******Import ant Update 1/27/2023******
The post below regarding who opened the door of the Pelosi home was made on November 3, 2022. It was made in response to “conspiracy theories” (read: “reasonable guesses”) about who opened the door of the Pelosi home after the very vague arrest affidavit made by an FBI agent left the question unanswered.
It was my belief that the responding police officer opened the door, due to several facts:
- First, the arrest affidavit vaguely stated “when the door was opened,” rather than indicating who opened the door.
- Second, NBC News reporter Miguel Almagauer was suspended by NBC after her reported that Paul Pelosi opened the door when the police came to the Pelosi home.
- Third, People were beginning to openly speculate that an unknown third person was at the home.
- Finally, I believed that the intricacies of the 4th Amendment were the reason for the vague arrest affidavit.
Now, the video has been released, and it appears that I was wrong. Paul Pelosi opened the door of the Pelosi home. You can see the short video here:
And while this seems to be a “normal” answer to this question, that does not mean the story isn’t strange.
It is strange in one sense because the attacker, David DePape is obviously a violent mentally ill man, acting as violent mentally ill men do.
But it is also weird because this happened immediately before a midterm election, and while there are legitimate reasons not to provide BWC footage (legitimate privacy concerns of victims), none of those seem to be at play here.
But the story is REALLY weird because it now seems Miguel Almagauer was suspended from NBC, and his report was scrubbed from the internet even though IT WAS TOTALLY TRUE.
New questions like “Why is Paul Pelosi holding a drink?” and “Why doesn’t Paul Pelosi have any pants on?” and “Why did he not tell the 911 operator that he needed police assistance?” are easily understandable in the real world, because Paul Pelosi is an 80-year-old man who was woken up in the middle of the night by a violent mentally ill man who wished to kidnap his wife. He was doing the best he could to keep the man calm, and it is most likely true that he didn’t hear or understand the 911 operator’s question about needing police assistance clearly, because (in addition to the fact that he is 80) – he had other things on his mind which were distracting him.
That being said, I offer my correction to the story:
It was Paul Pelosi who opened the door, not the police officer.
I leave the incorrect story below up for the world to see, because even though it is not accurate, it is at least a nice explanation of 4th Amendment law.
******END OF UPDATE*******
On October 28, 2022, a strange man named David Depape entered the home of the speaker of the house Nancy Pelosi. This is a STRANGE event, to say the least. And not only is the attack strange, the reaction to the attack was also strange. But not only was the reaction strange, the reaction to the reaction was strange. To summarize all of the strangeness, I will turn it over to Tucker Carlson, who covered it quite well on Monday, October 31:
Now, however, we have the arrest affidavit of the criminal complaint, which describes what happened. You can see it here:
In light of all of this a big question has arisen regarding the following paragraphs:
On October 28, 2022, at 2:23 a.m., San Francisco Dispatch received a 9-1-1 call from Paul Pelosi (“Pelosi”) located at the Pelosi residence in San Francisco, California. Pelosi stated words to the effect of there is a male in the home and that the male is going to wait for Pelosi’s wife. Pelosi further conveyed that he does not know who the male is. The male said his name is David.
At 2:31 a.m., San Francisco Police Department (“SFPD”) Officer Colby Wilmes responded to the Pelosi residence, California and knocked on the front door. When the door was opened, Pelosi and DEPAPE were both holding a hammer with one hand and DEPAPE had his other hand holding onto Pelosi’s forearm. Pelosi greeted the officers. The officers asked them what was going on. DEPAPE responded that everything was good. Officers then asked Pelosi and DEPAPE to drop the hammer.
DEPAPE pulled the hammer from Pelosi’s hand and swung the hammer, striking Pelosi in the head. Officers immediately went inside and were able to restrain DEPAPE. While officers were restraining DEPAPE, Pelosi appeared to be unconscious on the ground. . . .
But there’s a HUGE question that nobody is answering:
WHO THE HECK OPENED THE DOOR?
However, while that is a legitimate question, there is an easy and obvious answer:
Officer Colby Wilmes opened the door.
Let me prove it.
The Obvious Legal Reason for the Strange Pelosi Arrest Affidavit
Most people are wondering why this paragraph has been written so strange, and they think something is being hidden from them. Truth be told, there IS something being hidden, but it is not what you think. It is something much more boring and “legal.” The answer comes from a recent Supreme Court case. That case is Caniglia v. Strom 141 S.Ct. 1596 (2021). Here is the factual and legal summary of the case:
During an argument with his wife, petitioner Edward Caniglia placed a handgun on the dining room table and asked his wife to “shoot [him] and get it over with.” His wife instead left the home and spent the night at a hotel. The next morning, she was unable to reach her husband by phone, so she called the police to request a welfare check. The responding officers accompanied Caniglia’s wife to the home, where they encountered Caniglia on the porch. The officers called an ambulance based on the belief that Caniglia posed a risk to himself or others. Caniglia agreed to go to the hospital for a psychiatric evaluation on the condition that the officers not confiscate his firearms. But once Caniglia left, the officers located and seized his weapons. Caniglia sued, claiming that the officers had entered his home and seized him and his firearms without a warrant in violation of the Fourth Amendment. The District Court granted summary judgment to the officers. The First Circuit affirmed, extrapolating from the Court’s decision in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706, a theory that the officers’ removal of Caniglia and his firearms from his home was justified by a “community caretaking exception” to the warrant requirement.
Held: Neither the holding nor logic of Cady justifies such warrantless searches and seizures in the home. Cady held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. In reaching this conclusion, the Court noted that the officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents. 413 U.S. at 441, 93 S.Ct. 2523. But searches of vehicles and homes are constitutionally different, as the Cady opinion repeatedly stressed. Id., at 439, 440–442, 93 S.Ct. 2523. The very core of the Fourth Amendment’s guarantee is the right of a person to retreat into his or her home and “there be free from unreasonable governmental intrusion.” Florida v. Jardines, 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495. A recognition of the existence of “community caretaking” tasks, like rendering aid to motorists in disabled vehicles, is not an open-ended license to perform them anywhere.Caniglia v. Strom, 209 L. Ed. 2d 604, 141 S. Ct. 1596, 1597 (2021)
The actions of the San Francisco police become much clearer when we see the facts that happened before. While Paul Pelosi called 911, he did not make a REAL call to 911. Instead, here is how the New York Post summarized the event:
Paul Pelosi managed to call 911 and alert the dispatcher to his dire situation without his eventual attacker even knowing.
Pelosi, the husband of House Speaker Nancy Pelosi, discreetly called the emergency line when a hammer-wielding maniac broke into his San Francisco home at 2 a.m. Friday.
The alleged attacker, David DePape, didn’t realize Pelosi had dialed his phone or understand that Pelosi was speaking in code.
“What’s going on? Why are you here? What are you going to do to me?” Pelosi allegedly said in order to alert 911 to the emergency without tipping off DePape to the call, according to CNN.
The dispatcher, Heather Grimes, had sensed something was wrong with the situation and ordered officials to conduct an expedited wellness check on the home.https://nypost.com/2022/10/29/paul-pelosi-spoke-in-code-to-alert-911-operator-of-hammer-attacker-report/
So look at what the Police were faced with. There was NOT a 911 call for help from Paul Pelosi. Instead, there was just very strange call that 911 received at 2a.m..
There were no “exigent circumstances” here. There was no attack. There was no audible struggle. It was just…. ….weird.
And so imagine that you’re the police officer, responding to this call.
You have the option of bursting in, guns blazing, to save the Speaker of the House.
But this would be — as Justice Thomas made clear – a blatant Fourth Amendment violation. So, the officers did not enter the home. Instead, the officers came to the house and knocked on the door.
This is when the legal details of the Caniglia v. Strom case become important:
To be sure, the Fourth Amendment does not prohibit all unwelcome intrusions “on private property,” ibid.—only “unreasonable” ones. We have thus recognized a few permissible invasions of the home and its curtilage. Perhaps most familiar, for example, are searches and seizures pursuant to a valid warrant. See Collins v.Virginia, 584 U.S. ––––, –––– – ––––, 138 S.Ct. 1663, 1670–71, 201 L.Ed.2d 9 (2018). We have also held that law enforcement officers may enter private property without a warrant when certain exigent circumstances exist, including the need to “ ‘render emergency assistance to an injured occupant or to protect an occupant from imminent injury.’ ” Kentucky v. King, 563 U.S. 452, 460, 470, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011); see also Brigham City v. Stuart, 547 U.S. 398, 403–404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (listing other examples of exigent circumstances). And, of course, officers may generally take actions that “ ‘any private citizen might do’ ” without fear of liability. E.g.,Jardines, 569 U.S. at 8, 133 S.Ct. 1409 (approaching a home and knocking on the front door).Caniglia v. Strom, 209 L. Ed. 2d 604, 141 S. Ct. 1596, 1599 (2021)
When the officers are knocking on the front door, this is what is legally called an “invasion of the curtilage” of the home. But at this point, there is still no exigent circumstance. They might hear voices. They might know who lives at the home. But there is no emergency, and there is no Fourth Amendment ability to enter the house.
The moment when they did enter the house is quite clear:
Pelosi greeted the officers. The officers asked them what was going on. DEPAPE responded that everything was good. Officers then asked Pelosi and DEPAPE to drop the hammer.
DEPAPE pulled the hammer from Pelosi’s hand and swung the hammer, striking Pelosi in the head. Officers immediately went inside and were able to restrain DEPAPE.
So the officers never entered the house until Depape swung the hammer and hit Pelosi in the head. Why? Because at that moment (as Justice Thomas describes) they were rendering emergency assistance to an injured occupant or to protect an occupant from imminent injury.”
And that’s when the officers go in. They only went in at that moment, because that’s when the Fourth Amendment allowed them to.
The Door that Was Opened
But there’s still a question about WHO opened the door. But at this point, a lawyer like me already knows. The answer becomes clear whenever you compare what the report DOESN’T say with what the Caniglia v. Strom case DOESN’T define. Look at what Thomas says:
And, of course, officers may generally take actions that “ ‘any private citizen might do’ ” without fear of liability.Caniglia v. Strom, 209 L. Ed. 2d 604, 141 S. Ct. 1596, 1599 (2021)
Can a private citizen knock on a door and then open it without any answer from the inside? That’s a very good question. It depends. It depends on details like whether you could see inside and notice that something strange was going on. It also depends on what you knew before opening the door. I suppose it would depend on what time of day it was an all the surrounding circumstances.
And this is where that strange sentence all becomes clear and we can figure out exactly what happened.
If the officers violated the Fourth Amendment, then everything they see after they violate the fourth amendment is what is called “fruit of the poisonous tree.” All of it can get withheld as evidence in a criminal case. As such, if the officers violated the Fourth Amendment by opening the front door, then everything they see AFTER they open that door is something a defense attorney can keep from a jury.
This obviously would be a terrible thing in such a high profile case, and there are two options available to keep this from happening.
One option to make sure that the report does not showcase a violation of the Fourth Amendment would be for the officers to describe:
- what they saw,
- what they knew,
- what they reasonably suspected,
- what they could hear from behind the door
- the time of night,
- how their training and experience informed their decisions, and
- how the knowledge of the welfare check led them to believe it was reasonably necessary to open the door after knocking with no answer
They could pack so many facts into that report that everybody with two brain cells would have to agree that it was REASONABLE to open that door, which means the report WOULDN’T describe a violation of the Fourth Amendment.
But the second option. They could skip all that and just write write the following:
When the door was opened. . . .
Because that doesn’t describe a violation of the Fourth Amendment, either.
So, with that, I hope you see what is going on here:
- Officer Colby Wilmes of the San Francisco Police Department knew EXACTLY how far the Fourth Amendment would allow him to go in this wellness check on the Pelosi home.
- And FBI Special Agent Stephanie Minor knows EXACTLY what details to skip over in the arrest affidavit to make sure that there are no get-out-of-jail-free cards givin to Depape’s public defender lawyer.
And that’s who opened the door of the Pelosi home.