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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Please explain to me the difference between a high court ruling and a precedent. If a high court (in a given jurisdiction) states X, then aren’t lower courts in that jurisdiction bound to affirm that ruling?
I am not a lawyer, and freely admit that I am ignorant of many aspects of the law. This ruling in this case bothers me immensely.
Yeah...notice how they ignore the whole wording issue in the jury instructions about "arrest"?
The guy was in plain view, and no entry was required to arrest him. There were so many ways that the jury instructions were irrelevant, but the opinion was written poorly...and they focused on the idea that even if you think an entry is illegal, you don't necessarily know for sure, and therefore can't just shoot.
That has absolutely no bearing on the argument that it’s OK to beat up a cop just for the hell of it.
Typical Liberal. The Police are pure as the driven snow.
She called 911 to get the cops there. She reported the husband was throwing things around but had not yet hit her.
How does that relate to the assertion in the ruling that “reasonable force” is no longer reasonable?
Lawyers go to court and cite laws that support their case and distract from the validity of the cases the other lawyers are citing.
A court is a court ~ not a machine. The concept of Shariah law is that all the crimes, all the civil problems and all the laws had already been written so a simpleton called a Mullah could sit there in a mud hut in the village and solve disputes by matching the laws to the facts to the decisions.
To a degree it works, but as a general practice Shariah is a disaster if for nothing else than that it hasn't changed in 1000 years!
Lot of stuff has gone on.
American civil and criminal jurisprudence takes place in a totally different environment. A court is a court ~ not a machine. Fur Shur no lawyer wants to cite a case that will have the judge and the other lawyers laugh at him ~ this particular case is in that category.
While these judges were writing about unlawful entries by cops, the state legislature was updating the Castle Doctrine law ~ I think the judges were out of synch ~ and this ain't over 'til it's over!
I said NOTHING about beating up a cop “just for the hell of it,” or any other way.
You think the police and court can do no wrong fine I hope the chains rest lightly upon you. I have no more desire to listen to your boot licking. Have a good night.
You’re suggesting that this gives the police carte blanche. It doesn’t. It simply says that you can’t, for example, blow away the police if you know it’s them, even if you think it’s not a legal entry. It doesn’t suddenly give them legality of illegal entry.
Obviously you have no idea about domestic disputes. This statement just screams your lack of knowledge.
She does not have to beg or ask or anything. The call is all the permission the police needed to go into the house and talk with her. Even if they had asked her permission, if the suspect was between the officers and the victim she would have denied. The officers have to gain a position to where the victim, usually female, has to feel secure enough to answer clearly.
It isn’t all black and white people. Again, reasonable people seek reasonable solutions and there is other avenues to pursue.
Just give it up. You should have read the case decision ~ the story is far more complex than those rabble rousing news stories.
You dodged the question, FRiend. :)
I understand the concept of “stare decisis” to be that certain rulings by a high court are beyond reconsideration. That infers the idea that others are held to be worth reconsideration - that they can be reversed based on evolving understanding of the law.
If I understood the inference of your post, precedent is the citation of a prior decision. but it is the fact of the prior decision that makes a ruling available for citation. In this rotten case, the decision appears to be valid, but not for the reasons given. The reasons given far exceed the facts of the case.
You state that “no lawyer wants to cite a case that will have the judge and the other lawyers laugh at him”, but this ruling explicitly disavows reasonable resistance against illegal police entry. Whether or not the judge or lawyers in a different case are amused, are they bound by the higher court’s explicit writing or not?
In the future any cite of this particular decision will elicit giggles from the judge and the lawyers.
The lawyers DO NOT NEED to cite this case to win. In fact, I'd say to win they need to avoid it like the plague.
I am suggesting that because now “we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law” there is little to hold the police in check; in fact, the police *COULD* barge in (illegally, because the high court says UNLAWFUL POLICE ENTRY) and start verbally abusing you trashing the place, doing EVERYTHING it takes to push your buttons and when you explode WHAM-BAM it’s “assaulting an officer” and maybe “resisting arrest” and *IF* they decide to let you live to tell your tail then you can go to court, yes.
( http://www.freerepublic.com/focus/f-news/2724169/posts — Dead men tell no tales. )
What I am ASSERTING, and [I believe] have proven, is that this decision IS ILLEGAL and could/should be prosecuted under full extent of the law.
You’d asked about her invite.
She called 911. In domestic disputes, it’s common for a victim to be intimidated. The responding officers aren’t doing their duty if they don’t try to converse with the victim in private.
Or maybe she realized her mistake in calling them in the first place. If they wished to arrest him they did not need to enter the home to do so.
Thank you for supporting their point of view. They weren’t there to arrest him. He WENT TO HER PLACE and blocked them from interviewing the caller. He WASN’T IN THE PLACE, but WENT THERE.
They were trying to talk to her, and they didn’t arrest him until after he had entered her place and had assaulted the officers.
You dodge the question, FRiend.
How do the facts of the case, which support the assertion of the police entry being legal, support the proposition that “reasonable resistance” to illegal police entry is now considered illegal?
No the stil have to hav permission to enter a 911 call does not give them that. This was and is a BS court ruling. I invalidates parts of the state constitution. The court can not do that.
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