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The Indiana Supreme Court Did What???

By: lineholder (Diary) | May 15th, 2011 at 11:29 PM |

RESIZE: AAA

Fourth Amendment of the Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This no longer applies in the state of Indiana. On Thursday, the Indiana Supreme Court ruled that Hoosiers have no right to resist unlawful police entry into their homes. Any Hoosiers out there, I hope you’re reading this because you just lost the right to safety and security in your own homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.” (emphasis mine)

So if a police officer wants to, they can walk through your front door any time they feel like it. They don’t have to have a reason. If you resist against this, YOU get arrested.

And no, they don’t even have to knock. The same Indiana Supreme Court had thrown out that little piece of common courtesy earlier in the week.

I guess the “public policy” thing is supposedly “what’s best for society as a whole”, right? Where have we heard that one before? And the “modern” jurisprudence translates into the “living Constitution” interpretation…you know, that totally insignificant document on which the laws of our entire nation were originally structured that some modern-day intellectuals seem to believe is so archaic that they have to put their own new interpretations on it every time they get a chance.

This is unlawful entry that is being sugar-coated to make it seem lawful by the judicial branch negating what was written in the Constitution.

I hope Hoosiers will push through appeals and beyond as hard as they can.

COMMENTS

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acat

First they take your house, now they can enter whenever they like.

Waiting for ‘em to start taking over guest bedrooms and home offices to save on barracks costs.

Mew

lineholder

The judges that ruled for this knew exactly what they were doing. They knew that they were throwing the 4th Amendment rights of the citizens of Indiana out the door.

And they didn’t even blink an eye in doing it either.

acat

(note to self – cancel vacation in Indiana, go to Wisconsin instead)

20jan2013

It is one of only two gun-free zones among our 57 states.

powertothepeople

is it snark or are you referring to there no concealed weapons policy or the gun free school zone law?

There gun laws, other than not allowing concealed weapons, are not the different from most other states. People can own them, use them, etc. They do not allow concealed, but ironically, they have no law restricting the carrying of weapons in the open.

Explain this one for me since I am obviously missing your meaning.
20jan2013

Yeah, one of only 2 states not allowing law abiding citizens to exercise their right to bear arms, and a mocking use of the liberals’ “gun free” terminology along with a mocking use of Barry’s “57 states” mistake.

I should have been clearer…and more productive in making the positive recommendation to acat to vacation in Ohio or Minnesota instead. Illinois is out because she and her twin sister California are in yonder handbasket on their way to a warm destination.
powertothepeople

but just so you know, two court rulings deeming the ban on concealed as being unconstitutional gave the republican controlled congress the motivation to push for and draft legislation allowing for permits to be issued. Once it passes, Gov Walker has stated he will sign it. Within a few months, the only state that will not have some sort of law allowing concealed weapons will be IL.
20jan2013

now that the Communists have lost power in Wisconsin, the law will be passed this year. Maybe in time for acat’s vacation.

It may be a less restrictive law than the bill Doyle vetoed; the support in the legislature was there even before the watershed Republican wave of 2010. They might even go Vermont no permit-style.
acat

it has much to recommend it as a vacation destination. Note that some Wisconsinites have been practicing “open carry” to protest the ridiculous no-concealed-carry-permits laws. Literally walk around your yard with a firearm in a holster. (not necessarily loaded)

Wisconsin suffers mightily from a history of union hero-worship. Fortunately, the modern unions are doing their level best to scratch the shine off that history, and the State may well go more Red in the future.

Hint for those shopping for a new POTUS candidate… Minnesota and Wisconsin have several things in common…

Mew

20jan2013

Literally, if you get pulled over in Chicago, you don’t pull over, you just stick your badge out the window and proceed.

I have never been a Chicago cop.

But I know things.

acat

although – if there’s witnesses they will, sometimes, give warnings.

Hint – cat doesn’t vacation in Illinois, he lives there.

Iowa and Minnesota are both a bit far for a long weekend… not to mention expen$ive, gas-wise.

Mew

Doc Holliday

no wonder they are all powerful.

morostheos

I really didn’t need any more reasons to look elsewhere but this definitely seals it.

morostheos

Meant to include a link. http://www.in.gov/portal/news_events/57605.htm
20jan2013

If Newt and Mitch think the Huckabee supporters are going to flock to either of them, they got another think coming. It’s looking more and more like T-Paw, Palin, and Bachmann are going to be fighting over us.

Romney should save his money and drop out now, but thankfully he won’t and should draw support away from Mitch and Newt (whew!).

20jan2013

I want to go on record that Tim Pawlenty will be the next president of the United States. Not just the Republican nominee, but he will WIN.

Having said that, I am not supporting him yet at this time. I am uncommitted.

izoneguy

In a 3-2 decision, Justice Steven David, writing for the majority, expressed the view that:

a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.

http://www.examiner.com/libertarian-in-national/indiana-supreme-court-citizens-have-no-right-to-resist-unlawful-police-entry

Justice Steven David is a Daniels appointment.

LibertarianHawk

But the practice of dinging elected officials for the decisions made by their judicial nominees can get awfully slippery.

Ronald Reagan nominated Sandra Day O’Connor and Anthony Kennedy to the Supreme Court. Shall we go down the list of decisions these justices have made?

I’ll start with Kelo v. City of New London (which found Reagan nominee Kennedy joining Breyer, Ginsburg, Stevens, and Souter), move on to Casey v. Planned Parenthood (where both Kennedy and O’Connor upheld the right to abortion), and finish up with good measure at the twin Bollinger cases (where O’Connor was the deciding vote to uphold affirmative action).

Based on this, Ronald Reagan should be excommunicated from the conservative movement for nominating such people to the high court….

….or something like that.
oldbird77

is the reason for taking appointments so seriously…hopefully Daniels can learn from this and not make the same mistake if given the chance again.

Doc Holliday

just a few days ago you went on record for Huckabee. Don’t you think you aught to build a record here before you risk it again?

Menlo

It seems to me to indicate a DEAD Constitution.

This doesn’t seem like a stretch from repealing the third amendment. I suppose the “law” schools are still working on that one.

glaucon

In their eyes, the Constitution is more of a “recommendation” than actual law.

steve010

This is a widely misunderstood court decision that really doesn’t change much. When police want to enter someone’s home for some reason and the occupants don’t want them to enter, it is a very big deal in any jurisdiction for them to enter the home without a warrant.

But once they are inside, what the court said is that you don’t have the right to fight with them. I agree. If you are stupid enough to leave the door open, so that they can get in, or if you invite them in (or at least they maintain you gave them permission), you can’t resist them which is really just common sense since why would you want to fight with people who have guns and you don’t.

The police in this case got sent over on a DV call by the wife. She changed her mind, went back in the house and there is some confusion over whether the wife gave them permission or the police just followed her and the husband in, but then the fighting started. She was the one that called the police.

I think the knee jerk reaction here is for people to say, hey wait a minute what you are saying is that if police come by my home for no reason, they can just break down the door and come in my house, throw me on the floor and arrest me, no that is not what that court said at all.

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

must have complete authority before court appearance. We can’t have the authority of the badge compromised our we will have anarchy.

acat

that’s fine. Otherwise, as you well know, GC, the authority of the badge must be in compromise with the rights of the citizenry, or we will have totalitarianism.

Mew

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

when you demand to see a warrant on the scene, I would suggest that you so or shout right to counsel! Counsel represents you in court, not on the scene.

acat

an argument I dislike, as it opens the door to a number of problems including but not limited to police on “fishing expeditions”, harassment-by-cop, restraint-of-trade if they’re disrupting my home business, etc. etc.

What you’re saying is reasonable in a public space, or in the case of a traffic stop – although I have been pulled over by cops on “fishing expeditions” as well – but I disagree in the case of a cop entering my house without my permission.

For the record, I’ve also had a building inspector who wanted to go poking around in an area that was not covered by his “warrant”, the building permit.

Mew
http://908StraightSt.wordpress.com/ mbecker908

and I have not read the case, so I’m basing this comment on what I’ve read in this thread, the key here – from my perspective – is the DV call.

Here in Arizona, make a DV call to 911 and the police have almost unlimited rights of entry and search and someone will go to jail. If it was a DV call, my concern is dropped way down.
lineholder

It is a specific situation that grants police officers greater leeway under the law. The ruling in this case could have included qualifiers, and the two dissenting judges argued for the inclusion of qualifiers.

The three judges who defined this ruling deliberately chose to ignore the inclusion of any qualifiers.
http://908StraightSt.wordpress.com/ mbecker908

Thank you lineholder.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

that is a total outlier on the facts in a state (SD) that, unlike IN, at least had a statute. This case changes nothing on 4th amendment law. Searches that were illegal yesterday, remain so today. You will search in vain for any state law that confers a right to citizens to use force against a cop to defend property.

Period, moving on. All my comments here are usually billed at $200/hr.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

is a 1900 SCOTUS case involving Indians, a SD statute, and the issue of whether the charge should be murder vs manslaughter, with a citation of common law that existed in England where they had no 4th amendment and other protections that we have. It is very obscure and very limited to its facts as evidenced by the dearth of citations in the two centuries since!

To empower citizens to use force against police is to resort to the law of the wild west.

Americans are protected by the 4th amendment and the rest of the Bill of Rights and of course can defend themselves if assaulted, even by a police officer. Juries will decide.

But to tell a citizen that they can be judge and jury and decide they have the right to use force against a cop if HE THE CITIZEN unilaterally decides that the police has no right to search him or his effects is to invite the breakdown of the rule of law.

We can agree to disagree.
acat

I am not arguing that a citizen should raise arms against the police.

I am, however, deeply offended at the idea that the police – with no judicial oversight – can enter a home on a fishing expedition.

This raises all kinds of red flags for me.

Again, I’m not a lawyer, and you are, so .. please boil this down into common English. Did citizens in Indiana just lose any rights, based on this ruling? Sure appears, based on my non-legal read, to me, like they did…. This appears to represent a rather large expansion of “probable cause”, if nothing else.

Mew
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

whether citizens have the right to assault the police if they decide in their own minds that a search is illegal and that they end up being right later that it was illegal. That is madness and the fact is that this issue is quite an outlier. You will search in vain for state statutes or precedent since 1900 in any significant way on this and even the 1900 case is very limited to its facts and it involved a statute. Moreover, the critics deride the fact that this court “overturned” Common Law. But my friend, this ruling is Common Law! Common Law is case precedent based on experience.
acat

and they come in anyway, my only legal defense is the court system?

Just wanting to be clear here, GC…..

Mew
aesthete

I have no idea about the legality of this sort of behavior, but the spirit of such would make the power of the police limitless. There have been cases in the past where criminals have disguised themselves as police officers to gain entry: in most cases to rob a house, but in another case rape was attempted. My house is my fortress: it’s up to me who gets to go in, and the burden of proof must be placed on the agent of the state when he is attempting to access my property.

This is the exact attitude that has led to the completely invasive policies that the TSA is engaging in: what’s next, “cavity searches” of teenage girls in full view of others? Gimme a break! Searches and government’s access to our property *must* be limited by due process: the rule of law is a two-way street, and a citizen must be able to know these processes and defend himself if he believes that something is amiss. Moreover, the consequences for malfeasance must fall on the police department and the LEO in question, rather than be socialized or eliminated by the “blue wall of silence”. (One good way to do this is to end public bargaining for cops, btw.) If a cop in uniform is acting in a way outside of the law — drunkenly beating his girlfriend while in uniform, for instance — a citizens’ arrest, or some other form of force on the part of citizens to stop the act, is appropriate and should not be subject to criminal penalty. The same consideration should be extended to citizens who stop police officers from going beyond the scope of their warrants; otherwise, you’re simply saying that cops can roam the streets like lawless brigands until after the fact in court.

If I were on a jury which were trying a case of this sort, I would vote to acquit any citizen who successfully resisted an unlawful invasion of his home on the part of the police (jury nullification having a proud history in common law for exactly such exigencies).
gpclaw

to address this issue at the local level. With the increased use of “no knock” warrants, and increased use of military like tactics, it may be worth addressing SOP of local law enforcement in these matters.

Should SWAT be used to serve warrants, if their is no one in the home with a police record? If they are authorized to enter the home, before they serve the warrant, should law enforcement be required to record their activities?

The practices of law enforcement need to maintain a balance between public safety, and liberty. This requires accountability, which won’t happen until citizens demand that the protection of their liberty, codified into law at the local level.
mspector

I write without having read the opinion, but to be clear on a fundamental issue:

Warrantless searches are generally presumptively illegal unless they fall into certain exceptions. In a DV case the apparent applicable exception would be exigency. However, that would not apply if the “fight” was not evidently going on at the time the police arrived.

A citizen is not obligated to consent to a search, particularly a search that involves entry into the home.

If the police think they have probable cause, the general rule is: “get a warrant”. Again, absent exceptions probable cause is for a magistrate not the police on the scene to determine.

All that said, I’ll refrain from comment on the opinion itself until I have read it.
Doc Holliday

but it seems to me people keep moving the goal posts to fit their argument. The OP said citizens have no right to resist entry. To me, that means they can’t even barricade the door. That is a far cry from attacking the police. I say all you guys figure out what the real terms are, and then argue on those specific terms.

One thing I do know is that if someone breaks down a door around these parts, he better be ready. It would be best to knock.
steve010

Administrative searches are like the citrus canker inspectors in FL. They go around the neighborhood, opening fences, going in backyards and looking for citrus trees. Kind of dangerous for them, but totally legal because they are only looking for one thing, they aren’t actually “searching”.

This is the same logic that the TSA uses and it kind of musters the law because they aren’t sworn police officers and they are only supposed to be looking for weapons and bombs. Of course, this is a great example of the “inch and mile” rule with police power. Give them an inch and they’ll take a mile.
mspector

Whether looking for one thing or several, a “search” involves any activity in which the police look for evidence of a crime. In this case, 4th Amendment law would not permit them to enter on property at random.

The activity you describe constitutes a search. If the areas the inspectors go into are enclosed areas immediately adjacent to the house 4th Amendment protection would apply under the “open fields” doctrine.

The only basis on which these searches could be legal would be if authorized by statute, but any such statute should be declared unconstitutional. These inspectors should be required to seek a warrant the same as in any other search situation.

e_rowe

And lawfulness isn’t something anyone can “decide,” whether that be courts or citizens. Lawfulness is something that has been decided by the creator. As with all other fields of science, our job is not to make up laws, but to discover the ones that already exist. One essential aspect of the creators laws is that there is no double-standard where one law applies to government agents and another to everyone else. What is theft when I do it is theft when they do it. What is kidnapping when I do it is kidnapping when they do it. What is murder when I do it is murder when they do it. And when you break into someone’s home, you’re asking to get shot, badge or no badge.

mriggio

I disagree, and apparently so does the Indiana Supreme Court which held they now longer recognize the right to reasonably resist unlawful police entry into a home. Hoosiers may no longer block entry to police entering a home for any reason or no reason at all. They based this on the common law history, which the court decided is archaic, because now you can easily get bailed out after arrest and pursue relief in the civil courts. The dissenting judges point out the Fourth Amendment, which seems inoperative now in Indiana, with the court majority obsessing over reducing violence rather than enforcing Constitutional protections. So basically yes, the cops can now illegally break down your door and haul you away, but, don’t worry, you can always sue them later.

steve010

http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf

The court did not say that you have to open your door to the police. The court did not say that you have to answer the door if the police come to the door. The court did not say that you have to talk to police, as that is 5th amendment right. That is legal resistance. What they said is that if the police make an illegal entry, you can’t fight with them. Just common sense.

One of the best of examples of instances of ?illegal entry? is the classic noise complaint call. Police come by a home or apartment on a neighbor?s noise complaint because of a loud party or gathering. Somehow the police get into the home and then the fun starts. They look for drug paraphernalia, do illegal searches, arrest people for underage drinking and some resisting arrest and disorderly conduct beefs result.

But the big question is: How did they get in the house? Because someone went to the door and opened it. Now, if that someone had gone to an adjacent window and talked to them through the screen and agreed to turn down the noise, that would have been it, but if you open the door to the police, expect them to try to get in the home. Even with talking to them through the window, expect them to threaten you with all types of bogus legal actions, if you don?t let them in. And think about this, if police have a warrant, do they ring the bell? Police are allowed to lie to you. Would they break down the door in this instance to get into the home? Highly unlikely, if the occupants turned down the volume, because this is just a municipal ordinance beef or misdemeanor at best.

morostheos

My opening the door to determine who might be outside or to simply have a conversation does not constitute an invitation to come inside whether a court thinks so or not.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

sets the standard for reasonableness re searches and seizures (sometimes requiring that warrants issue). Courts throw out charges all the time due to unreasonable actions of law enforcement and civil juries award damages.

But to create a situation of equality in deciding what is reasonable on the scene between the suspect and the Law is to invite chaos and end of law.

lineholder

Please, check it out. The 2 dissenting judges attempted to place qualifiers on this ruling, such as the police could enter in situation where life might be threatened due to abuse, etc.

The three judges involved in this ruling deliberately and intentionally refused to consider it. They went with the much broader ruling instead, which essentially strips away 4th Amendment protection rights of the citizens in Indiana.

They didn’t have to go that broad, GC. The judges had other options. They chose to put a ruling into law that makes unlawful entry “legal”. With no qualifiers. None.

That’s may not concern you, but I find it very disturbing.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

defending themselves against assault. see my further comments above

I also think the 1900 case precedent is quite obscure and limited (although it was statute in that case and not just common law). But if that were the law today, it should be changed. imho
lineholder

Even though the ruling judges had other options?

Yeah, okay. No offense, GC, but I can’t in good conscience do that because I think this slow eroding of the rights we do have leads to a general apathy and complacency when it comes to protecting and preserving those rights.

I’d rather the judicial branch apply common sense in placing qualifiers into the law that will preserve those Constitutional rights rather than going too broad, like what has taken place in this case.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

still applies as do civil rights acts section 1983 etc.
lineholder

allow unlawful entry. It’s right there in his statement. If these judges are willing to violate unlawful entry vs. lawful entry, do you really think violating unlawful search and seizures, if they deem it appropriate public policy?

It’s a “collectivist” mechanism, where the rights of the individual are diminished for the sake of the rights of society as a whole, via the claim of public policy, as it is interpreted by these three judges.
aesthete

it just won’t ever interfere with government or police station conduct and allows for a limitless grant of power to fellow citizens just because in addition to their (mostly poor) training, they were given shiny badges.

lineholder

As this law is written, they have the right to come into your home, even in you are not there. That’s how broad this ruling is.

Was it necessary for the ruling to be this broad? No, which is what the dissenting judges attempted to present but were over-ruled. The dissenting judges attempted to have qualifiers placed into the ruling. The three judges who made this ruling deliberately and intentionally went with the broader ruling.

Suppose at some point down the road, a judge in IN decides that the 2nd Amendment isn’t applicable. That is against public policy and “archaic” and that all guns owned by private citizens should be confiscated. Putting that ruling in line with the one that has just been made, the police could come into your home, when you are not present, and confiscate a gun you might own.

This ruling leaves the door open for many things, none of which are as positive as they might seem to be.

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

get to play judge on the scene and use force against cops. Remedies remain against unlawful searches and seizures by police.
http://havegunwillvote.blogtownhall.com/ cmndr45

specifically about expanding those rights.

Your entire line of thinking on this subject seems to suggest that prior to this ruling, citizens had the right to use force against police officers legally entering their home. Correct me if I’m wrong, but if an officer is serving a search warrant, that has been issued by a judge, and a citizen resists, they are arrested and charged additionally with resisting arrest.

This ruling changes nothing outside of getting rid of the pesky “warrant” portion of the 4th amendment. Now there is no differentiating between legal and illegal searches. It also leaves cops on the scene to play judge instead of going through proper channels designed to prevent these types of random and unreasonable fishing expeditions.

Sounds like you believe the rights of those tasked with enforcing laws are somehow above those citizens that are bound by them.
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

the exclusionary rule and civil remedies still applies. This ruling does not expand the substantive scope of the exigent circumstance exception to federal case law re warrants for searches of homes. Moreover, if you will look closely at the 4th amendment, you will find that it imposes no rule re warrants. The rule is reasonableness. If the warrant language were actually a rule, you would not have the exigent circumstance exceptions.

Finally, you will search in vain for state statutes that confer a right to of a citizen to use force against a cop if the citizen decides that the search is illegal. Hence the lack of any precedents after 1900.

This case was a total aberration.
GregInFla

I don’t want to pay a law firm thousands of dollars to clear my name from the actions of an overzealous police officer. I may know some lawyers, and I’m sure they are good people, but I don’t want to pay for the justice that should be mine without any cost. Maybe as a lawyer, you see it as new business, I don’t know, or maybe jsut everyday life. But it’s not that way for me. And I know that suing the police department afterwards is a no-win situation, except for the lawyers.

OP says that dissenters wanted conditions. That makes sense to me.
e_rowe

Rights aren’t things the state can confer to us.

It’s the other way around. The only rights the state legitimately has are those we confer to it.
mspector

The 4th Amendment specifically states that the people have the right to be secure in their homes against “unreasonable searches and seizures” and that “no warrant shall issue, but upon probable cause.”

4th Amendment jurisprudence has consistently held that this means that a search without a warrant, especially a search of someone’s home, is presumptively unreasonable. The same jurisprudence has extended considerable protection to searches conducted pursuant to a warrant, even upholding searches where the warrant was defective but relied upon in good faith by the police (Leon v United States).

If the police had a right to enter Barnes’ home without a warrant it was only on the grounds of exigency — the situation created by DV in the home. Did they overreach? Perhaps. That remains to be decided. But I agree that what the decision really says is: once they are in, you cannot resist with force. Nobody is under any obligation to open their door or consent to the police coming in, though in a DV situation they may come in anyway (imagine the response if they simply walked away and the woman was killed!). But if the situation is calm and there are no weapons in plain view and within the immediate control of the suspected abuser, in all probability the police would simply leave; there would be no evidence that the supposed exigency still existed.
steve010

it is madness to fight with the police or to even brandish a firearm even in your own home, if you know or suspect it is the police.

Look at the case in Tuscon last week, where an ex-marine got shot 71 times by swat team in his own home. He didn’t even fire at them. The police went home to their families and the homeowner is dead. I’m on the side of MGCD, Say only four things to police.

Am I free to go?
Am I under arrest?
I don’t want to talk until my lawyer gets here.
I don’t agree to searches.

Go down to booking, get out on bail without any bullets in you and let the judge sort it out later. This is much more peaceful.
lineholder

The biggest issue in this ruling is not respect for the police. It’s that the judges who made this ruling had other options presented to them that would hold certain lines in place regarding the rights of citizens under the 4th Amendment. Those judges chose to go with the broader spectrum ruling. They didn’t have to. It wasn’t necessary. They could have followed precedent that has already been set in other states regarding inclusion of qualifiers into the ruling.

In the process of going with this broad spectrum definitive ruling, they stripped away this portion of citizens rights under the 4th Amendment from the people of Indiana. And it was deliberately done.
http://www.2010blog.net jsanzone

Protection against unreasonable searches and seizures will probably be better defined if and when the need arises for it–if, say, an Indiana police officer enters a home without a warrant or without permission and uses evidence from that entry to make an arrest. Obviously, any judge in a free society would discount that evidence and probably invalidate that arrest.

Thankfully, we have civil means to bring legal challenges to the actions of police officers. This isn’t a dismantling of the rule of law.
GregInFla

not my choice. I say keep the door closed. This decision says they can enter when i say no. Is this Soviet USA?
steve010

“When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do,” Alito wrote. “And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door to speak.

Now, in this case the police were chasing a known crack dealer into a housing complex. The guy ran down a hallway where police lost sight of him. When they got to the hallway, the guy was gone and they weren’t sure which apt. he went into, so they listened at some of the doors and determined that the crack guy was in there and broke in after knocking. Police said they were acting on exigent circumstances where they believed the crack guy was destroying evidence. The SCOTUS upheld the search because of the exigent circumstances, but said that occupants have no obligation to answer the door. Unless leo has some reason or exigent circumstance, he can’t break down your door.
http://impudent.edublogs.org/ kyle8
steve010

I have one at my door and in the interior that are activated by motion. Not very expensive. If police decide to create an exigency at my home, the judge can determine it real easy. However, I’ve never had police try to gain entry. I’m too boring. Maybe someday they’ll come over to beat down my door for writing on Red sTate, but hasn’t happened yet. If it does. I’m ready with my “armed to the teeth cameras.”
GregInFla

and you’ll be arrested in many states. If laws get passed forbidding you to record your interactions with police officers inside your own car (your property), is it a stretch to have laws extend this to your home as well? Florida and Illinois are tow states outlawing protecting your rights in your car.
steve010

what Stossel said about people being detained or arrested in these states for recording the police, no one has been convicted of wiretapping charges anywhere except Illinois. ACLU is fighting that through the federal courts.

Only in Massachusetts and Illinois is it illegal for people to make an audio recording of people without their consent.
gpclaw

You need to check your states wire tapping laws, and any state specific laws pertaining to the recording law enforcement officers. Many states make this a crime.

You may be boring, but you’re making the assumption that just because you don’t give the police a reason to raid your home, that you have nothing to worry about. Their are more than enough instances of the police raiding the wrong home, for one to be concerned. Add to that, the increase in “no knock” warrants, and the use of SWAT to issue the warrant, even when the suspect has no criminal record. Mistakes will be made.
steve010

The Wahpeton Police officer who arrested a teen who was videotaping him earlier this month has been suspended.

Officer Dustin Hill has been suspended for five days without pay beginning May 13. He will also be required to take forty hours of remedial law enforcement training with an emphasis on Wahpeton municipal ordinances, the North Dakota Century Code, and the Constitutional law. He has been notified that any future incidents of a similar nature will lead to his termination.

http://www.valleynewslive.com/story/14661067/whapeton-police-officer-suspended
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

precedents that no other state except South Dakota (which at least had a statute in 1900) that conferred upon home occupants the right to use force against a cop if they think a search is illegal. It is a total outlier anomaly in the law that has had no role in 4th amendment jurisprudence. None.
morostheos

This is twice you have mentioned that we don’t have to open the door but I’m still not understanding what that has to do with it. Just because someone opens the door when a police officer knocks (or anyone else for that matter) doesn’t mean I’m giving them permission to come inside and/or conduct a search. What am I missing?

(And for the record, I agree that resisting absent imminent danger is foolish but with a court ruling like this in which one of the Justices says that police can enter for “any reason or no reason at all”, it doesn’t give me a lot of confidence that the courts are going to come down on my side if it turns out the entry was illegal.)
steve010

because if you go to the door, open the door to talk to the police and they force their way in or just kind of slip in past you, you can tell the judge that you didn’t give them permission to come in, but now it’s your word against theirs and unless you have a video, their word wins. Back in the mid 90′s, I asked a defense attorney, how come police don’t videotape this stuff, then there wouldn’t be any question and his reply to me was, “Why would they do that? Then they couldn’t lie about it later.”

If you don’t open the door and they bust it down, to get in, then it is evident to the judge and everyone that you didn’t give them permission and now they have to explain why. There might be exigent circumstances, but there might be the case where the cops manufactured the exigent circumstance. If the cop maintains you gave them permission to come in, you can’t argue the manufactured exigent circumstances.
morostheos

So you are not saying that answering the door automatically forfeits your right to deny entry but rather that it makes it easier to prove the entry was denied after the fact. Makes sense although the court making that observation seems odd since it assumes that the police are not trustworthy (which I generally assume them to be).

Thanks for the clarification.
steve010

that is why I have never been on a jury even though I’ve been called a few times. I just tell the attorneys that I can’t believe anything the police say. then they tell me to go home.

edintexas

If what was left out of the quote, covered by the elipsis here: “?We believe ? a right to resist an unlawful police entry” (proper elipses beginning and ending left out) was something along the line of “under the extant circumstances”, then you are absolutely correct. On the other hand, if the decision (as quoted) did not limit the decision to only those circumstances, then it is an open invitation to abuse.

With domestic violence allegations involved, most PDs are afraid of being accused of ignoring female pleas for help (I know, females are not always the victims, the media and activists [but I repeat myself] only make it seem that way). As a result of this essentially PR fear, they will sometimes go to extremes which wouldn’t be found in other complaint categories.

lineholder

The two dissenting judges attempted to argue limitation of this ruling on the logic that it could include qualifiers, such as cases where life may be threatened due to abuse. The court could have stayed within those limitations which would at least have kept the primary functions of the 4th Amendment in place.

The three ruling judges deliberately and intentionally chose to go with a broad response, knowing full well that it does constitute unlawful entry.

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

given the defense’s explicit citation of the 1900 case, I don’t blame them for making new Common Law and explicitely rejecting any suggestion that a citizen should not respect the badge at the point of contact. You will search in vain for any jury instruction of this so-called right to use force against the police any any state. And rightly so. All 4th amendment protections remain because this case has nothing to do with the 4th amendment. All searches deemed unreasonable yesterday are still so today and all remdies remain. Moreover, one still retains the right to defend one’s PERSON in self edefense from an illegal assault. But this is a property case.

http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

I have been busy with actual paying legal clients! Some final thoughts:

First, this “right” in the Magna Carta has never been part of Fourth Amendment jurisprudence in the US except in very rare and obscure cases of Common Law in a few states and in only one state statute. So any suggestion that the rejection of it by a court due to a clever legal argument somehow changes what the 4th amendment has meant in the past or will mean in the future is inaccurate.

Second, the warrant requirement in the 4th amendment is quite vague and subordinate to the main requirement of “reasonableness”. The case law has carved out so many exceptions to the warrant requirement under the exigent circumstances that even lawyer owners of homes subject to a warrantless search would not be expected to be so confident as to the legality of a proposed search to justify a resort to violent resistance to a cop even with all the facts, and of course a suspect could not possibly know all the facts that a cop would have.

So even if one accepted the premise of the Magna Carta property owner/tenant “right”, you would be empowering citizens to stand on equal ground with a officer of the law. You would be making him a judge and jury or a Texas standoff everytime a warrantless search was executed.

Police will always make mistakes. Our system of trial by jury and appeals has proven the envy of the world. Do we really want to carve out a portion of the law and assign private citizens the role of equality with a cop? Especially when we have the exclusionary rule and civil damages remedies that this case affects not an iota? It would be asking for trouble where it doesn’t exist and with the result being no fewer illegal searches than there are now…which is few. Moreover, it would lead to more confrontations that would increase the deaths of cops and home denizens.

As a criminal defense lawyer for 3 decades, one of the best pieces of advice I give clients that want to argue with the police of the streets is that they understand that the issues will be decided in court and not on the streets. To send a message to people that they have the right to confront cops with force if they think the cop is acting wrong would be an invitation to anarchy. Remember that we are talking about the defense of property. The right of self defense against violence to persons remains.

If a cop doesn’t show a badge and tries to break in your home, the right of self defense and the reasonable person rule would still protect you.

I would say that the exigent circumstance doctrine re searches of homes and vehicles must be kept in check.
Flagstaff

The ruling says that homeowners can’t use force to keep police out of the home, even without a warrant. It doesn’t say they must welcome the police into the home, or even give permission for them to enter.

Doesn’t that mean we (if ever in this situation) should simply say, “Officer, I will not attempt to keep you from entering, but you don’t have my permission to enter”? (Sort of like a modern filibuster) If the response by the homeowner is “Come on in,” doesn’t he give up some 4th amendment protections by not protesting the entry? And unless there really are exigent circumstances, wouldn’t any evidence of anything found in a warrantless search be unusable in court?

And as an aside, does this make us even easier prey to home invaders who have access to clothing that looks like police uniforms?
http://www.examiner.com/x-1597-Charlotte-Law--Politics-Examiner Mike gamecock DeVine

a homeowner should verbally oppose a search unless they want to waive the right to exclude evidence.

e_rowe

Government agents don’t get a free pass.

For any court to say otherwise is utterly despicable.

grandma

Sorry, I didn’t see your diary here on this topic before I posted.

Lineholder, thank you for posting this.

Didn’t like Daniels before and dislike him even more now. Daniels appointed Steven David.
grandma

to serve a warrent, if they so deem it necessary.

http://www.nwitimes.com/news/local/govt-and-politics/article_ec169697-a19e-525f-a532-81b3df229697.html
Green_Lantern

What are these 3 judges thinking? Did you read the opinion? They reason that resisting an officer for any reason could cause an escalation of violence, where someone could get hurt. That’s why it’s OK.

See? It’s for your own safety. They know what’s best.

So now the constitutionality of laws is to be judged on safety, not on liberty.

This will get laughed out of the Supreme Court. And if it does not, then we truly have a broken system.

Because if the Constitution can say the sky is blue, and a judge can say “Blue = Red, therefore the Constitution says the sky is red, I have spoken”, and that doesn’t get overturned, then this country as it stands is finished. Finished.

So let’s say people come busting in the wrong house in the middle of the night. Your house. And you shoot one of the intruders and he dies. You find out shortly that it’s the police, if you’re still alive. And that they have the wrong house. Are you a “cop killer” because they are *allowed* to do that?

The police, according to the IN Supreme Court, can come into your house at any time, for any reason, or for no reason at all. But because things could get “violent”, you have no right to resist. So it’s for your safety, see? As as for the police, well you can trust them. All of them. And if they did have a couple of loose cannons, or made some mistakes, like killing your dog (happened last year), then that will come out in the investigation afterward where the police investigate themselves. And if there’s a mistake made in that, then it will come out during your trial. Because you can trust prosecutors and juries. And if you get a Mike Nifong as your prosecutor, well the law provides for plenty of appeals while you get raped in prison while your wife and little ones pine away for you at home.

lineholder

Mike is the lawyer, and I’ve read his comments. I think I understand where he is coming from, but there are still all sorts of questions running through my head. Does the “no cause at all” mean that there is no need for a search warrant? Is that SOP now for police officers in our nation? Are they not even required to go through the process?

If that’s truly where things stand, then we have a lot more work to do than I originally thought.
GregInFla

Same logic could be applied to defending one’s home. Don’t resist, so violence is minimized. Well, that’s just the wish of the armed robber: no violence or resistance (to them). For a great discussion on similar topics, read the “Intellectuals and the Law” chapter in Thomas Sowell’s “Intellectuals and Society”. That chapter is worth the price of the entire book.
gpclaw

Unfortunately, your hypothetical is much closer to reality than we would like to admit..

e_rowe

Kudos to all of you who disapprove of this decision.
johnnyd

That is all I ever get out of the progressive left on my local newspaper forums.

What if a conceal carry person went postal in a mall.

What if the streets turned out to be like the wild west if we allow conceal carry.

What if the police think there is a drug dealer in that apt, they need to be able to enter that apt unannounced for the good of the collective community?

What if this and what if that with no basis whatsoever that it had ever happened before, but it could happen, laws and constitution be damned.

RS

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