News Indiana Court says police can enter homes without warrant?

[mege]

Do you really want 'officers of the law' to be 'legally' allowed to enter your home for no reason?

Remember the holocaust? All of that stuff was 'legal' wrt German law.

It's not legal for a police officer to 'barge into' your home. Noone is defending a police officer's ilicit action. The ruling clarifys, though, that it is still illegal for you to restrain a police officer - even when they are performing a potentially illegal act. In short: two wrongs don't make a right.

Also, I would be suprised if the SCOTUS hears this case. It's pretty messy and a higher level decision one way or another could have tons of consequences.

This example is pushing extremes, but still it is just a moderate exaggeration of (one side of the story) of a case that happened recently:

Police notices obviously drunk woman walking home, offers a ride home (rather than threatening a public drunkenness charge). On arrival, forces his way through the door, starts to rape her. With, perhaps drunken courage, she gets control of his gun at an opportune moment and shoots him.

Justified? I say yes. Does this ruling say no, let the court sort it out later after the rape?

In that case - violent physical harm is coming to the victim, and she would be justified in her response that way. This ruling doesn't really have any bearing on that.

I suggest looking at the possibilities if the ruling went the other way. If the ruling defended the individual disobeying the police, then I think that everyone is in more danger. In that case you are giving an individual permission to escalate a situation to violence.

The ruling, as is, attempts to prevent escalation by giving the benefit of the doubt, in the moment, to the police officer. If their actions are truly illegal, then there is still recourse via the courts - this ruling just prevents the escalation to violence via some individual thought of superiority versus the police.

Or thought of yet another way: it is not legal to get forceful or violent with a police officer over a property/privacy issue (even if they are not acting legally). I don't think the ruling has ANY bearing on situations where a police officer is going to become needlessly violent against a person.

 

[TheStatutoryApe]

Russ and someone else pointed it out in their posts but it may have gotten lost amid the rest of their posts.

In this particular case the officer was not illegally entering the home of the defendant. The wife had called alleging domestic abuse. When the police arrived the husband (the alleged perpetrator) took the wife (the alleged victim) into the home essentially meaning that the alleged attacker was depriving the officers of their ability to make contact with the alleged victim. The officers prevented the man from closing the door and tried to enter the home and the man physically attempted to expel the officer. He was arrested for attacking an officer in the lawful engagement of his duties.

This decision is from the appeals court. The reason this is a big deal at all is because the defense alleged that the man was not aware that the police had the lawful right to enter the home, being unaware of the phone call to the police, and therefore had the right to prevent the officer from entering the home. So there is the question. Do you think that any citizen should have the right to attempt to determine the legality of police entry on their own and then, if reasonably capable of claiming ignorance, attack the officers for their alleged illegal entry?

I think that this is a perfect case for illustrating why that should not be allowed.

 

[DoggerDan]

People cannot be allowed to resist the police.

Russ, I usually agree with you, but in this case, I flat out disagree with you, and that's based on one clear in indisputable fact - It's the very foundation of our country:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,[74] that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends...[/quote]

Unlawful entry by anyone, including police officers, is a violation of people's 4th Amendment rights and is therefore destructive to the ends mentioned in the DoI.

...it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

​

Admittedly, resisting unlawful entry isn't on the same scale as our Declaration of Independence. It is, however, based on the same principle. Martin Luther King Jr.'s peaceful resistance movement violated laws! Those laws were later held to be un-Constitutional, that police do not have the authority to stop peaceful gatherings and protests.

It is illogical and dangerous to both the public and the officers.

No, Russ. It can certainly be dangerous. Standing firm upon the principles of freedom and liberty upon which our country is based, however, is never illogical.

You can sort out improper evidence collection and property destruction later in court.

Not if you acquiesce and allow them entry into your home.

You cannot sort out your own death later in court.

This rests on the erroneous assumption that death is an inevitable result. It's not, and the police and courts know it. When a home owner/occupant dies during an unlawful entry, those conducting the unlawful entry usually wind up getting the short end of the stick, and they know it.

 

[DoggerDan]

Genuine.

Ok. I had to ask... Your subsequent posts make it fairly clear your take on the issue.

No! Neither civilians nor law enforcement are authorized to determine legal/illegal.

Russ, I'm sorry, but you are in error, here. Both cops and private citizens make such determinations all the time. When someone breaks into my home, it's not only my right to determine the legality of his entry, it's my duty to both myself, any fellow occupants, and the intruder, as to the legality of his entry, and for my own safety and that of my friends and loved ones who may be with me, I need to make that determination very fast.

It could be a neighborhood kid simply fell through the window while going after a stray ball (true story). I'd better make the right determination that the intrusion was an accident. It could be some drunk was at the wrong door, couldn't get his key to work and decided to break into his "own" home (also a true story). I could decide this one either way, as being drunk is no more an excuse for unlawfully entering another's home as it is an excuse for killing people while driving under the influence.

Or, it could be a burglar, in which case I'll need some new carpet and paint.

That is an issue for courts/judges.

No, Russ. Courts/judges decide guilt and punishment. It's up to all law-abiding citizens, including the police, to keep their eyes and ears peeled, as well as their brains wired with at least the basics of what's lawful and what's unlawful, and act accordingly. If I see some man beating the snot out of a woman outside a bar, is there any question as to whether or not it's lawful? Heck no! It is not lawful. Doing nothing would be an abrogation of my duties as a citizen. Saying "well, it's not for me to determine if that's lawful or not" is far worse than doing nothing, Russ. It's akin to closing one's eyes, sticking fingers in one's ears and saying "notmyproblem, notmyproblem, notmyproblem," thereby becoming part of the problem.

This ruling is mostly about safety and an orderly legal process.

No, Russ. This ruling is about granting police powers above and beyond that envisioned (wisely so) by those who wrote our Constitution and it's Bill of Rights. The reason "Castle Doctrines" exist is many states is to affirm our rights and freedoms under the Constitution and, in part, the Fourth Amendment. This ruling attempts to undermine that.

The correction of a violation of the 4th Amendment happens in court.

Is this before or after unlawfully entering police violate the homeowners' rights and by doing so place him and his family in serious jeopardy? Are you aware one of the first actions by law enforcement is to "secure the premises," and that often means shooting the family dog at the first sign of aggression? Are you aware of how many pets are killed this way every year? Are you aware of how many people turning a corner to see what the commotion is are killed this way?

And this ruling affirms exactly that course of action.

No it doesn't, Russ. It grants carte blanch freedom for police to walk all over individual citizens in what used to be the sanctity of their own homes.

I recommend you actually read the ruling.

I did. I recommend you actually read our Constitution and the Fourth Amendment.

You are wrong...

I'm wrong! Hah! Have you any understanding of the principles upon which our country was founded, such as beating back an over-aggressive police state that existed with the British Army occupiers who overstepped the bounds of their authority to the point of death of innocent people?

In point of fact, this is a change from pre-1900 though, specifically due to the changing times and the increasing risks involved in resistance.

The only risk, here, is to our continued freedom should we allow this ruling to go unchallenged.

In addition, there are two dissents: Both of them essentially argue that the ruling was too broad, but agree that it was correct for this case.

No, they did not. Now it's your turn to re-read it.

Agreed: a police officer's best way to avoid resistance is to act professionally. So you would risk life imprisonment or even your own death in order to protect your property?

You are obviously not cognizant of the law in Colorado and many other states, Russ.

I can't imagine a more absurdly self-destructive position.

I could hurdle names at your position, Russ. However, I'll remain professional, instead.

You misstate the issue in the ruling.

You're attempting to side-step the overarching issues.

The ruling does not say that police officers are allowed to violate the 4th amendment.

I never claimed it did. In fact, I specifically stated otherwise, so I'm wondering why you're intimating that I said something I did not.

It says that if police officers violate the 4th Amendment, your recourse is through the legal system, not through physical confrontation.

I stated my reasoning on this matter in my previous post, to which you mostly responded, but conveniently left out my argument concerning this tidbit.

If you want to play that game, fine. Not on my time. G'night.

 

[TheStatutoryApe]

Russ, I'm sorry, but you are in error, here. Both cops and private citizens make such determinations all the time. When someone breaks into my home, it's not only my right to determine the legality of his entry, it's my duty to both myself, any fellow occupants, and the intruder, as to the legality of his entry, and for my own safety and that of my friends and loved ones who may be with me, I need to make that determination very fast.

Neither officers nor citizens determine what is and is not lawful. They may make a reasonable assessment of whether something is unlawful and act in a reasonable manner in response. If a person is on your property you may stop them and question them and request that they leave if they fail to show reasonable cause for them to be on your property. If they have been given reasonable opportunity to leave and have failed to do so then they may be considered trespassers at which point you may call the police or perhaps, depending on the jurisdiction, you may have the right to attempt to forcibly remove them.

The thing is that you may be much more capable of determining if that guy in the ski mask rummaging your silver should not be on your property than determining that a police officer is trespassing since police officers do have legal authority to enter premises without warrant or invitation in certain circumstances. It is certainly quite possible, as this particular case illustrates, that you as a citizen, possibly lacking pertinent information, may not be aware of the officer's legal authority to enter your property. One may even feign ignorance to such an effect thereby, if this decision is ignored, allowing one to resist lawful police action.

One may argue though that such a conundrum does not present itself so long as the police may only enter with a warrant or by invitation. That is rather naive though. Obviously there is need for officers to enter a premises if they have legitimate reason to believe that persons are in danger. I won't touch the destruction of evidence bit as I am not sure what I think about that. But those things aside a quick look and you can find copies of http://extras.mnginteractive.com/live/media/site200/2009/0824/20090824_053942_search-warrant.jpg online that you can fix to your personal specifications with photoshop or even just fabricate one whole clothe (how many people do you think have even seen a real warrant before?). Time date ect can be entered by hand. Depending on just how prepared you want to be you can even make https://www.instantcheckmate.com/?mdm=Display&src=GLE&cmp=DCO on your targets. Perhaps a "warrant" means a legitimate police officer on legitimate business or perhaps it means a well prepared criminal (or criminal officer). You really don't have any way of knowing unless you think many officers or criminals are going to give you time to make some phone calls before they enter your home.

No, Russ. This ruling is about granting police powers above and beyond that envisioned (wisely so) by those who wrote our Constitution and it's Bill of Rights. The reason "Castle Doctrines" exist is many states is to affirm our rights and freedoms under the Constitution and, in part, the Fourth Amendment. This ruling attempts to undermine that.

It does not grant the police any powers that they do not have already.

No, they did not. Now it's your turn to re-read it.

http://www.in.gov/judiciary/opinions/pdf/05121101shd.pdf

...

Dickson, Justice, dissenting.
...

It would have been preferable, in my view, for the Court today to have taken a more narrow approach, construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person's resistance to police entry in the course of investigating reports of domestic violence.

...

Rucker, Justice, dissenting.

...

At issue in this case is not whether Barnes had the right to resist unlawful police entry into his home – a proposition that the State does not even contest – but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer. Federal Fourth Amendment jurisprudence is equal to the task of resolving these issues.2 In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally – that is, without the necessity of a warrant, consent, or exigent circumstances. And that their sole remedy is to seek refuge in the civil arena. I disagree and therefore respectfully dissent.

Russ seems to have only perhaps misconstrued the comments of the second dissenting Justice.

 

[Oltz]

2 In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally – that is, without the necessity of a warrant, consent, or exigent circumstances. And that their sole remedy is to seek refuge in the civil arena. I disagree and therefore respectfully dissent.

This is exactly my opinion as well. You are granting access to peoples homes without a warrant or probable cause. This removes due process and consent to any search or seizure. Police can walk in any home at will and look for anything without following the judicial process.

Probable cause is still valid if you hear a fight or see something in progress then they have the right to enter. That said do not resist if they have probable cause.

A warrant MUST state where they are searching and what they are hoping to find.

This would allow a door to door search for drugs if a jurisdiction felt like it. They could enter every home and rip through the furniture and belongings searching for anything at all if they find anything your going to jail if they don't you sue them for damages and wait 2 years for a result spending thousands of dollars and bogging down the legal system.

Or they do like cops have done and present the evidence to a judge and get a lawful warrant to search a specific property.

Resisting when you are home is one thing what if they choose to enter your house without a warrant while nobody is home? Do you assume its a break in when you get home and everything is a mess? With no warrant is there even a paper trail to proove they were at your home?
What if they come back the next day while you are still out of town and enter on probable cause since the door is kicked in? What an individual cop "searched" your home and left behind something to find?

This ruling has way to many weak spots to be abused by both police and criminals. Leaving the law abididing citzens stuck.

 

[TheStatutoryApe]

This is exactly my opinion as well. You are granting access to peoples homes without a warrant or probable cause. This removes due process and consent to any search or seizure. Police can walk in any home at will and look for anything without following the judicial process.

Probable cause is still valid if you hear a fight or see something in progress then they have the right to enter. That said do not resist if they have probable cause.

A warrant MUST state where they are searching and what they are hoping to find.

This would allow a door to door search for drugs if a jurisdiction felt like it. They could enter every home and rip through the furniture and belongings searching for anything at all if they find anything your going to jail if they don't you sue them for damages and wait 2 years for a result spending thousands of dollars and bogging down the legal system.

Or they do like cops have done and present the evidence to a judge and get a lawful warrant to search a specific property.

Resisting when you are home is one thing what if they choose to enter your house without a warrant while nobody is home? Do you assume its a break in when you get home and everything is a mess? With no warrant is there even a paper trail to proove they were at your home?
What if they come back the next day while you are still out of town and enter on probable cause since the door is kicked in? What an individual cop "searched" your home and left behind something to find?

This ruling has way to many weak spots to be abused by both police and criminals. Leaving the law abididing citzens stuck.

It does not grant any powers to the police that they do not already have. Pretty much everything you have stated here in your post is rubbish. As with the justice's dissent it is hyperbole.

 

[DoggerDan]

Neither officers nor citizens determine what is and is not lawful.

What is with this site? Are you from another country other than the United States of America? Do you not understand our Constitution, our laws, the underlying tenet of belief that no man is either void of law, nor should be deprived of it's understanding, that most Americans actually do understand our own system of law and both work within it?

Your comment, TSA, speaks loads about what American is NOT. We are not a people who allow a government to ride herd over us nilly willy. We understand our laws, and when our government oversteps the bounds thereof, we take them to task. If they don't pass muster, we boot them out of office.

Ours is a government OF, BY, and FOR the People. Please enlighten me as to my misunderstanding of this concept with respect to the way my own country operates.

In MY country, the United States of America, law enforcement begins with the people. We know what's lawful and what's not, because we read. We know the law. We don't rely upon some higher-up interpretation. No matter how complicated our law might get, it's not beyond the grasp of our average citizen. We act in accordance with the law, and in countless cases, have enforced our own laws by stepping in during the time it takes sanctioned law-enforcement to arrive on the scene.

In OUR country, both officers and citizens determine what's lawful ALL DAY LONG. You're clearly confusing the role of the courts, who determine the punishment for those who incorrectly determined the law with respect to their actions.

Well, TSA, when you submit your profession as "harrasing people," as your profile explicitly states, you have yourself relegation your role here with respect to whether I'll ever respond to you again as NO.

Is there anyone else where who would like to discuss this issue in an intelligible fashion?

 

[TheStatutoryApe]

What is with this site? Are you from another country other than the United States of America? Do you not understand our Constitution, our laws, the underlying tenet of belief that no man is either void of law, nor should be deprived of it's understanding, that most Americans actually do understand our own system of law and both work within it?

Your comment, TSA, speaks loads about what American is NOT. We are not a people who allow a government to ride herd over us nilly willy. We understand our laws, and when our government oversteps the bounds thereof, we take them to task. If they don't pass muster, we boot them out of office.

Ours is a government OF, BY, and FOR the People. Please enlighten me as to my misunderstanding of this concept with respect to the way my own country operates.

In MY country, the United States of America, law enforcement begins with the people. We know what's lawful and what's not, because we read. We know the law. We don't rely upon some higher-up interpretation. No matter how complicated our law might get, it's not beyond the grasp of our average citizen. We act in accordance with the law, and in countless cases, have enforced our own laws by stepping in during the time it takes sanctioned law-enforcement to arrive on the scene.

In OUR country, both officers and citizens determine what's lawful ALL DAY LONG. You're clearly confusing the role of the courts, who determine the punishment for those who incorrectly determined the law with respect to their actions.

Well, TSA, when you submit your profession as "harrasing people," as your profile explicitly states, you have yourself relegation your role here with respect to whether I'll ever respond to you again as NO.

Is there anyone else where who would like to discuss this issue in an intelligible fashion?

Your whole post is an appeal to patriotism as a response to a single line of mine and you accuse me of making unworthy responses? That is a joke.

I am American by the way and, while neither a lawyer nor student of law, I have done a fair share of reading on the subject.

The courts do not just determine "punishment", they determine whether an action was indeed unlawful first and then determine punishment. In fact our court system quite frequently deems acts that were believed unlawful by some citizen or officer to have actually been lawful. Citizens and officers may not decide what is lawful, they may act reasonably and within their capacity to make determinations of what may be unlawful.

When you can discuss these issues with clarity rather than throwing about patriotic rhetoric I'd be glad to have a real discussion.

 

[ThomasT]

IMO, the trial judge should just have read the jury instruction tendered by the defendant in the original case, and left it up to the jury to decide whether the police entry was lawful or unlawful. This would have been in line with the long tradition of English common law (which, afaik, is what the US system of justice is largely based on) whereby a person has the right to reasonably/commensurately resist unlawful entry by anyone, especially agents of the government such as police officers.

Instead, the trial judge decided to not read the instruction, the defendant appealed that decision, and the ISC decided in favor of the trial judge's decision to not read the instruction based on the ISC's precedent setting opinion that a person does not have the right to reasonably/commensurately resist unlawful entry by police.

Therefore, IMO, the decisions by both the trial judge and the ISC contradict a fundamental tenet of the basis of US law as expressed in the 4th Amendment of the US Constitution.

 

[nsaspook]

Your whole post is an appeal to patriotism as a response to a single line of mine and you accuse me of making unworthy responses? That is a joke.

I am American by the way and, while neither a lawyer nor student of law, I have done a fair share of reading on the subject.

The courts do not just determine "punishment", they determine whether an action was indeed unlawful first and then determine punishment. In fact our court system quite frequently deems acts that were believed unlawful by some citizen or officer to have actually been lawful. Citizens and officers may not decide what is lawful, they may act reasonably and within their capacity to make determinations of what may be unlawful.

When you can discuss these issues with clarity rather than throwing about patriotic rhetoric I'd be glad to have a real discussion.

I will just add that citizens in the jury can decide guilt or innocent beyond the law. (jury nullification) So the determination of lawful actions is in the hands of the citizens in a jury trial to the point to totally ignoring current law. Officers of the court are sworn to uphold the law but you as a decider are not.

http://en.wikipedia.org/wiki/Jury_nullification

http://fija.org/

 

[Acetone]

@Ape:

Neither officers nor citizens determine what is and is not lawful. They may make a reasonable assessment of whether something is unlawful and act in a reasonable manner in response. If a person is on your property you may stop them and question them and request that they leave if they fail to show reasonable cause for them to be on your property. If they have been given reasonable opportunity to leave and have failed to do so then they may be considered trespassers at which point you may call the police or perhaps, depending on the jurisdiction, you may have the right to attempt to forcibly remove them.

Isn't this ruling in direct conflict with what you just said? As I read it if a officer enters a home and the occupants say 'you may not enter' NO resistence is allowed simply because they are police.

To give the police special rights which limits the peoples ability to actively resist against them when they are engaging in illegal activities is ridiculous.

 

[ThomasT]

IMO, the trial judge should just have read the jury instruction tendered by the defendant in the original case, and left it up to the jury to decide whether the police entry was lawful or unlawful.

It just occurred to me that this isn't what juries of peers are entrusted to do. They, traditionally, render decisions only wrt matters of fact, via the assumption that public officials would be less likely to act impartially.

So, was the trial judge correct in omitting the jury instruction tendered by the defendant in the original case? And, if so, was the ISC, in its affirmation of that decision, then correct in saying that what this means is that no person has the right to resist any entry, legal or illegal, to his private domicile by an agent of the government?

It does seem to me that the ISC decision gives powers to government agents that the 4th Amendment was intended to constrain.