Welcome to Audit the Audit, where we sort out the who and what and the right and wrong of police interactions. This episode covers vehicle searches, trespassing, and profanity, and is brought to us by U People's Channel. Be sure to check out the description below and give them the credit that they deserve. In a video posted on July 28th, 2022, YouTuber Joshua Lloyd was filming himself on the berm of 19th Avenue in Phoenix, Arizona, while engaging in the outdoor recreational activity known as geocaching, where participants attempt to find containers called geocaches or caches that other players hide in locations around the world. After Mr. Lloyd was searching for the cache for about 30 minutes, Officer Philip Fortuna of the Phoenix Police Department, along with his partner, who only identified himself by his badge number of 8632, responded to a call that an unknown individual made regarding Mr. Lloyd's presence in the area. All right, guys. We'll talk to you soon, and we'll see you later. Oh, hold on. We got the cops. They're going to run my license plate. Good morning. Morning. Can I help you? Uh I don't know. Can we help you? Do you live here? No, but this is public, correct? Uh I'm not sure on that. Could be private property. Could be, but if there was, I do believe there would be a sign posted somewhere, right? Not necessarily. Oh, well, I mean So somebody called on you. Is that your car? That is my car. Okay. Um well, if it is public Uh I mean, I would figure it's public. You have electric access here. You have You have a You have a property right there? state-issued sign. Is that public property right there? Where? Right there? Yeah, right just north of us. Could possibly be cuz it's easement. Okay. Is there anybody in the car? No. Just me, but if you want to go check, go ahead, go check. Okay. Can I get your permission to do anything else? No. Do I need your permission? No, because permission to check the car? You would need my permission to go inside the car. you just said if you want to go check if there's someone else in the car. Do I need Oh, yeah, yeah, yeah. Go You can go look in and see if You told me go ahead. Do I need you to tell me to go ahead to do it, or can I do it on my own? Well, I mean, you could do it on your own. You can do a plain view search. Just making sure I Like I thought you were under the impression you had to give me permission. To go inside the car, you need permission. Not necessarily. What do you mean, not necessarily? Officer 8632 asks Mr. Lloyd whether he needs permission to look inside his vehicle, and Mr. Lloyd confirms that he does not, but argues that officers do need permission to go into vehicles. In general, officers are permitted to search a vehicle without a warrant when they have received consent from the driver. However, the Supreme Court has identified several other exceptions to the warrant requirement of the Fourth Amendment that allow officers to search vehicles without consent under certain circumstances, such as when a protective search is necessary for the officer's safety, or if the suspect is arrested and the search is conducted pursuant to the arrest. Additionally, in the 1925 case of Carroll versus United States, the Supreme Court held that a warrantless search of an automobile by police officers who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment. One way that an officer can obtain probable cause to search a vehicle without a warrant is through the so-called plain view doctrine. In the 1983 case of Texas versus Brown, the Supreme Court explained that, quote, "The plain view doctrine provides grounds for a warrantless seizure of a suspicious item when the officer's access to the item has some prior justification under the Fourth Amendment. In this case, the court found that an officer did not violate the Fourth Amendment by shining his flashlight into a car and changing his position to see what was inside because, quote, the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable assuming that there is probable cause to associate the property with criminal activity. Additionally, in the 1990 case of Horton versus California, the Supreme Court determined that a plain view seizure does not need to be the result of an officer inadvertently seeing the item, holding that, quote, even though inadvertence is a characteristic of most legitimate plain view seizures, it is not a necessary condition. In reaching this conclusion, the court reasoned that although it is, quote, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, plain view evidence could be seized as long as its incriminating character is, quote unquote, immediately apparent and the officer has a lawful right of access to the object itself. Applying this precedent, it is likely that a court would conclude that the Phoenix officers did not violate Mr. Lloyd's Fourth Amendment rights by looking in his car windows and that if they saw any contraband while looking in the windows, they would have been within their authority to seize it. You like the walking stick? I mean, would you guys like my name? I'll give you my name. You don't have to run the plate for it cuz my name's not on the plate. What's your name? My name is Josh. Josh? Mhm. Josh what? Lloyd. L L O Y D. Is it Josh or Joshua? It's Joshua. Hey Phil. Joshua Lloyd. Huh? Joshua You're not towing my car. We may have to tow it. It's not registered to him, it's registered to a female. It's a van it's left on the roadway running. I'm not going to leave it here. Oh. Just running. So, let's get a hold of uh Really? boss and we'll find out if for safekeeping. Otherwise, somebody's going to make off with this thing. Yeah. Are you serious? Not even going to question me on who's it who it's registered to? Would you like the insurance and registration? Well, you're not driving it. Why would I ask for that? It's just parked right now. you driving it right now? No, it's parked. Okay, so you're not driving. No. Sure, what's your name? Joshua Joshua Lloyd. Joshua Lloyd. I'm going to try and get a hold of the owner, see if they know where the car is. Otherwise, we'll She'll tell you that her son-in-law has it. You're going to I don't let him act like that. Just because I'm standing over here next to a wall. And you guys haven't even asked me what I'm doing. You guys go over to my car, give me the third degree, and you don't even like, "Hey man, what are you doing?" I even like turned around, I gave you the thumbs up. He comes out all hard. Why? I'm not trying to catch you in anything, man. Asking a simple question. That's a hell of an investigation skill you guys got there. Have you been allowed to use the car? I live with her. Yes, and I'm allowed to use the car. Hence the reason why I have it. Okay. All right. Well, we're going to do some research, find out whose property that is. We got your name, your information. Uh if it turns out that it is private property I don't think it would be private property. I don't think. That's why I'm going to find out for sure if whose property it is. Okay, you go go ahead for sure. I don't need your permission to check out whose property it is, but I appreciate you giving me the go-ahead. I will look into that. Officer 8632 says he does not know if the location where Mr. Lloyd was geocaching is public or private property, but he claims he will investigate the matter further to determine if he will author a report for trespassing. According to the Maricopa County Assessor's Office Parcel Viewer, the area where Mr. Lloyd was filming, which is located at the intersection of Selden Lane and 19th Avenue, appears to be public property as the closest parcel of privately owned real estate starts on the other side of the wall. Regardless of the property's ownership, Mr. Lloyd could not be convicted of trespassing because he did not violate any of Arizona's trespassing statutes. Under Section 13-1504 of the Arizona Revised Statutes, one of the ways an individual can commit criminal trespass in the first degree is by knowingly entering or remaining unlawfully in or on a residential structure or in a fenced residential yard. The statute also prohibits, quote, entering any residential yard and without lawful authority looking into the residential structure thereon in reckless disregard of infringing on the inhabitants' right of privacy. Likewise, Section 13-1503 of the Revised Statutes defines criminal trespassing in the second degree as, quote, knowingly entering or remaining unlawfully in or on any non-residential structure or in any fenced commercial yard. And Section 13-1502 describes criminal trespassing in the third degree as, quote, knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by a law enforcement officer, the owner, or any other person having lawful control over such property or reasonable notice prohibiting entry. However, it should be noted that under Arizona law, individuals can be convicted of trespassing on both private and public property. In the 1995 case of State versus Barr, Division One of the Court of Appeals of Arizona held the state's third-degree trespassing law applies to both private and public property because, quote, there is no indication in the statute or elsewhere that the legislature intended to limit this criminal trespass statute solely to private property. The legislature could have distinguished between private and public property, but did not. Rather, it used the phrase "any real property" in the definition of this offense. Here, Mr. Lloyd was in an unfenced area of land, not a structure or fenced yard, and he was clearly not looking into any residential structures, as he was separated from all the nearby private homes by roads and the wall. As he also had not received a request to leave, Mr. Lloyd could not have been convicted of any degree of trespassing for his actions. Can I have your name and badge number for your card? 8632 Your card, please. I have a bad memory. You're recording it. Okay. Can I have your name and badge number, please? Fortuna, 8882 All right. Thank you. I greatly appreciate that. Josh, I would do some further research before you go on a You know, hold on. Before you go and give me the lecture, how about before you come up all hard on somebody, you ask them what they're doing? Use profanity, Josh. Do the research and find out whose property you're on, because you may be breaking the law. It's public property, I can tell you that. that as a fact. I am. I'm stating it as a fact, because I like with you guys. Well, now you're using more profanity. I can use profanity, it's the First Amendment. You cannot restrict my speech, not unless it's fighting words. If I use it to emphasize my sentences, I can use it to emphasize my sentences. One man's curse word is another man's lyric. It can be an issue. Josh, we're going to do the research. Do the research. You, too. Officer 8632 claims that Mr. Lloyd's use of profanity towards him could be considered disorderly conduct, and that he has the authority to restrict Mr. Lloyd's speech. According to section 13-2904 of the Arizona Revised Statutes, quote, "A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family, or person, or with knowledge of doing so, such person makes unreasonable noise or uses abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person. Additionally, section 23-3 of the Phoenix City Code states that, quote, every person who maliciously and willfully disturbs the peace or quiet of any neighborhood, family, or person by loud or unusual noise or by tumultuous or offensive conduct or by threatening, traducing, quarreling, challenging to fight, or fighting or who applies any violent or abusive or obscene epithets to another is guilty of a misdemeanor. However, statutes like these must be read with the protections of the First Amendment in mind. And as the Supreme Court held in the 1971 case of Cohen versus California, which Mr. Lloyd paraphrased in his conversation with Officer 8632, the First Amendment prohibits a state from criminalizing the mere use of profanity, quote, absent a more particularized and compelling reason for its actions. The decision also recognized that speech does not simply communicate information. Rather, it conveys a specific emotional message created by the words the speaker chooses. The court concluded that the government cannot forbid particular words without also running a substantial risk of suppressing ideas in the process. And that as Mr. Lloyd pointed out, quote, one man's vulgarity is another's lyric. It should be noted that the fact that Mr. Lloyd used profanity in conversation with a police officer is also relevant to the analysis. In the 1987 case of City of Houston versus Hill, the Supreme Court stated that, quote, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. Speech is often provocative and challenging, but it is nevertheless protected against censorship or punishment unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Here, the court would likely conclude that because Mr. Lloyd's use of profanity did not rise to the level of fighting words, it was protected by the First Amendment, and he therefore could not be convicted of disorderly conduct for his speech. Well, guys, I got two videos out of that. 811229G5468Y After the officers left, Mr. Lloyd briefly got into his vehicle, then continued to film as he walked around the area. About 5 minutes later, he found the same officers detaining a man in handcuffs. Mr. Lloyd filmed the officers arresting the man and placing him in the cruiser with the aid of two other officers. The officers did not acknowledge Mr. Lloyd or make any attempt to interfere with his filming. According to Mr. Lloyd's response to a comment on the original video, he filed a complaint against the officers and included a link to the video. In a response to another comment, Mr. Lloyd stated that he would not be pursuing legal action against the officers because his constitutional rights were not violated during the interaction. Overall, Officer 8632 gets a C because, although Mr. Lloyd is correct in stating that the officers did not violate his Fourth Amendment rights during the interaction, Officer 8632 maintained a hostile, argumentative, and condescending demeanor throughout the encounter, attempted to censor Mr. Lloyd's speech, and threatened to file a trespassing report against Mr. Lloyd when he could not have been trespassing according to Arizona law. As Mr. Lloyd pointed out, Officer 8632 was aggressive from the very beginning of their interaction, and instead of asking Mr. Lloyd what he was doing, he seemed to be looking for any reason at all to arrest him or tow his vehicle. Officer Fortuna gets a B because, although he did not engage in negative interactions with Mr. Lloyd like his partner did, he ignored Officer 8632's behavior and did not attempt to correct him or de-escalate the situation. Based on his facial expressions and exchanges with Mr. Lloyd, Officer Fortuna seemed to be amused with the situation and appeared to be enjoying Mr. Lloyd's willingness to stand up to his partner. This indicates that Officer Fortuna was aware that Officer 8632's behavior was unprofessional and over-the-top. While it is possible that Officer Fortuna spoke to Officer 8632 privately or took other steps to address his conduct, this encounter highlights why it is so important for officers to confront their peers on their inappropriate actions. Mr. Lloyd gets an A for remaining relatively polite and respectful throughout the encounter, understanding and exercising his First Amendment rights, and filing a complaint with the appropriate authorities after the interaction. Although Mr. Lloyd volunteered his name when he was not asked for it or required to provide it, in response to a comment on the original video, Mr. Lloyd explained that he did so intentionally, stating that, "Quote, this is how police and everyone that supports the police say we should act with the police. Didn't work out how they say it works out. It's funny to me how I act the way they say I should, and I still got that encounter." It should also be noted that Mr. Lloyd considers himself to be a so-called cop watcher rather than an auditor, and I commend him for taking the time to learn about his constitutional rights and even garner knowledge of Supreme Court case law. Let us know if there is an interaction or legal topic you would like us to discuss in the comments below. Thank you for watching, and don't forget to check out my second channel for even more police interaction content.