Posted on 09/20/2011 12:41:36 PM PDT by FunkyZero
The law used to allow a defendant to present the affirmative defense, if the entry or attempted entry was unlawful. If the entry was lawful, the affirmative defense never did exist.
The case is decided, fini. It was heard TWICE by the highest court in the state!
The Court has the power to make and change common law, so that form of the affirmative defense is gone gone gone.
The legislated affirmative defense now has a judicially created carve-out, and the legislature can amend the law to "undo" the holding of the Indiana Supreme Court.
So the Indiana Supreme Court went on to make law in the field of illegal entry.
I sense you have another line of thought in your remarks, and I think thre is no need to find the state of mind of the police conducting the entry. All of the reasonableness (state of mind) inquiry is viewing the defendant.
If the entry was lawful, but the defendant reasonably believed it to be unlawful on its face, I would expect that such a thing could have been usable as an affirmative defense, although it would rarely be applicable. The fact that a reasonable person would regard a search as facially unlawful would normally tend to imply that the search was conducted in unreasonable fashion, and was consequently unlawful. The only situation where such an affirmative defense would be meaningful would be if some condition, of which the cops were not aware, prevented the defendant from recognizing the legitimacy of the search. For example, suppose the defendant (target of the warrant) was a foreign national from some particular country, and the cops--being aware of this--got a warrant printed out in the common language of that country but unfortunately not in a language the defendant happened to read. The defendant should not be prosecuted for refusing entry to the cops who failed to give him a warrant he could actually read, but the fact that the cops didn't know what language the defendant could read should not imply that the search wasn't lawful.
Otherwise, do you agree with the importance of distinguishing between facially unlawful acts and acts which were facially valid despite being illegitimate? If cop #1 uses perjured testimony to get a warrant, and cop #2, without knowing of the perjury, uses the warrant to conduct a search, the search should be regarded as illegitimate but that doesn't make cop #2 a robber. On the other hand, if a cop tries to enter 742 Evergreen Terrace with a warrant which is written out for 547 Morning Glory Circle, and persists in trying to enter even after the discrepancy is pointed out, such a cop fails to be performing his official duties and should be regarded as the robber he is.
A defendant should be entitled to have a jury consider whether a cop seeking a warrant actually had a good faith belief that it would turn up particular evidence of a particular crime, and that all the evidence given to the warrant judge was truthful. Note that a meaningful inquiry into such a question may entail evidence from witnesses who had never been cross-examined prior to their appearance in trial court, so the fact that a judge signed off on a warrant does not imply that it was in fact issued on the basis of probable cause. Suppose, for example, that Officer Jones got a warrant for some address on the basis that drug activity had been observed there two months ago, but on cross examination in trial court he admitted that six weeks ago the landlord had called police to clean up a meth lab left by an evicted tenant, and he (Officer Jones) had been involved with the cleanup. Would not a defendant have the right (whether or not a judge would allow it) to have the jury consider whether Officer Jones really had good faith probable cause?
BTW, I would aver that for a judge should censor truthful arguments by the defendant is an abrogation of the right to jury trial. If an omniscient jury would acquit someone, but a judge withholds information from that person's jury so as to score a conviction, then the defendant's guilt wasn't decided by a jury--it was decided by the judge. For that matter, if a defense wants to argue that the jury should acquit him because the weight of the defendant's knife, in grams was less than the weight of a steam locomotive in ounces, the defense should be allowed to argue that, provided that (1) the defendant is personally willing to waive any claim of inadequate counsel, and (2) the prosecution is then allowed to inform the jury that there is no statutory relevance to the relative weight of the items in question. The jury should be entitled to make of the argument what they will. Most of the time, statutorially-baseless arguments will do nothing but annoy the jury. On the other hand, on those occasions where a jury would find a particular truthful argument compelling, such a finding would imply its relevance.
The foreigner who doesn't understand will have a different defense, in that he can argue to not meet the state of mind element required to make the criminal offense.
The castle doctrine isn't used to make criminals out of the police. It's only function is to provide an excuse for using force to resist entry. Any legal action against the police would proceed separately, and again, the facts in the hypotheticals you propose would come into play there.
The second paragraph has to do with how a trial is structured. Sometimes a defendant is prevented from telling the jury about relevant law, too. The system viciously guards its power, but generally has a good faith conviction that the structure of the trial allows for all the relevant information to be presented to the jury.
The case that I have in mind about the law is a defendant being prevented from showing the jury the controlling US Supreme Court precedent, Miller v. US. He was allowed to present that to the judge, but the courts are corrupt on 2nd amendment law.
That will be your call, but you have to understand the consequences of what you are doing if you're wrong. If they are police and you assault them be prepared to have the book thrown at you, unless you can give a damn good reason why you suspected that.
I think a lot of this will boil down to the circumstances and your previous record myself. If you're like me and have never gotten so much as a speeding ticket, then suddenly two men claiming to be police start pushing their way into your home for some bogus reason your chances of getting a pass for breaking their noses will be a lot better than someone with a record.
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