Welcome to Audit the Audit, where we sort out the who and what and the right and wrong of police interactions. This episode covers trespassing, the state action doctrine, and mistaken identities, and is brought to us by Tony Effin Wynn's channel. Be sure to check out the description below and give them the credit that they deserve. On November 27th, 2022, Tony Knock Wynn and his girlfriend Lauren Caldwell were shopping at a Walmart location in Spring Hill, Florida, as they had many times before, when Walmart Asset Protection Specialist David Pedegrue mistook Mr. Wynn for another individual named Cody Vondalindy. Because Mr. Vondalindy had been trespassed from that Walmart location in 2018 and was not permitted to return, Mr. Pedegrue called 911 to report that Mr. Vondalindy was in the store. However, Mr. Pedegrue admitted on the call that he did not get a good look at the individual he believed to be Mr. Vondalindy because he did not want to make eye contact with him. Deputy Michael McNeely of the Hernando County Sheriff's Office responded to the call, and Mr. Pedegrue pointed him toward Mr. Wynn, asserting that he was Mr. Vondalindy. According to Deputy McNeely, he called out, "Cody." As he approached Mr. Wynn, and Mr. Wynn turned around. Deputy McNeely immediately placed Mr. Wynn in handcuffs, and Ms. Caldwell began to record the encounter on her cell phone. Here. That does not matter. A year? Yeah, this is you trying to come back. That was like 10, 15 years ago. What are you talking about? There's no limit on that. We're grocery shopping. What are you talking about? You're trespassed from the store. You're not allowed to be here, are you? Where are you taking him? trespassed as well, so you're Let's go. For what? For grocery shopping? guy right there. No, for being trespassed. For grocery shopping? record him right there. Look, record him too. That fat guy That fat guy with the hat. What is going on? cop, too. Where are you taking him? You should be ashamed of yourself. I cannot believe you're doing this. Where are you taking him? I cannot believe you're doing this. You should be ashamed of yourself. I need the keys. This is disgusting. Sorry I feel that way. No, that's a fact. You should be ashamed of yourself. What did he do? He has not done anything. Mr. Wynn tells Deputy McNeely that although he was trespassed from the store about 10 years ago, the court informed him that the warning only lasted for 1 year. And Deputy McNeely replies that he will investigate this claim. It seems that Mr. Wynn is referring to a 2013 shoplifting arrest that resulted in him being trespassed from the Walmart in question. Although the court records from the criminal case do not include details about the length of the enforceability of Mr. Wynn's trespass warning, it is more than feasible that a trespass warning could expire and an individual could be re-invited to shop at the store. Under section 810.08 of the Florida Statutes, quote, "Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure, or having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee to depart and refuses to do so, commits the offense of trespass. In general, when privately owned property such as a Walmart store is held open to the public, the owner of the property is considered to have issued an implied invitation to members of the public to enter without express permission. However, by issuing a trespass warning, the owner or their agent can revoke a certain individual's invitation to enter the premises, so that if they return to the property, they do so without being authorized, licensed, or invited to enter and violate the trespassing statute. In this situation, Walmart may have issued a trespass warning to Mr. Wynn in 2013 that was only valid for a year. Once the trespass warning expired, Mr. Wynn's implied invitation to shop at the store would be considered to be reinstated, and he would be able to enter the Walmart without trespassing. However, even if the trespass warning did not have an expiration date, Mr. Wynn would have an argument that he did not violate the trespass statute because he had regularly been shopping at the Walmart location in question without any issues. Based on this fact, Mr. Wynn may be able to assert that his invitation to shop had been reinstated by the store's acquiescence to his repeated presence, though legal precedent supporting this argument is limited. All right, come on. All right, are you good to take these items for me? Hold on to them. Thank you. And these are all his items, correct? Yeah. Okay, very good. All right. Can you follow me outside? You guys should be ashamed of yourself. You should be ashamed of yourself. We're literally trying to grocery shop and Christmas shop. This is disgusting. Shameful. Okay. Yep. Ma'am, what's your name? Step in here real quick, please. They don't want you to film the kids. Okay. I'm a private citizen. I'm not filming the kids. They don't want you to film. Excuse me? They don't want you to film the kids. I'm a private citizen. Well, then I'm not stepping outside. fine. What's your name? It's Deputy McNeely states that the Walmart employee, who is presumably Mr. Pedegrue, does not want Ms. Caldwell to film inside the office, so she refuses to step inside. As we have discussed many times on ATA, several federal circuit courts have recognized that the First Amendment protects the right to film in public, including the 11th Circuit, which has jurisdiction over Florida. In the 2000 case of Smith versus City of Coming, the 11th Circuit Court of Appeals held that individuals have, quote, a First Amendment right subject time, manner, and place restrictions to photograph or videotape police conduct, and that, quote, the First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest. However, it is important to note that the First Amendment by its terms only prohibits government actors from abridging the freedom of speech, and does not apply to the actions of private persons. As the Supreme Court explained in the 2019 case of Manhattan Community Access Corp. versus Halleck, quote, the free speech clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this court applies what is known as the state action doctrine. The court also noted that under the state action doctrine, quote, a private entity can qualify as a state actor in a few limited circumstances, including, for example, when the private entity performs a traditional, exclusive public function, when the government compels the private entity to take a particular action, or when the government acts jointly with the private entity. Now, while Walmart is open to the public, it is highly unlikely that a court would conclude the store performs a quote, traditional, exclusive public function, because, as outlined in the Halleck case, a private entity only qualifies as a state actor under this exception when it exercises, quote, powers traditionally, exclusively reserved to the state, and, quote, it is not enough that the function serves the public good or the public interest in some way. For this reason, Walmart almost certainly has the right to ban filming on its property. And in fact, according to the Walmart website, the company has instituted a policy prohibiting, quote unquote, unauthorized filming inside stores. Now, Miss Caldwell's situation is more complex than Walmart simply restricting filming in its stores, as Deputy McNeely was the one who informed Miss Caldwell that she was not permitted to film. And although there may be an argument that this was state action that infringed on her right to record, given the fact that Deputy McNeely simply appeared to be expressing the wishes of a private party to limit filming in a room that was not open to the public on private property, a court would probably conclude that Miss Caldwell's First Amendment rights were not violated. The manager here is requesting that you be trespassed from here. If you come back here, you're subject to arrest. Do you understand that? From this Walmart. He's asking that you be trespassed. Why? He doesn't have to have a reason. If you have a house and you don't want someone at your house for whatever reason in Florida, you can have them trespassed. It's the same for Walmart. He's asking that you be trespassed. I'm giving you a warning. I understand, but I I would like a reason. You don't have to have a reason in Florida. Really? I think that's crazy. It is. This is your warning. Okay? So, the reason why he's going to jail tonight is cuz he's been warned in the past. There's no time limit on that. You're taking him to jail? Yes, it's called trespass after warning. He was given a warning in the past and he's back. I'm going to go double-check that so I can have an exact date. Right now, he's being detained. He's not under arrest because I have a crime at hand. I'm going to see if the crime if I have probable cause for the crime. It's a misdemeanor. It's not a big crime. But you told us you're taking him to jail? I'm going to verify that before I do. He's being detained right now, okay? So, I need you to leave. You're being trespassed, okay? Deputy McNeely informs Miss Caldwell that she is being trespassed from the Walmart location and that the store does not need to have a reason to do so. In general, this statement is mostly true, although there are legal limitations on a business owner's ability to discriminate based on protected classes such as race, religion, or national origin. As the Supreme Court of Florida explained in the 1976 case of Corn versus State, where property such as a shopping mall is, quote, privately owned but utilized for monetary gain and hence open to the public, it is considered, quote unquote, quasi-public in the nature of its use because, quote, an invitation is extended to the public to shop to the financial advantage of the owner. For this reason, the court noted that, quote, reasonable non-discriminatory restrictions pertaining to the use of the mall may be placed on the users, such as the requirement that shoes be worn. As any invitation, it can be limited and upon abuse be withdrawn or revoked. In other words, as the Fifth District Court of Appeal of Florida summarized in the 1993 case of State versus Woods, although, quote, shopping malls are quasi-public places which must be open to the public on a non-discriminatory basis, the owner of such a mall does not lose all control over its private ownership interest. Given Walmart's similarity to a shopping mall, it seems likely that a court would recognize that Walmart has the right to terminate an individual's invitation to shop there based on reasonable, non-discriminatory grounds while also limiting the store's ability to ban shoppers for no reason whatsoever. I'm not leaving him. I'm not leaving him. And I always support you guys, but this is this is disgusting. This is horrible. So, the trespass has been confirmed. He has been trespassed here actually this year. So, he will not be staying here. He's going to be going to jail tonight. He will have a bond. You'll be able to bond him out, okay? Does that understand? You understand that? After confirming that a trespass warning had been issued for Mr. Van de Lindt, Deputy McNeely informs Ms. Caldwell that Mr. Wynn, whom he still believes to be Mr. Van de Lindt, is being arrested for trespass and taken to jail. In the 1971 case of Hill versus California, the Supreme Court upheld the constitutionality of an arrest of an individual when the officers mistook him for another individual, concluding that quote, "When the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest." The court noted that although the officer's so-called subjective good faith belief that they had arrested the right suspect would not in itself justify the arrest, quote, "When judged in accordance with the factual and practical considerations of everyday life on which reasonable and prudent men act, the arrest and subsequent search were reasonable and valid under the Fourth Amendment." While it seems that Deputy McNeely did have a good faith belief that Mr. Wynn was actually Mr. Van de Lindt, whether or not a court would conclude that this belief was reasonable is less clear. In reaching the mistaken determination that Mr. Wynn was Mr. Van de Lindt, Deputy McNeely relied on Mr. Pedegrue's identification, along with the fact that Mr. Wynn apparently turned around when he called out the name Cody, and courts have consistently held that officers may rely on information from witnesses with personal knowledge of an event when making an arrest. However, Deputy McNeely failed to take any other steps Mr. Wynn's identity, and it is possible that a court would conclude that his lack of reliable information about Mr. Wynn's identity could render the mistake unreasonable, thereby making the arrest unconstitutional. That being said, courts have long recognized that officers are not required to explore every avenue of investigation or even sift through conflicting evidence before making an arrest, and it is also possible that a court would determine that Deputy McNeely's mistake was reasonable. This is horrible. We are in a We just came from the springs here in this Jeep with a boat and a trailer. I got you. But regardless, I need you to get in the car and drive away because if you come back here, you're going to also be going to be trespassing. Okay? This is disgusting. I'm sorry you feel that way. Can I speak to him? It's up to him. Make it quick. Let me call Mike. Can I at least grab my my phone and take my medication first, sir? Cuz I'm going to I'm going You can't take any medications before going to the detention center. Whatever you need, they can get you there. Can I have my phone though, yeah, and call Mike? That's all I need. You can take your phone if you want. You can't use it. You can take it. I just need it for phone numbers, yeah. Yeah. Do you want her to drive it away cuz she's also trespassing from here. She can't hang out here. I'm going. I can drive it. You sure? I'm just going to go to Mike's house, yeah. I'm going to call him. Just drive it to the next parking lot or something and then have and then pull it over and then have Mike come get it. Okay. All right, that's fine. All right, cuz she That's Yeah, that's fine. As long as she leaves Walmart property. All right. All right. After the arrest, Deputy McNeely drove Mr. Wynn to the Hernando County Jail, where he collected Mr. Wynn's identification for intake and discovered that he was not Mr. Van De Linde. After confirming Mr. Wynn's identity, Deputy McNeely apologized to Mr. Wynn and began to drive him home. However, while still in route, Deputy McNeely received a phone call from his supervising sergeant, who requested a picture of Mr. Wynn and his identification. Deputy McNeely then detained Mr. Wynn on the side of the road while his supervisor conducted an investigation. And when Mr. Wynn's previous trespass warning was discovered, Deputy McNeely drove Mr. Wynn back to the jail to book him for trespassing. On November 29th, 2022, Mr. Wynn was officially charged with trespassing. But on January 25th, 2023, the assistant state attorney filed an announcement of no information that stated that the case did not warrant prosecution, and the case was dismissed that same day. In January of 2023, the Hernando County Sheriff's Office issued a statement attempting to justify the officers' actions, arguing that, quote, "The trespass warning issued at Walmart was still in effect after having never been rescinded by officials there. Therefore, probable cause existed for the arrest of Tony Wynn for the trespass in question. He was processed and charged accordingly." On March 2nd, 2023, Mr. Wynn filed a federal lawsuit suit against Walmart, Mr. Pedegrue, and Deputy McNeely, alleging $10 million in damages for claims including racial profiling, false imprisonment, and false arrest. As of the date of writing this episode, this case is still pending. Overall, Deputy McNeely gets a B- because, although he arrested the wrong person, it seemed to be a genuine mistake, and he immediately apologized to Mr. Wynn when he discovered his error. Deputy McNeely also maintained a professional demeanor throughout the encounter and demonstrated a reasonable understanding of Florida's trespassing laws. That being said, his failure to take any actions to confirm Mr. Wynn's identity before arresting him was a substantial oversight, particularly in consideration of how simple it would be to ask Mr. Wynn for his name or identification. This interaction demonstrates how even well-meaning officers can make mistakes that violate the Constitution. And although I cannot say for certain whether a court would conclude that Deputy McNeely's actions infringed on Mr. Wynn's rights, his error certainly had a profound negative impact on Mr. Wynn. Mr. Wynn and Ms. Caldwell get an A+ for calmly and respectfully voicing their confusion and dissent while still complying with lawful orders, recording the encounter on Ms. Caldwell's cell phone, and taking appropriate legal action to challenge the constitutionality of Mr. Wynn's arrest. Although the legal issues involved in this case are far from black and white, I commend Mr. Wynn and Ms. Caldwell for taking a stand against the injuries that Mr. Wynn experienced. Regardless of the outcome of the legal case, their actions have raised awareness among the community regarding these important subjects and have hopefully served to remind police officers who hear about this situation of the importance of conducting thorough investigations. 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.