Posted on 05/25/2011 4:27:39 PM PDT by Sioux-san
A few years ago, two police officers were chasing a crack dealer at a Lexington, Ky., apartment complex when they lost sight of him as he ducked into one of two units at the end of a breezeway. Detecting "a very strong odor of burnt marijuana" coming from the apartment on the left, they figured that must be the one, so they banged on the door and shouted, "Police!" Hearing "the sound of persons moving," the officers later reported, they feared evidence was being destroyed, so they kicked in the door.
It turned out to be the wrong apartment, but inside the cops discovered a guest smoking pot and, during a "protective sweep" of the apartment, saw marijuana and cocaine powder "in plain view." A more thorough search turned up crack, cash and drug paraphernalia.
So much for the alleged destruction of evidence. So much, too, for the doctrine that a man's home is his castle, not to be forcibly entered by government agents on a whim or a hunch. Last week, the U.S. Supreme Court said the "exigent circumstances" that exist when someone might be flushing drugs down a toilet allow police to enter a home without a warrant, even if their own actions create those circumstances.
As the lone dissenting justice, Ruth Bader Ginsburg, noted, this decision "arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases." Instead of "presenting their evidence to a neutral magistrate," they can retroactively validate their decision to break into someone's home by claiming they smelled something funny and heard something suspicious.
While the U.S. Supreme Court said police may force their way into a home to prevent the destruction of evidence, the Indiana Supreme Court, in a less noticed decision issued the week before, said police may force their way into a home for any reason or no reason at all. Although the victim of an illegal search can challenge it in court after the fact, three of the five justices agreed that "there is no right to reasonably resist unlawful entry by police officers." They thereby nullified a principle of common law that is centuries old, arguably dating back to the Magna Carta.
The case involved Richard Barnes, whose wife called 911 in November 2007 to report that he was throwing things around their apartment. When police encountered Barnes outside, he shouted that they were not needed because he was in the process of moving out. His wife emerged, threw a duffle bag in his direction and told him to collect the rest of his belongings. When two officers tried to follow the couple back into the apartment, Barnes blocked the way, while his wife said "don't do this" and "just let them in." Barnes shoved one officer against a wall, and a scuffle ensued.
After he was convicted of battery on a police officer, resisting law enforcement, and disorderly conduct, Barnes appealed, arguing that the jury should have been instructed about "the right of a citizen to reasonably resist unlawful entry into the citizen's home." The Indiana Supreme Court could have ruled that the officers' entry into the apartment was lawful given the possibility of violence, especially since Barnes' wife had called 911 and arguably invited them in. The majority suggested as much but inexplicably decided a far broader question. "Because we decline to recognize the right to reasonably resist an unlawful police entry," the court said, "we need not decide the legality of the officers' entry into Barnes's apartment."
This backward approach suggests the justices were eager to repudiate a straightforward extension of self-defense that struck them as an outmoded impediment to law enforcement. Like the "sniff, knock, listen and kick" rule endorsed by the U.S. Supreme Court, the decision illustrates the steady erosion of security in the name of security, even in the setting where our right to be left alone is supposed to be strongest.
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Is there anything that remains of the fourth amendment?
Indeed. But we are living in a 'new' world now. This is not the United States of America.
They did not.
I meant to add: It’s a sad day when RBG is a voice of reason.
I have read this in multiple sources:
In a 3-2 decision, Justice Steven David writing the official response for the court stated, if a police officer wants to enter a home for any or even for no reason, a homeowner or any other person can not do anything to resist or block the officers entry into a private home. “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 resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties without preventing the arrest.” David Goes on saying a person arrested following a unlawful entry by police can still be released on bail and will be given ample opportunities to protest the illegal entry through the court system.
So what do I have wrong here?
The failed war on drugs is ridding us of the burden of being a free republic.
To everyone that supports this failed prohibition, pat yourselves on the back!! You have defeated our Founders and were able to accomplish what no enemy military could never do.....
I think Ruby Ridge and Waco taught us that the government can do anything it damned well wants to do, including murder us, without proof, trial or conviction....
if they are so inclined to do so.
>>the Indiana Supreme Court, in a less noticed decision issued the week before, said police may force their way into a home for any reason or no reason at all.
>
>They did not.
Functionally, they did:
“We hold that there is no right to reasonably resist unlawful entry by police officers.”
“We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.”
“Further, we note that a warrant is not necessary for every entry into a home.”
“Here, the trial court’s failure to give the proffered jury instruction was not error. BECAUSE WE DECLINE TO RECOGNIZE THE RIGHT TO REASONABLY RESIST AN UNLAWFUL POLICE ENTRY, WE NEED NOT DECIDE THE LEGALITY OF THE OFFICERS’ ENTRY[…]” ——— In other words, because we say there is no right [to bar entry] the jury may be kept uninstructed in the FACTS of the case, namely: the legality of that entry.
“In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law. Accordingly, the trial court‘s failure to give Barnes‘s proffered jury instruction on this right was not error.” ——— Notice the retro-activity of this, they NO LONGER hold the right to exist, so therefore it *DIDN’T* exist prior to this case; even though they previously cited United States v. Di Re (1948) and its quote “One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases…”
From the dissenting opinion of Justice Rucker:
But the common law rule supporting a citizen’s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.
It’s now called the Soviet Union ver. 2.0.
Nothing:
“We hold that there is no right to reasonably resist unlawful entry by police officers.” IS the second-to-last sentence on the first page of the decision. http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf
“Here, the trial court’s failure to give the proffered jury instruction was not error. BECAUSE WE DECLINE TO RECOGNIZE THE RIGHT TO REASONABLY RESIST AN UNLAWFUL POLICE ENTRY, WE NEED NOT DECIDE THE LEGALITY OF THE OFFICERS’ ENTRY[…]”
——— In other words, because we say there is no right [to bar entry] the jury may be kept uninstructed in the FACTS of the case, namely: the legality of that entry.
“In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law. Accordingly, the trial court‘s failure to give Barnes‘s proffered jury instruction on this right was not error.”
——— Notice the retro-activity of this, they NO LONGER hold the right to exist, so therefore it *DIDN’T* exist prior to this case; even though they previously cited United States v. Di Re (1948) and its quote “One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases…”
[/disgust]
From http://www.freerepublic.com/focus/bloggers/2720824/posts?page=82#82:
By posting "will be given ample opportunities to protest the illegal entry through the court system," you note that "[...] said police may force their way into a home for any reason or no reason at all [...]" is a false claim.Nowhere did the court affirm the right of the police to conduct random searches. Just because the court said there was no right to make a specific response to an illegal activity doesn't make the activity suddenly legal.
By the logic being used, if a court case ruled that a cop was wrong in just shooting someone for speeding, we'd have a chorus of FReepers claiming the case said that people had the right to speed.
I have as many questions about the ISC case as anyone, but that doesn't mean we should be making things up or acting like idiots.
No...they just pointed out that it was irrelevant to the case.
The courts have held in many decisions that it is up to the courts to determine reasonableness. So, if only the courts can determine reasonableness, what makes you, the individual think you can? You have no constitutional or legal basis to make that decision.
If an officer makes an illegal entry you can sue the officer and or sue the agency if it is improper. If the officer clearly illegally enters your home you can have him criminally charged as well as seek civil relief. If he does actually violate your civil rights you can have him charged federally.
So, tell me again where our 4th amendment rights have been diminished? I think the courts clearly spelled out the time and place for the challenge (courts) and how, in a civilized society, you should behave.
If there was no recourse for relief as mentioned above, then I would say our 4th amendment rights have been diminished. Otherwise this is just grandstanding without thinking.
Whether or not the entry was legal was immaterial to the jury instruction--which is what was at question in the case!
You cheated...you actually looked at the facts of the case and the opinion! NO FAIR! ;-)
Very disturbing that Roberts and Thomas went along with this erosion of the Fourth Amendment, and the uber-lib Ginsberg defended the Constitution.
Video of Indiana health inspector entering mans property without warrent.
Not really and we even have Freepers who are ok with polive actions lately.
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