Home Insecurity

Two privacy cases hit us where we live.

A few years ago, two police officers were chasing a suspected crack dealer at an apartment complex in Lexington, Kentucky, 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. In May 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 unlawful 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 duffel 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.