MILWAUKEE — The Milwaukee Police Department has been named in a federal lawsuit after a homeowner says his home was illegally searched.
John Burks, the homeowner, contacted the I-Team to show us body-worn camera footage of the search.
Burks was not home the day his house was searched. Police were called to his house in December 2019, after a neighbor called 911 for an apparent burglary, according to the complaint filed in court.
The body camera footage shows police clearing the home looking for potential suspects or people in the home in need of emergency help, making sure it’s secure and there are no threats.
“They entered my house but under those circumstances, you've got one objective. To find the burglar or to find somebody who may be in need of assistance,” Burks said.
Burks believes the officers continued to search his home after they cleared it for potential threats of people in need of help.
He shared body camera footage from two of the three officers at the scene, each about 27 minutes long. An open records request by the I-Team for the same video verified the videos were genuine.
In the video, officers pay attention to the wiring in the house, while also commenting on a liquor bottle and a box of condoms they found in one of the rooms.
While searching the house, the video shows the officers found a handgun in a glass cabinet.
Throughout the rest of the video, the officers try to determine if the gun is stolen. There is conflicting information on the video and in police reports. At the end of the body camera video, an officer states it is a stolen firearm after there was confusion among the three officers earlier in the search.
Police took the gun with them, according to the incident report.
Meanwhile, an incident report states the firearm was not listed as stolen, but the call log attached to that incident report says a stolen firearm was recovered.
Burks was never charged with having a stolen weapon, and he tells us it was legally purchased. A property control sheet also obtained by the I-Team makes no mention of the gun being stolen.
After finding the gun, police search through the house again. At one point in the video, an officer said, "He doesn’t know where we’re allowed to go in, go through.”
Burks argues the search went beyond the scope of what the officers were allowed to do and says it violated his fourth amendment rights against unreasonable searches and seizures.
"They found a gun in a place that's too small for a person to be hiding,” Burks said. “It was in my cabinet.”
MPD officials would not comment on open litigation against the department.
The I-Team took the video to Bob Willis, a courtroom expert on police training, who consults local departments.
“It's my job to simply say how officers are trained,” Willis said. “What they're trained to do, what they believe is right. The jury is going to decide yeah or no, guilty or not guilty.”
Willis does not believe a constitutional violation occurred and said the gun was not improperly found.
“Is there clear glass, did he see this through clear glass?” Willis said. “Yes, he did. Did he open the cabinet? No. He was surprised by what he saw. That according to the United States Supreme Court is called the plain view doctrine.”
In a formal response to the complaint in court, police say the officers found the gun in plain view, and it was appropriate to continue searching Burks’ belongings without a search warrant in order to determine who the gun belonged to and to find if there were more.
Willis also said officers can act as what’s called a “community caretaker” established by a 1973 U.S. Supreme Court decision with Wisconsin roots.
“It basically says when you enter a residence with community caretaker, there can be no element of criminal suspicion,” Willis said. “You’re not there to find evidence of a crime. You’re there to help somebody. But here we have evidence of a crime as well.”
A more recent U.S. Supreme Court decision challenged the scope of “community caretaker” and Burks believes it will apply in his case.
Back in May, the court determined police in Rhode Island unconstitutionally took a person’s gun during a warrantless search of a house after a call for a potentially suicidal person. According to the case narrative, the resident in the home agreed to go to a hospital in an ambulance as long as officers did not take his guns. Police did take those guns after the man left in the ambulance.
The court ruled in this case that ".... the existence of ‘community caretaking’ tasks, like rendering aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere."
“There is no constitutional authority that gives them the right to do that in a buoy sweep or a protective sweep or all house clearing,” Burks said.
Willis says other exceptions aside from community caretaker may apply in this case, and in court documents police repeatedly deny the search was improper or illegal.
It will take time to know what will apply in this case. It has been delayed after the City Attorney's office told the court it was dealing with staffing issues.
Also, this is not Burks’ first interaction with police in the courtroom. In 2013 he filed a lawsuit against the Milwaukee Police Department for a stop and frisk case. That case was dismissed. He’s currently suing a police department in Missouri as well for a stop and frisk case.