Home Insecurity

Two privacy rulings hit us where we live.

A few years ago, two police officers were chasing a crack dealer at a Lexington, Kentucky, 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, "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.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.

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  • J[o]h[nn]y L[o][n]gt[o]rs[o]||

    If "but it would make it harder to convict you" is enough to override a constitutional right, doesn't that pretty much get rid of all of them?

  • zip||

    So, you;re finally catching on?

  • Fist of Etiquette||

    Lawyers and especially judges are generally unaccustomed to having law enforcement harrass them. And for them, the mindset of challenging some injustice later in court is logical. But a person should be allowed to exercise his rights not just in court, but also at the moment the state infringes on them.

    Plus, the word of the police in court is weighted so greater than the wronged party that seldom is there a remedy forthcoming down the road.

  • Pope Jimbo||

    Lawyers and judges are part of the LEO in-crowd and as such get treated much differently than the rest of us.

    Growing up, my dad was the probation officer for at least a dozen rural counties and when I was pulled over for various infractions (usually involving cars, vandalism and drinking) they would always take a look at my license and then ask if I was any relation to my dad. When I said yes, they would give us a long lecture and let us go.

    That is why lawyers and judges think the way they do. When the cops realize that they are part of the system they give them the benefit of the doubt.

  • rather||

    So my theory that you are really the Pope is wrong?

  • Pope Jimbo||

    Oh, I'm the Pope all right. Just of a way better religion than Catholicism.

    We have 52 recognized saints which guarantees a 3-day weekend for our faithful.

    Also instead of beatification we have beautification of our saints which involves photoshopping the pious onto the bodies of models.

    The only real rule we are serious about is tithing. No budging on that at all. Anything else, come talk to us and we'll see what we can do for you.

  • rather||

    I thought it would be fun to have sex with the Pope
    -never mind

  • really?||

    Wouldn't it be fun for you to have sex with someone besides yourself?

  • ||

    I got out of a dui becuase I had a county prosecutor in my truck (who was more drunk than me).... He didn't know it, but I also had a brass pipe in my glove compartment.

  • sarcasmic||

    A friend of mine got out of a dui because he found a lawyer who was personal friends with the prosecutor and paid her three thousand dollars to have a five minute chat with the guy and convince him to drop the charges.

  • Fiscal Meth||

    How Soviet

  • Fist of Etiquette||

    But a person should be allowed to exercise his rights not just in court, but also at the moment the state infringes on them.

    After posting that, I wondered if in the context I should have said that a person should be allowed to "assert" his rights instead of "exercise". But I suppose the assertion of ones rights is also an exercise in them.

  • sarcasmic||

    Citizens do not have rights to be exercised or asserted other than the right to pay a lawyer to argue in front of a judge.

    That is the only right that citizens have - the right to pay a lawyer.

    That's what we get for electing lawyers into public office.

  • J[o]h[nn]y L[o][n]gt[o]rs[o]||

    But a person should be allowed to exercise his rights not just in court, but also at the moment the state infringes on them.

    Lawyers and judges think you should only be able to exercise your rights when lawyers and judges are involved and getting paid.....

  • sarcasmic||

    Close, but not quite.

    Lawyers and judges don't believe you have any rights outside the right to pay a lawyer to exercise your rights on your behalf.

    If you can't afford to pay a lawyer to exercise your rights for you, then as far as they're concerned you have no rights at all.

  • OO||

    "...no right to reasonably resist..."
    _
    anyone understand that statement? is it poor writing or is there a right to "unreasonably resist"?

  • NotSure||

    Understand it perfectly, the judges stated that if the police barge into your home you have to do everything they tell you to do.

  • ||

    The statement isn't confusing, but the logic is.

    The justices ruled (by my reading) that the citizen's right to lawful protection under the 4th Amendment is trumped by the authorities' power to effect a violation of the 4th through unlawful entry.

    Tell me how that makes sense

  • sarcasmic||

    It makes sense in that the citizen's right to lawful protection is a gift from government, and whatever government giveth can be taken away.

    Natural rights is rule of law.

    We live under rule of man.

  • Matrix||

    Basically, there is no 4th Amendment unless a Judge later determines you retroactively had it in a past incident. But if you resist law enforcement (or law infringement) then you will not be retroactively granted 4th Amendment privileges (face it, it's no longer a right).

  • Cyto||

    That seemed clear to me as well. Alito's statement in the opinion that they could have chosen to stand on their 4th amendment rights and answer the door, but they abdicated those rights by attempting to destroy evidence is a succinct demonstration of this assumption. His position (writing for the majority!) is that you cannot exercise your rights in any other way than in court.

    His very statement is belied by the facts in this case - the presence of the small quantities of drugs "in plain sight" shows that they did not in fact destroy evidence - so his position that they abdicated their 4th amendment rights by attempting to destroy evidence is absurd on the face.

    What he really means is that they abdicated their 4th amendment rights by "creating the impression in the minds of the police that they were going to destroy evidence", but even that is too generous. Since the people in the apartment have no control over the thoughts of the police, it is clear that the court's position is "if the police think you might destroy evidence, they don't need a warrant."

  • Bob Doe||

    I'm sure prior to the American Revolution there were plenty of British Magistrates who could clear up this misunderstanding for us.

    Just sayin.

  • Matrix||

    Well, in the Barnes case, I do believe the police were right. His wife called them with a reasonable fear that she would be harmed by her husband. But the rationale of the court is wrong.

  • BigT||

    How do they know she called from inside the apt? If not, then she could not invite them in. This is ripe for abuse.

  • rather||

    Barnes blocked the way, while his wife said "don't do this" and "just let them in."

    With those words, the wife invited them into the apartment. I'm lost as to why the case was not decided on that statement.

  • Matrix||

    me too. It was pretty clear, but I think the court wanted to make a statement about people who resist even unlawful entry.

  • West Texas||

    I think this is the answer. Rather than rule on the facts of the case at hand they saw it as an opportunity to rule on the supremacy of the cops and to codify resistance to them as some sort of new American lèse majesté.

  • DJF||

    I wonder how often the courts pick cases just so they can push certain policies. They pick a case like this where the case for keeping the police out is weak so they can push the policy that the police have expanded powers to enter. Instead of just ruling that the wife invited them in, now we have an open door policy for the 4th amendment.

  • OO||

    the supremes typically decide when lower court rulings are conflicted

  • Nomic||

    I disagree that "just let them in" is an invitation to the police. She's asking the husband to allow them in. He didn't. However, the 911 call is an invitation. She declared an emergency requiring their assistance.
    And, yes, clearly the court wanted to make a statement about resisting unlawful entry.

  • rather||

    It does not take two parties to consent to a search

  • ||

    So, you think she was publicly arguing to let them in, but didn't actually expect them to come in?

    The law infers intent from words and actions. There's every reason to infer she wanted the cops to come in.

    I hate these rulings, but that would never hold up.

  • Name Nomad||

    All of you people are missing the obvious conclusion: if you don't have a home, they can't raid it. Just become a shifty-eyed drifter and you'll avoid all this nonsense.

  • Pope Jimbo||

    I had a buddy who did this. He said the cops in the pacific northwest were super nice to him.

    In one town, they insisted he stop by the jail and use the showers. Then he was given a motorcycle to ride for a bit before he and the cops went on a fun camping trip in the woods where they played a super fun game of hide and seek.

  • ||

    Sure it's all fun and games until someone falls out of a helicopter.

  • Scuffy Nerf Herder||

    Then it's just fun

  • Matrix||

    If your name is Chev Chelios, you'll survive.

  • Scuffy Nerf Herder||

    I heard your friend has a really cool knife with some needles and thread and shit in the handle.

  • shifty-eyed drifter ||

    I don't want to tell you what they search when you don't have a house or a shopping cart

  • ||

    so, "It sounded like evidence was being destroyed" is the 21st century equivalent to the practice of cops "finding" (planting) narcotics on a suspect they didn't like, just so they could drag him in?

  • Nomic||

    Seems like.
    Let a private citizen make a statement like that in court. "What exactly does destroying evidence sound like?" "How do you distinguish between that and someone using the bathroom or shredding their outdated financial records?"
    It would never stand.

  • MNG||

    "said police may force their way into a home for any reason or no reason at all"

    Now that's not what it said, right? As Sullum immediately says the court said one could contest the entry in court but they could not resist via force.

    The more I think about the case the more I can see the reasoning. All you have to do is watch Cops to see that virtually every suspect thinks they are in the right about whether police can enter or not, and the police virtually always think they are in the right. So there is going to be this confrontation, a "right to resist" is just going to embolden the many, many mistaken suspects to stand their ground. Then when resistance happens the police are going to flex their authority and someone is going to get hurt. Note that that someone is always going to include the suspect, if he hurts a cop resisting then the cops are going to raise the level of force until they bring him down, so what is gained?

    Now, it should not be left there. If this right to resist is impractical AND the home is important, then we need strong measures to protect the latter. Suits for wrongful entry should be easier to bring and win against both the officer and departments, civilian review boards should be able to review and punish for illegal entry, etc.

  • ||

    "we decline to recognize the right to reasonably resist an unlawful police entry" The plain meaning is that police can enter your home unlawfully, and you have no right to resist. So, yes, it does mean they can enter for any reason or no reason.

    And it doesn't say much for the professionalism and education of police if they "think" they are in the right. By this argument, the cops are sort of like a gang that can do what they want, you best not push back or they'll hurt you, but it's OK because the courts will give everyone a fair hearing to sort it all out later.

  • West Texas||

    By this argument, the cops are sort of like a gang that can do what they want, you best not push back or they'll hurt you, but it's OK because the courts will give everyone a fair hearing to sort it all out later.

    I think this is a correct assessment. The reasoning certainly comes from a statist point of view that the government should always be presumed to be right and benevolent at all times.

    And, I think, if you were able to engage one of these justices in a conversation on the subject, he would likely agree with that statement and (like many nice statists I know) express dismay that anyone would ever possibly presume otherwise without having some ulterior motive of excusing wrongdoing.

  • MNG||

    "The reasoning certainly comes from a statist point of view that the government should always be presumed to be right and benevolent at all times"

    I think that is incorrect as the opinion holds out that an entry can be illegitimate, it just doesn't think forceful citizen self-help is going to accomplish anything but negative results.

  • West Texas||

    See, it depends on how you define, "negative results."

    Some people might say that protecting and exercising the rights defined in the 4th Amendment is more important than the death or injury of a nosy cop.

  • mad libertarian guy||

    I would.

    I'd say now that the 4th has been wrested from us. The Patriot Act, no-knock raids, this crazy fucking decision. It's like we didn't fight a revolution in order to explicitly safeguard our home and person from unwarranted government intrusion or something.

  • ||

    Ming the Statist only sees good results from the overturning of the 4th, 10th, 2nd and (for Fox News, of course) 1st amendments.

  • MNG||

    Oh please, liberals have defended the 4th far better than conservatives. Justices Marshall, Brennan and Douglas were probably the best on the 4th of all and are well known as the most liberal. Scalia, Rehnquist, and other heroes of the right have been police tools. I'm a pretty staunch defender of 4th amendment rights, I just don't think citizen self help is the answer.

  • sarcasmic||

    He said Statist, not liberal.

    There are plenty of Statists on the right as well as the left.

  • SFC B||

    Where the rubber-meets-the-road though is that "self help" is the last option, and the only option available to everyone.

    This ruling takes away the ability for a person to say they resisted the police because they were innocent and the police were wrong to arrest them.

    This isn't a "slippery slope" ruling. This is a "75% of the way down the cliff we slid right off the edge of" ruling.

  • CrackertyAssCracker||

    I just don't think citizen self help is the answer

    Nice tidy summary of everything you advocate here.

  • ||

    "I'm a pretty staunch defender of 4th amendment rights..."

    Yeah, sure you are. You are a fucking delusional douche, but you are NOT a stauch defender of any right against the state. NOT. N.O.T. Notnotnotnotnotnotnotnotnotnotnot.

  • MNG||

    It does not say they can enter for any reason, it holds out the idea that an entry can be illegitimate and the cause for exclusion, suit or disciplinary action. It just says the homeowner cannot use forceful self-help to fix the situation himself. And what good would that do? Police are trained to respond to resistance with one level of force above that. They are going to come in, all the internet tuf gais in the world are not going to stop them. The only thing one can have ultimately is their day in court.

  • ||

    If they can enter for an unlawful reason, then they can enter for any reason. Get it ?

  • MNG||

    Look, as this case demonstrates, they were going to physically enter anyway. You're not going to physically stop the police if they want to enter. What you can do is vindicate yourself after the fact and punish them in some way.

  • ||

    So now you agree they can enter for any reason and you can't stop them.

  • sarcasmic||

    That is exactly what he is saying.

    You have no right to resist the police for any reason.

    You do have the right to hire a lawyer to try to convince a judge after the fact that the police were committing an unlawful act, but while the police are committing that unlawful act you must not resist.

  • ||

    But a moment ago, he was arguing that this decision doesn't say that. Contradiction ? What contradiction ?

  • sarcasmic||

    He is saying that the police may not enter for any reason.
    They need a valid reason to enter.

    The validity of their reason is not something to be decided at time of entry, it is something to be decided later in court (assuming you have the resources to bring it to court).

  • mad libertarian guy||

    Yes. After they violate your rights, go through and destroy your shit, subject you to the criminal justice system and all of the costs associated with it, MAYBE you could possibly have an avenue of redress.

    If you can afford it.

    The Constitution and BoR were written so that each and every one of us can read and understand them. The judiciary now claims sole authority of the text, and routinely rules in such a way as to subvert the very things it is trying to protect against.

    The court should be fucking ashamed of this piece of shit ruling.

  • sarcasmic||

    "The court should be fucking ashamed of this piece of shit ruling."

    Why?

    You think the job of the court is to judge the actions of government against the supreme law of the land?
    Please.

    The job of the court is to defend government action against those who dare to judge that action against the supreme law of the land.

    In this case government action was in clear violation of the 4th Amendment, which the court effectively nullified.

    The court succeeded in defending the government against the Constitution.

    That's their job.

  • Bob Doe||

    You left out 'shoot your dog.'

  • MNG||

    Under your reading and my reading the police are going to come in anyway. Civilians exercising self help are not going to stop that. Under my way the police get punished, though yes later.

  • sarcasmic||

    "Under my way the police get punished, though yes later."

    No they don't. They get paid leave and then, maybe, the taxpayers will get to pay a settlement. The police who commit the illegal acts don't get punished.

    It would be much better if policemen entering homes illegally were shot dead by the homeowners.

    That might teach the police to get lawful warrants before entering someone's property.

  • SFC B||

    The court could have decided that the police had the responsibility to enter based on the 911 call, and the wife's statements about letting them in. Instead they ruled that the guy had to right to argue that he had the right to resist the police's entry.

    Whether he was right to resist the police's entry is something which should have been decided by a jury.

  • Marc St. Stephen||

    "What you can do is vindicate yourself after the fact and punish them in some way."

    And a cursory reading of any Radley Balko article here demonstrates exactly how effective that has been - how rarely are cops and prosecutors held accountable for misdeeds with punishments, if any, that come even close to citizen punishments such as losing their jobs or incarceration?

  • West Texas||

    The point about a castle doctrine isn't that "the cops are just going to come in anyway."

    The reason behind a castle doctrine is that at some point if the cops (or any person) know that there is a risk of getting killed or injured themselves if they come in, then that person trying to enter might think twice about it. And then subsequently be forced to meet a bigger burden of proof (i.e. a warrant) to justify going back with backups/reinforcements/swat etc.

    Without that that threat of violence (or at least with it significantly reduced), there's nothing to stop cops from going fishing wherever they want.

  • MNG||

    I disagree. If we had a system where effective lawsuits and civilian led discipline hung over their heads they would worry about that too.

    The law is supposed to reduce violent conflict not exacerbate it, even as a deterrent.

  • sarcasmic||

    Lawsuits are meaningless if you can't afford a lawyer.

  • MNG||

    Luckily the liberal Warren court ruled that lawyers must be provided for defendants that would be charged with these offenses.

  • sarcasmic||

    "Luckily the liberal Warren court ruled that lawyers must be provided for defendants that would be charged with these offenses."

    How does that help someone who can't afford a lawyer to file a lawsuit against the police and get it effectively argued in court?

  • Shorter MNG||

    If only we had sued King George, the Bill of Rights wouldn't have even been necessary.

  • ||

    Right the obtuse one, MNG, wants a bad system to not be a bad system.

    I disagree. If we had a system where effective lawsuits and civilian led discipline hung over their heads they would worry about that too.

    How about if we just had a system where the police don't come into your home unless a life is threatened, or they have peaceably presented a warrant looking for stolen goods (there is no other reason)?

    It's just stupid to say "effective lawsuits", when if the system was working properly we wouldn't need such lawsuits.

  • ||

    The liberal solution to a government-created problem is always more government. It's like encouraging a bumbling surgeon who has already killed dozens to give it another go, because practice makes perfect.

  • ||

    "The liberal solution to a government-created problem is always more government."

    God, there it is. So fucking simple to understand and Ming STILL can't figure it out. Or maybe he can but figures that is the side his bread is buttered on. Of course, once that hungry alligator of government is done eating you little people, Ming is sure that he will be quite hungry and have no need to come after the more enlightened progressives. Mao's buddies thought that too. Only Zhou En Lai was right, though.

  • ||

    Empowering the police to barge into people's homes unlawfully is supposed to reduce conflict ? WTF

  • sarcasmic||

    There will only be conflict if you resist.

    If you submit to the police when the unlawfully enter your home then there will be no conflict.

    Your next step is to hire a lawyer to take it to court. Or, if you can't afford a lawyer it just ends there.

    You have no rights other than the right to hire a lawyer, and if you cannot afford to hire a lawyer then you have absolutely no rights at all.

  • OO||

    depends. lawyers also work on contingency

  • MNG||

    How is the threat of more effective lawsuits and civilian controlled discipline "empowering" the police?

  • sarcasmic||

    "How is the threat of more effective lawsuits and civilian controlled discipline "empowering" the police?"

    It empowers them by sending the message that they are free to commit illegal acts against citizens, especially against citizens who lack the coin to bring a lawsuit to court.

    What better "civilian controlled discipline" exists than empowering a homeowner to defend their property against unlawful entry by police?

  • Matrix||

    MNG
    1) you need to have the money to hire a lawyer and pay court fees.
    2) you need to find a lawyer willing to take the case.
    3) your lawyer will have to make an excellent case against the police.
    4) you have to have a judge/jury who will actually rule in favor of the plaintiff against the city/county/state/etc.

    And if they shot your ass because that remote control in your hand looked like an AK-47, well, you're SOL.

    Why should tax payers be forced pay for thugs in uniform who abuse their authority?

  • Gray Ghost||

    Piling on, and if you win your case, you then 5) have to find some way of executing your judgment against the cops/municipality who wronged you. If a sovereign entity, they may not feel like paying you and good luck forcing them to do so.

    The Indiana ruling is absolutely horrible. There was no reason whatsoever to include the dicta that people had no right to resist an unlawful police entrance to their property. Including that dicta violates common principles of judicial conduct so bad it hurts.

  • Dylboz||

    Precisely! Given the proclivity for cops to shoot first (until ALL their magazines are empty) and refuse to answer any questions later (see: Jose Guereña), this right to sue later is meaningless. Dead men file no lawsuits.

    Do you wonder why that Marine lay dying on his kitchen floor, bleeding out and gasping for air for an hour and 14 minutes while the SWAT team drove their remote controlled robot around his house, knowing full well it was empty? Do you wonder why the paramedics were only allowed in once they were sure he was dead?

    I don't.

  • ||

    "How is the threat of more effective lawsuits and civilian controlled discipline "empowering" the police?"

    WTF are you talking about ?! This court decision threatend the police with more effective lawsuits ? and civilian controlled discipline ?

    You're not stupid, so you're deliberately being obtuse. No wonder you're so tedious to argue with.

  • ||

    It's funny to me that statists are always calling libertarians "utopian". To me, there are few ideas more utopian than the notion that a poor person living in a shitty neighborhood is going to be able to successfully sue the police in a court system that is plainly skeptical of restraints on the police.

  • Matrix||

    EES, this should be continually parrotted until those numbskulls get it through their heads.

  • CaptainSmartass||

    I agree with the sentiment, but the prevalence of SWAT-style raids for parking tickets and pot possession shows how the police have responded to that concept: rather than rethinking their approach, they just militarized and go in anyway.

  • MNG||

    +1

    They are going to come in, they have superior firepower and numbers and organization. Better to actually punish them via the courts than some breast-beating he-man meaningless 'right.'

  • ||

    Yes, so uncivilized and unelightened, those exercises in so-called "rights"...wouldn't want to be gauche with our civil liberties, would we?

  • Jim||

    But listen to us MNG: they don't get punished by the courts. You talk about changing the system to make it easier, but that either 1) will never happen, or at the very least 2) is not in any way happening now, whereas that ruling is in effect now. And lawyers are provided to defendants, not to people who want to sue the cops, so if you don't have the money, well, fuck you (as a liberal I'm amazed you want the poor to suffer so much more than the rest of us). And it will just be a lawsuit, since you cannot bring criminal charges as a civilian.

  • The Ingenious Hidalgo||

    Well, you may think that's the best course of action, and of course when police illegally enter your home you're free to pursue it. You want to deny other people the right to make that judgement for themselves - you want to make resistance to home invasion illegal because you don't think it's a good idea. How about we let individuals decide how best to protect their rights?

  • CrackertyAssCracker||

    Ya they can only enter if they say they think they hear a toilet flushing.

  • Fat Crack Ho||

    "It does not say they can enter for any reason . . ."

    A. You have no right to resist.

    B. Because the police enjoy qualified immunity, they will never be punished for an unlawful arrest/home invasion.

    So yeah, they can enter for any reason or for no reason at all.

  • Fat Crack Ho||

    "The plain meaning is that police can enter your home unlawfully, and you have no right to resist. So, yes, it does mean they can enter for any reason or no reason."

    Add to that the fact that the police enjoy qualified immunity, and your statement is truer than ever.

  • Nomic||

    As Sullum immediately says the court said one could contest the entry in court but they could not resist via force.

    Mental image: "Pardon me Sgt. Swatteam, would you wait at the door while I get a lawyer to work out the legality of this before a judge? Thank you so much.

  • ||

    By the way, you are aware, aren't you, that not everybody who claims to be a police officer actually is a police officer?

  • Kristen||

    Ayup.. This is an open invitation for burglars and robbers to shout "Police!" before busting down your door, shooting your dog and stealing your shit. Just like the real police!

  • Brendan Perez||

    If the police think they're right, they should save it for the courtroom. Plea their case before a judge and let the judge decide if they should have be allowed in.

    They shouldn't be allowed to use force to solve their problems.

  • J[o]h[nn]y L[o][n]gt[o]rs[o]||

    All you have to do is watch Cops to see that virtually every suspect thinks they are in the right about whether police can enter or not, and the police virtually always think they are in the right. So there is going to be this confrontation

    Shorter MNG: If you resist The Holy And Sacred State, they will shoot you, therefore we must let them shoot you to deter you from resisting so they don't shoot you.

  • ||

    Sounds about right.

  • MNG||

    Yes, I think the state is so sacred I would like to see it made much easier to bring and win suits against them and have civilians oversee and discipline them.

  • sarcasmic||

    How do you bring a suit if you can't afford a lawyer?

  • Dylboz||

    How do you bring a suit if you're dead at the hands of law enforcement? How do you sue the criminal posing as a cop? Are you seriously advocating "lie down and take it, you'll only make it worse if you resist?"

  • mad libertarian guy||

    So you implement a system in which a private citizen is NOT allowed to resist BEFORE you make it possible to hold the authorities accountable.

    If they were to go about it, they would necessarily need to get rid of shit like immunity for the po-po and making them personally financially liable (rather than using tax money to settle lawsuits) BEFORE giving the goons a license to storm in just because they heard an imaginary toilet flushing.

  • SFC B||

    The natural defense for the police, when you sue them for illegally entering your home, is that you didn't resist or protest their entry, thus you consented.

  • ||

    Fucking rights- how do they work?

  • ||

    Only on a contingent basis, apparently.

  • West Texas||

    And retroactively at that.

  • uuuh||

    What's so funny about MNG is that any of my lefty/progressive friends who hear about the Indiana/Kentucky cases express immediate outrage. MNG is blessedly, a rare breed.

  • MNG||

    In our society rights usually work by going to the courts to vindicate them. Considering how many people are mistaken as to what their rights are that's a good thing.

  • sarcasmic||

    You have the right to hire a lawyer to argue on your behalf in front of a judge, but other than that you have no rights at all when dealing with the government.

  • MNG||

    Because no one has ever won a legal battle agains the government.

  • sarcasmic||

    No one who can't afford a lawyer has ever won a legal battle with anyone.

  • OO||

    one can also represent oneself. lawyers also work on contingency.

  • sarcasmic||

    Against the government?

    Good luck with that.

  • Jim||

    one can also represent oneself.

    And people are so fucking good at it, that under normal circumstances, when charged with a crime, they're provided one by the state because the law is far too complicated for someone who hasn't been trained in the law to argue.

  • ||

    Our forebears did win a revolution against the government. The memory of that achievement strongly influenced the adoption of the Second Amendment. Armed resistance is messy and dangerous; I don't want to get involved in it at any scale. However, we need to remind ourselves and others that it may come to that, as a deterrent to the kind of ruling discussed here. One way is for states to adopt the Castle Doctrine.

  • ||

    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.

    There's the key word that makes all these shenanigans and contortions viable. When you know longer recognize anything as unreasonable, government slips its leash.

  • ||

    Absolutely right my friend. I hate that phrase. Also, "reasonably foreseeable" is on my list of most useless slippery phrases.

  • ||

    The text of the amendment does not authorize the state to search any person's home, does it? Thus, the language itself, does not contain an express grant of power authorizing the state to conduct any search, reasonable, or otherwise.

    Moreover, the text of the amendment does not confer upon the state the authority to be the sole player in the decision making framework of whether a search would be reasonable.

  • sarcasmic||

    "The text of the amendment does not authorize the state to search any person's home, does it? Thus, the language itself, does not contain an express grant of power authorizing the state to conduct any search, reasonable, or otherwise."

    It does now. Just as the First authorizes Congress to make laws restricting the press and the Second authorizes Congress to infringe upon the right to keep and bear arms.

  • Fat Crack Ho||

    "There's the key word that makes all these shenanigans and contortions viable. When you know longer recognize anything as unreasonable, government slips its leash."

    This one little sentence is the perfect summation of what's happened to the 4th Amendment.

  • K||

    The constitutional rights are clear. The goverment can not enter until there is a warrant. There is a case in Colorado against the Colorado State Troopers. State Troopers have felony charges for homocide,trespass and other felony charges. I hope the Bill of Rights will prevail.

  • Matrix||

    http://www.thedenverchannel.co.....etail.html

    Here's an article discussing it.

  • DJF||

    So the police were chasing a crack dealer and because they smelt marijuana they broke into the home?

    When did crack start to smell like marijuana? How are the two connected? If the cops were chasing a marijuana dealer it would make sense but how does marijuana smell make you kick in the door of a home when you are looking for a crack dealer?

    Also I wonder how soon before the War on Drugs will require indoor plumbing to be banned since its so often claimed that the drains are used for disposing of drugs

  • Nomic||

    Nah, they'll just make a ban on selling new toilets that will flush twice in the time it takes to bring in a kill squad swat team.

  • ||

    And it's always worth noting how nonsensical to argue the amount of drugs in the house is so miniscule it can be disposed of in one flush, yet the SWAT team had to go in hot and risk everyone's life because big time drug dealers are armed and dangerous !

  • ||

    Kinetic home invasion is now not only policy and standard operating procedure, it now has the complete protection of the courts.

  • ||

    So the police were chasing a crack dealer and because they smelt marijuana they broke into the home?

    SQUIRREL!

  • strummer||

    This is a public service announcement!

    Know your rights! All three of 'em!

    Number One: You have the right not to be killed, murder is a crime! Unless it is done -- by a policeman...

    Number Two: You have the right to food money. Provided of course you don't mind a little investigation ...humiliation...and if you cross your fingers...rehabilitation.

    Number Three: You have the right to free speech, as long as..you're not dumb enough to actually try it!

    Know your rights! These are your rights.

    ---Clash

  • ||

    "go straight to hell boy...
    ...go straight to hell boy."

  • K||

    Jacob Sullum please check out the developing story about the Jason Kemp homocide in Grand Junction,CO by Colorado State Troopers.
    Jason told the State Troopers you can not come in without a search warrant.
    He was shot and killed.

  • ||

  • horsewithnonick||

    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. ”

    The 4th Amendment, like all the others, does not in any way confer rights upon the People; properly followed, it constrains the behavior of the Government. It is not about being able to bitch about the violation before a judge later, it prohibits the authorities from searching a home without a warrant.

    When any person enters my home in violation of this right, IMHO they are no longer a lawful authority, and I will deal with them as I see fit, uniform or no.

  • ||

    Do that and your new name will be housewithnonick.

  • ||

    Or Jose Guerena.

  • Sickhaus||

    So when will they decide you have no right to defend yourself against any other intruder in your home because the courts are the proper place to appropriately address these issues? Violent resistance would only escalate violence right?

    They also assume that you will live another day to contest it in court...

  • ||

    It sounds like we need to go into the business of soundproofing and smellproofing homes.

    Sure, 75% of our business may be drug dealers, but at least they pay cash up front.

  • ||

    "In our society rights usually work by going to the courts to vindicate them."

    REally?!? Is that how rights work, Ming, you statist fuck? How about going out and exercising them rather than spending several years and thousands of dollars going to court? You are exercising your first amendment right to be a moron right now with no lawyers involved - fun, right? Now if I am sitting in my home doing nothing and the police barge in for no reason, I have a right to defend my castle by shooting them - again, no lawyers involved. Now, you may think this is a hurtful outcome, but no one ever said exercising your rights would be pretty (after all, everyone here commenting has to deal with the grisly reality of reading your inevitable posts). If the only way you can exercise a right is with massive economic and temporal resources, then that is a right not enjoyed by everyone, and is effectively NOT a right. And the fourth amendment was, until recently, a right. But STATIST fucks like you will not stop until that which is "strictly mandatory is absolutely forbidden." Are you from North Korea?

  • ||

    the grisly reality of reading Minge's posts....vivid imagery, that.

  • ||

    BTW, in the midst of my spittle-flecked rants I have not asked, how is RUTH BADER GINSBURG the ONLY DISSENTING OPINION on this GODAWFUL decision? HOW? (Imagine Nancy Kerrigan clutching her knee and shrieking it in that tone...)

  • sarcasmic||

    I know.

  • Middle Age Crazy||

    IANAL, but I suspect it's all about precedent, and Ginsburg is probably the least bound by that. As SF noted above, this appears to be the end of a long chain of decisions hinging on the word "unreasonable", and I'll bet the first link in the chain is particularly rotten. In order to permit warrantless searches, the original court would've had to ignore the clear implication of the ammendment that warrants are required. Also, there is no reason I can see that the "exigencies" of law enforcement should validate a warrantless search (vs. simple entry), other than the convenience of the courts.

    If there isn't a term in jurisprudence for the process by which a good statute is effectively repealed by bad case law, there should be. At some point I think we're going to have to hit the constitutional reset button, but that will take a big crisis.

  • ||

    Another thing that sucks is recently at least two state supreme courts had issued decisions that the smell of pot was not sufficient probable cause for search of a vehicle.

    What I mean by that is, at least in that world (the pre-Kentucky v King world) a handful of states were protecting our rights [Indiana not so much], but now those handful of good decisions are moot.

  • AJ||

    It appears as though the SCOTUS only ruled that the cops didn't create what they called and "exigent circumstance," but didn't actually rule whether or not the circumstance was exigent. They sent that back to Kentucky. So Kentucky may still rule that the smell of marijuana does not constitute an exigent circumstance, thereby keeping the 4th somewhat intact. Hopefully.

  • Mr. Mark||

    When the government acts outside of the constitution, ignore the government.

    Just do what you have to do.

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  • christian||

    the text of the amendment does not confer upon the state the authority to be the sole player in the decision making framework of whether a search would be reasonable.

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