Episode Transcript
[00:00:01] Hello, everybody. Welcome to the Guardian Mindset podcast. This is attorney Eric Daigle. I'd like to first of all, foremost, I'd like to wish you a happy new Year and Welcome you into 2026.
[00:00:12] Here at Dago Law Group, we have a lot of exciting new ventures ready for 2026 to keep your training needs in a heightened application. And by the way, a look at what we're going to talk about today definitely tells us that we're going to have some hot topics to discuss as we start to enter 2026. And so what I want to do with today's podcast is I want to just give you a brief overview of what we're seeing on the docket leading up to the Supreme Court. And by the way, this is ever changing and there's still some more cases that are pending and whether or not they will be accessed by the Supreme Court. But I want to give this one a title of the 2026 Supreme Court briefing for Patrol and Supervisors. And what cases are coming that could change how you do the job and what on the docket for 2026 means? Well, what I mean by that, these are cases that the Supreme Court has already agreed to decide in the 2025, 2026 terms with the opinions likely issued in 2026. And usually most of these opinions will be between January and June.
[00:01:20] The court can still add cases later, but these are the ones that are locked in right now. And by the way, I want to make sure, as I just give you reference, you've already found the podcast. And if you're listening, hey, thank you. Because we want to use this podcast as a way to get you information quickly and with some enjoyment and entertainment. Right. Hope you're all well and hope you're all enjoying it. Number two, please make sure that you download the mobile app for Daga Law Group Learning center and get your information. And if you're not following us on social media, on LinkedIn, please hit me up myself and Dago Law Group. And that way we can make sure that we keep you updated on everything that's out there. All right, so there's a handful of cases that I'm going to go through here just to put on your radar. Again, very low level, because one thing that we know for sure is that they're just on the agenda. So we can only look at what is leading up to these cases as we go forward here.
[00:02:18] And so the first one is one that we've been prepping for for a little bit now, because the argument for it was on October 15, 2025. And the decision is expected anytime now. That is case versus Montana, the Supreme Court, docket number 24 624. And this has to do with warrantless home entry on emergency and welfare calls.
[00:02:45] So why should you care about this case?
[00:02:49] This is about when officers can enter a home without a warrant under the fourth amendment analysis during an emergency or welfare check, such as, you know, things like a mental health crisis, a possible overdose, maybe domestic disturbance with unknown, unknown status, somebody not answering the phones, et cetera. And the aspect of. Of one of the exceptions to the search warrant requirement is the emergency aid excep. And this is specifically what we're dealing with here.
[00:03:22] The question that we need to make easy for you, and that's one thing we like to do here at Dega Law Group, is how certain do police need to be in an emergency? An emergency is happening before entering a home without a warrant. That's actually the question that's teed up. The question that's really focused to be teed up here is what level of legal application is necessary? Meaning that, you know, the question as you read it on the document says, is whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency aid exception requires probable cause. So the question that they're being asked here is, is really to tee up whether the emergency aid exception is satisfied by something like an objectively reasonable belief or whether the constitution effectively demands probable cause level certainty for entry, emergency entry, reasonable suspicion being at that 30% and probable cause being at that 52%.
[00:04:34] The fact pattern of this case, very briefly, and we'll get into it more once it's dropped, is that.
[00:04:41] And this is a topic that I've been. I've been talking about, because it actually, this case uses the 2025 Barnes vs. Felix case in its analysis.
[00:04:54] This is a deadly force case, but the issue on the table is not a deadly force case.
[00:05:02] The petitioner, the individual who brought the case, his estate, was shot by police officers in his home after his former girlfriend called the police to report what she believed, that he may have committed suicide. So she's on a phone call with him, suicidal, talk.
[00:05:23] He has a gun, tells her he has a gun. He. She hears a shot fired.
[00:05:28] Then.
[00:05:30] So she calls the police. The police come. What I really liked about this case is that the officers don't rush right in. They look through the window, they see a pad which he thinks he wrote a note on. They see a gun case, they see information. What gives them some information. Finally, they enter the house to check on him and when they do so they find him in an upstairs closet. When they enter the closet is pointing a gun at him and they shoot and kill him.
[00:06:01] The though the officers are familiar with the guy and suspect that he may in fact be either seriously injured or in imminent danger, they entered his home without a warrant about an hour after the call. And once in the officer, once in the house, the officers obtained evidence that the petitioner sought to suppress on the grounds that the officers were not lawfully present in the home when they found it. So they're, they're arguing that they had no basis to enter the home.
[00:06:33] The significance of this is what could the outcome mean for communities?
[00:06:39] What does law enforcement officers, if they need, if they only need a reasonable suspicion basis of an emergency happening with someone within someone's house to enter without a warrant or is there a fourth amendment protection against unreasonable searches within? Our homes will have a significantly larger loophole and could be increasingly used for warrantless entries in communities across the nation.
[00:07:04] What could change? What's the real world impact of this?
[00:07:09] Depending on how the Supreme Court rules just kind of shooting into the dark here, more restrictive emergency entry rules, it'll be harder to enter without a warrant or easier approval for quick entry based on an objectively reasonable emergency belief.
[00:07:27] The patrol guidance that we could give you here the things that we want to put on your radar as will be hot topics is build the emergency fax in your report before you cross the threshold.
[00:07:43] You know what were you told? 911 third party witness statements, time sensitive risk indicators, threat of self harm, screams, silence, medical crisis, child, elderly, vulnerability.
[00:07:58] Your observations, sounds, odors, visible injury, forced entry, weapons, blood, suicide notes, I'm going to kill myself, et cetera. And why waiting for a warrant? Make sure we articulate in your report why waiting for a warrant would likely risk death or serious injury.
[00:08:19] Number two, use the least intrusive approach consistent with safety.
[00:08:26] We know, knock and announce attempted phone contact, check other residents and witnesses, request EMS supervisor consult when time allows. I think this is one of the key aspects of this case I really like is that they, they took their time. Yes. Even though it was an emergency, they, they took their time and they're methodical. And that really I think will come back to help them if I'm being positive. Right.
[00:08:53] If you enter, what is the scope of your entry? Remember, the scope of your entry is the emergency.
[00:09:00] So if you're checking for people, then you're not looking for general evidence.
[00:09:07] The supervisor aspect to this is treat the emergency entry as a decision point.
[00:09:14] My interpretation of what I've seen to this point in this case is if the time permits require 1 articulation of facts, 2 supervisor notification and approval, 3 body worn camera clarity and 4 tight scope guidance.
[00:09:31] The message if I could put this into one sentence for you at this point, it would be emergency entry is justified by emergency facts. Write them down like you expect a judge to read them. Right. And that's what we're looking for and we should see a decision for this in the near future.
[00:09:54] Number two.
[00:09:55] Number two, in a case called Wilford versus Lopez, this is gun carrying and we're seeing a lot of Second Amendment cases that are popping up in the 2026 area.
[00:10:08] This is a Second Amendment case. The argument for this case is scheduled for January 20, 2026. It is docket number 24 1046.
[00:10:18] I would title this case Gun Carry Enforcement on private Property law open to the public.
[00:10:25] So let's drill down to what this means in the aspect.
[00:10:32] The issue is Hawaii law prohibits people from bringing guns onto someone else's private property without their consent.
[00:10:43] The challengers call this law a near universal restriction on handgun carry, and they say that it runs afoul of the Second Amendment.
[00:10:55] So the question presented to the Ninth Circuit, the question presented to the Supreme Court is whether the Ninth Circuit errored in holding in direct conflict with the Second Circuit that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier. Now, the significance of this case is that the case represents another test of how the courts will apply the Supreme Court's landmark 2002 decision expanding gun rights. Hawaii officials and their gun restrictions strictly abide by the Supreme Court's decision. The challengers say that Hawaii crafted the law specifically to negate the 2002 Supreme Court decision. So let's look at a couple of things.
[00:11:52] Why should patrol care about this cases? Well, this one directly impacts where licensed carriers can lawfully carry and how officers can enforce, quote, no guns default rules in places like stores, restaurant, malls, parking lot associated with businesses or other private property open to the public.
[00:12:15] Let's make this question a plain English question. Can a state make it illegal by default for a licensed concealed carrier to bring a handgun onto private property open to the public unless the owner gives express permission?
[00:12:29] What could change in the field? Well, if the Supreme Court strikes the Default ban unless permission approach then enforcement based purely on the default rule without posting signage, personal notice or the legal basis could become unconstitutional or invalid. And this is 100% dependent on state scheme. If the Supreme Court upholds this rule, states with similar what they call quote sensitive places, private property default rules may see stronger authority to enforce them.
[00:13:08] So patrol what could patrol guidance can I give and implement now while we wait for this decision?
[00:13:17] Separate criminal carry from trespass. That's the key.
[00:13:21] Many conflicts are really property trespass calls, right? The owner wants them removed or it's different from criminal gun carry violations.
[00:13:30] Your decision should track the actual statute and ordinance elements such as signage, rules, notice, consent rules, permit exceptions, et cetera.
[00:13:43] I would suggest based on my research, ask two key questions early.
[00:13:49] One, is this person otherwise lawfully carrying other than the trespass, are they lawfully carrying? And two meaning do they have a permit to do so or are you from a state that doesn't require a permit? And number two, what is the property owner agent's position?
[00:14:06] Explicit permission, explicit denial, posted signage or none. Right. Did they know this before entering the property?
[00:14:15] I would for the supervisors, as we wait for this drop to occur, I would, I would update your roll call scripts to ensure that you clarify your state's current rules today as to what the laws are for carrying and make sure that all officers are familiar with it and adequate.
[00:14:36] What we call a woeful watch. The legal landscape may shift in 2026, so probable cause articulation must be tight and fact specific.
[00:14:48] And obviously how this shifts could directly affect the application of the interpretation by other courts in criminal cases that are already pending. And that issue which happens when the law changes.
[00:15:06] All right, so let's go one more step further in the, in the application and that is a gun possession and drug use. And, and this is an interesting one because even as I'm taping this podcast, it might be a moot point. As you're all aware, President Trump has moved to change marijuana from a Schedule 1 to a Schedule 3 drug, which has a lot of implications.
[00:15:34] And by the way, the issue of marijuana has been a hot legal topic for many years. The Supreme Court three years ago issued just kind of like an administrative decision to say, hey could you guys figure this out please? Like why are, why are we still conflicted between state and federal law? But now here is a case that may be moot by the time it gets there.
[00:15:57] But the case is called United States vs Khamenei E H E M A N I the cert was granted on October 20.
[00:16:07] It has not been set for an oral argument date as the date I taped this.
[00:16:11] And what do we know about it? Well, the topic is a Second Amendment ban on drug users possessing guns.
[00:16:19] The issue is the administration has asked the Supreme Court to uphold a federal law that bars habitual drug users from possessing guns. Okay, how did we get here? Well, the significance is that the lower courts ruled for a Texas man who argued his conviction should be thrown out because the law violates his Second Amendment right to bear arms. The Trump administration, which generally supported gun rights, opposes the gun owner in this case. If the court strikes down the law, it could remove a significant restriction on who can possess firearms. The Trump administration has said hundreds of people are prosecuted under the law each year. One of those was, unfortunately, the son of former President Joe Biden, Hunter Biden, who was convicted in 2024 of violating the ban. So there's some political application that's applying here. Now, the key that I want you to pay attention to is that there have been significant Second Amendment Supreme Court law over the years dealing with the right of government to take away the rights of people to carry guns if they've been determined to be mentally challenged, mentally incompetent.
[00:17:40] Even last year there was a Supreme Court case in lower levels where they challenged where someone who was a domestic violence abuser challenged the law as to whether they could be limited from carrying a firearm if they've been convicted of serious physical assault. And the court upheld the fact that they can. So what we're talking about is defining Second Circuit application. So this.
[00:18:05] Why, why should you as patrol care? Well, this affects federal gun cases involving unlawful user or addict to a control substance. That definitely comes under 18 USC section 922, subsection G, subsection 3, a charge that commonly appears in joint narcotics and firearm investigations where the feds take over a state case because of possession of a firearm by a felon. And the significance of possession of a firearm by a felon, as you know, that mandatory minimum five years is applicable.
[00:18:45] What could change depending on this case?
[00:18:47] Depending on the ruling, Section 922 could be narrowed. It could require more individualized dangerousness proof or become harder to charge in some scenarios. Or the court could uphold it, reinforcing the current level of enforcement.
[00:19:06] What patrol guidance can you implement now? What would be important to start putting into play while we're waiting for this application? So, number one, the drug user and gun, those two go hand in hand. Needs proof of timing and pattern.
[00:19:26] Even today, these cases often rise or fall on the recency and the regularity of use, the documentation of that admission where, you know, obviously Miranda may be required and collaboration tox results, admission of narcotics usage at the time carrying occurs evidence. Is that evidence supported by drug paraphernalia, fresh drug evidence or credible timeline build.
[00:20:00] My advice to all of you, since I like to get my hands dirty with you in that way, build the record for the prosecutors if your case involves drug use and gun possession. And obviously that's a hot topic now. You know, document why you believe the person is a current user, not just something like, hey, I found weed on him. Okay. All right, well, this is not an everyday occurrence today, right?
[00:20:26] Preserve evidence. And boy, that evidence could be a lot. It could be, you know, drug user.
[00:20:34] It could be, you know, drug paraphernalia, fresh drug evidence, credible timeline Bill, when you're building your record, make sure you, you preserve your electronic evidence, you know, text messages, social media posts, if lawfully obtained.
[00:20:52] Keep the chain of custody clean for any drug evidence and firearm evidence. And, and you know, oftentimes in these analysis, the thing that gets challenged the most is the nexus connection. Right? So that is part of the operational issues and the challenges that we're looking at for supervisors. The thing that, that you can focus on for, for application is if your agency works with federal partners, you know, expect strategy discussions while Jimene is pending. Right.
[00:21:30] You should already be talking to your prosecutors. The people that are on task force and dealing with these should already be talking to prosecutors about how they want to double down on this evidence here. So those are the ones that we know for sure that are coming at this point in 2026. And as you can see, really the three applications of, of Fourth Amendment and some drug application with Second Amendment analysis. There is another case that's bubbling up is a first Amendment fourth amendment case that I think will get a writ of certiory guided, which will make another first amendment application case.
[00:22:15] And this case has to do with what we're talking about.
[00:22:21] This is Texas and this is religion and the application of what relief comes in retaliatory application. So that case is called Oliver versus the City of Brandon. It is a First Amendment 14th Amendment section 1983 cases.
[00:22:41] The issues are whether the Fifth Circuit holds in conflict with the Ninth Circuit and Tenth Circuit. So we have a confliction of circuits.
[00:22:53] The court's decision in Heck vs. Hemphrey, which bars a 1983 claim seeking purely prospective relief where the plaintiff has been punished before under the law challenging as challenged as unconstitutional, and second whether the Fifth Circuit and at least four others hold in conflict with five other circuits, claims that the plaintiff even where they had access to federal habeas relief. So in this situation, Mr.
[00:23:21] Oliver is a Christian who feels called to share the gospel with his fellow citizens. He's being arrested in fine for violating an ordinance targeting protests outside of a public amphitheater. He brought a 1983 suit under the first and Fourth Amendment to declare the ordinance unconstitutional and enjoin its enforcement against him in the future.
[00:23:46] The Fifth Circuit took the case and applying the precedent construing its court's decision in Heck vs. Humphrey, which is a Supreme Court 1994 decision, held that Oliver's prior conviction barred his Section 1982 suit because even the prospective relief it seeks would necessarily undermine his prior conviction.
[00:24:07] The Fifth Circuit in this case acknowledges the friction between the decision and those of the Supreme Court and other circuits. So that's nothing new to the Fifth Circuit and I think that we'll see that in its application.
[00:24:25] Other Hot topics on There is another Second Amendment case which possibly could get weighed in granting a rid of certiority called Vermont versus County Cook county has to do with a Second or Fourth Amendment guarantee on the right to possess an AR15 platform and similar semi automatic automatic rifles.
[00:24:48] There is a Fourth Amendment issue in the Second Circuit's qualified immunity application which I think will have serious implications and hope that this actually is applied for evaluation as to the implications of all of the state statutes on qualified immunity.
[00:25:09] The Supreme Court has said that's here to stay.
[00:25:13] That case is called Zorn versus Lynton. And then finally a case called Smith versus Scott, which is a Fourth Amendment excessive force qualified immunity case having to deal with prone positioning on a body weight, pressure restraining a potentially armed and actively resisting individual only until handcuff could be accomplished and whether or not the officers acted reasonably and whether or not they whether the panel, the prior panel, errored in denying qualified immunity. And that's a 10th Circuit application, a very important case that I talked about in the prior podcast on this issue. So we are in tune for a fun 2026 season and I really, really like the fact that there are some very, very good cases that we can get our paws into and really deal with some of the hot issues that both you in patrol and you in supervision are seeing as we go along in the area. So I welcome you to 2026.
[00:26:23] I thank you for those of you that continue to listen on behalf of Dago Law Group and the wonderful team here that does a great job of supporting my desire to put out as much information as possible to you all and your to be your rock to deal with these issues and and how to apply them in decision making in its application. I really really really think that that is that is applicable. So as I end I'll look at this quick checklist from what I see coming out of 2026 emergency entry write down the emergency facts before entry, keep the entry narrowly tied to the emergency guns on private property, confirm the legal basis and don't confuse trespass removal with a carrying crime and then drug and gun users or gun and drug users. Document regularity or recency evidence and don't rely on a vague statement such as quote drug user labels. Get down into the detailed application as it applies.
[00:27:36] And so with that I will wish you a happy 2026.
[00:27:41] Hopefully you're following us on our app and the Dago Law Group Learning Center. Please remember there are single user applications. Just because your department doesn't want to get training from either our weekly path of the department, a path of the Guardian 10 minute video series where I break down videos weekly or the supervisors continued education which is a which is a block of instruction every month on dealing with hot topics that are faced across the country doesn't mean you can't and and that is a pay application but we try to keep it reasonable in order to keep your education where it needs to be. So I will end this one as I'm thanking you for your listening as I end them all.
[00:28:28] Please help those who need your help protect those who need your protection and most importantly please keep yourself and others safe. Thank you. Be well. See you next time.
