft is a crime of dishonesty, of moral turpitude.
screwing around with a guy's wii is not seen thusly.
if an officer drank a coke from a warrant suspect's refrigerator, i would say he needs to be fired. that's theft, plain and simple. unless he was about to go into shock from low blood sugar and was a diabetic, it is plain and simple - a theft.
the cops in this case were screwing around. the intent was to play the game, the fact that it took a tiny amount of electricity and is thus TECHNICALLY a theft, is not really the point. it's unprofessional and disrespectful, but it aint or shouldn't be considered like a crime of dishonesty.
i would suggest no prosecutor in their right mind would consider charging the cop with theft for playin da wii.
the common sense response is that what the cops did was wrong, and deserves discipline. i am glad to see at least some people can see this, yet not consider it a THEFT (tm) that should be treated like a crime of dishonesty (which should result in firing)
I don't think they should be sued or fired, but I do think that they should be disciplined. If nothing else, they delayed the investigation they were tasked with being a part of. In many ways, this is no different than if they were playing PC solitaire back at the office.
Presumably, they were there on the scene to do a job they were being paid to do, whether guarding the scene, collecting evidence, or whatever. They manifestly weren't doing it - leaving us to wonder what else wasn't getting done as a result.
A cop having a donut on patrol while waiting for a call to a crime scene is one thing. What possible public (and therefore, paid) service was this?
Theft isn't the issue. Unprofessionalism and screwing around on the public dime is.
So, they have no standards for professional conduct; don't they have any standards about being a lard bottom?
your first paragraph is simply not supported by what people are saying. i don't think anybody said that what the cops did wasn't wrong. iow, there is universal (or nearly so ) agreement that what they did was wrong
there is disagreement as to whether it should be considered like a theft (which is mandatory firing - or should be - no matter how small the amount), or like garden variety misconduct - iow doing something disrespectful, and that brought disrepute on the agency, but that was not criminal
clearly, imo it's the latter
theft is a zero tolerance thang. if a cop books a prisoner and the guy has $10,001.01 on him and the cop keeps .01 for himself and books the $10,000 that should be a firing offense.
i've never worked for an agency that does have such a standard. the union would throw a fit. and if they did manage to pass one, they would have ot pay us to workout ON duty, which the bean counters wouldn't want to do. we used to have a guy who was a walking double bypass waiting to happen. and guess what? it happened.
i'm a competitive athlete. i would LOVE for us to have standards and to have incentives (pay, vacation) for such a standard. but the dept is not going to make the investment and the union won't go for it either.
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