Indiana Supreme Court: No Right to Resist Illegal Police Entry Into Your Home

[WhoWee]

In practice, this is almost impossible. My mother works for tips, and she'd put her tips away every day in a safe. My house was raided because of who my sister was dating at the time, they found my father's recreational drug stash (small amount of marijuana and a few prescription pain pills that weren't his), so they confiscated all of the cash in the house, including the 6k my mother had stashed away over the course of two years.

Because my mother didn't get a receipt from every customer who tipped her, the cops kept the cash, and my father just got a slap on the wrist for the drugs.

There were drugs involved.

 

[jambaugh]

Yes this is a bogus ruling:

Where the judge said:

"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,"

I am intrigued by the meaning of "modern". The fourth amendment hasn't been re-written has it? It wouldn't be the 4th amendment anymore but rather the umpteenth. But more telling is the "against public policy" and where he argues:

"We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

He is not appealing to the constitution but rather to what HE thinks the law should be. He's legislating not adjudicating. If he wants to use this argument to amend the constitution then that's fine but he hasn't the power to rewrite it based on such an argument.

The fact is that you have the right to shoot to death in self defense a corrupt police officer entering your house with the intent of doing you harm. You are not required by law or the constitution to (die and) wait (for your family) to sue after the fact.

Given that scenario and the question, "how are you to know he's a crooked cop, or a villain who bough a cop's uniform and badge at the costume shop?" the presumption is that if he's entering your house illegally in a suspicious manner you may make a presumption of ill intent.

Now this extreme case doesn't apply directly to the case cited. But by my reasoning it would parallel. As I see it, if an officer seeks to enter your property, and you do indeed have reason to believe he is acting in an official capacity, but he is acting outside his legal authority, you have the right to resist proportionately. I.e. you do not have to unlock your door. You can announce your intent to resist entry with violent force and then back it up if the officer ignores the warning.

The ruling is just plain wrong. The officer should have backed off when the man barred him from the house, unless he saw apparent injuries on the woman and thus had probable cause that a continuing crime was occurring, namely assault and battery... or he could have arrested the man and woman for disturbing the peace. I think the judge (mis)used this case to twist the constitution into the form he thought it ought to read.

 

[Newai]

If a cop forces his way into your home and assaults you unnecessarily, you have no recourse. It's his word against yours. The courts side with the cop.

Now, without a warrant a cop can enter your home in Indiana.

If a cop is going to do that, then it doesn't matter if you're in your home or not. A bad cop is bad inside and out. The point here is...

In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.

In this case, Mary Barnes had called for police. The officer entered because he was lawfully engaged in the execution of civil process:

Barnes told the officers that they could not enter the apartment and denied Reed‘s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, "don't do this" and "just let them in."

I don't agree with the ruling either, but I'm afraid some people are going to get the wrong idea about the circumstances in this particular case. The officer behaved appropriately and in a manner I would hope they all would given the facts. Unfortunately, the court is handling this too broadly.

 

[Newai]

The ruling is just plain wrong. The officer should have backed off when the man barred him from the house, unless he saw apparent injuries on the woman and thus had probable cause that a continuing crime was occurring, namely assault and battery... or he could have arrested the man and woman for disturbing the peace. I think the judge (mis)used this case to twist the constitution into the form he thought it ought to read.

Mary Barnes called 911 for assistance. That's all the officer needs to respond and intervene. To assess injury to the victim, the officer needs to interview the caller. He's not in a position to assess that from the doorway.

The ruling is another matter, though.

 

[BobG]

Because my mother didn't get a receipt from every customer who tipped her, the cops kept the cash, and my father just got a slap on the wrist for the drugs.

There were drugs involved.

Lucky they didn't confiscate her house, as well. Drugs, plus enough cash to purchase more than a person could normally consume in a few days? That sounds like the house is being used in drug distribution activities.

Actually, that would be a bizarre result for such a small amount of marijuana and such a small amount of cash. But, having children (or childrens' boyfriends/girlfriends, etc) that are selling drugs in your garage while you're at work could cost you your house.

http://www.cato.org/pubs/pas/pa-179.html

Notwithstanding these changes, however, in many jurisdictions, proof of "innocence" has come to mean a great deal more than mere proof that a property owner is not a criminal. Indeed, the owner must prove instead that he lacked both knowledge of, and control over the property's unlawful use. Thus, civil forfeiture not only makes a property owner his brother's keeper but compels him to prevent the unlawful use of his property by his brother, or anyone else for that matter. In many respects, this situation only exacerbates the disparity in the law's treatment of the criminally accused and the nonaccused property owner. To obtain a criminal forfeiture, the government must prove a defendant's intentional criminal conduct. To do that, it must prove both a bad act (actus rea) and a criminal intent (mens rea); mere knowledge of criminal activity by others is ordinarily not sufficient to justify conviction, as one must knowingly participate in a criminal venture to become a criminal. By contrast, to be exempt from civil seizure and forfeiture, a property owner must prove a negative: that is, he must prove he lacked any knowledge (mens rea) of the property's unlawful use, even though mere knowledge of criminal conduct is typically insufficient to establish criminal culpability under criminal law.

(Bolding mine)

 

[Jack21222]

Lucky they didn't confiscate her house, as well. Drugs, plus enough cash to purchase more than a person could normally consume in a few days? That sounds like the house is being used in drug distribution activities.

Yeah, you can go incredibly far distributing a small baggie of weed and 5 percosets. *eyeroll*

The plea bargain was my father got probation and he had to give up all of his legal guns in his house. I personally think it's because the police wanted my antique heirloom shotgun that I hadn't moved into my new house by the time of the raid. That thing was almost 100 years old.

 

[Alfi]

It's another witch hunt ... and their little dogs too hehehe

The Dog says your guilty. The cop believes him, without question.
( trained dog and all ...)
hummmm . Can I see the dogs 'true hit' number and 'false hit' numbers and the 'no hit' numbers please.
He's trained, but is he calibrated?

I'm stuck with a very bad feeling, that my future could possibly be badly effected by a dog's erroneous testimony. It would not be nice know they are wrong. Plain out wrong! The dog must be lying, or mistaken, but still still, off you go for Fingerprinting, Record Keeping information! Nice forward and profile pictures.
All the money I was holding because there was a tractor I wanted to buy.

why why ME ? We say.
Because the Dog said so. How accurate does a Dog need to be?
Perhaps your in a rental car, someone could have spilled a bit last ride... ?

I've stepped in this before. Stuff that smelled the same as this stuff.
And, it's expensive to wipe it all off.

Thanks to the belief in the training of the dog.
But ... They didn't fire you though did they Dog? ( Wrong again eh? Dog ! )
Even though all charges get dropped.
Eventually.
Wrong again eh? Dog ! Oppps MY bad. I just get a bad feeling, about the choice of, relying on a decision made by our four legged sensors.

Just a thought.

 

[Al68]

Lucky they didn't confiscate her house, as well. Drugs, plus enough cash to purchase more than a person could normally consume in a few days? That sounds like the house is being used in drug distribution activities.

Are you being sarcastic? A few days consumption's worth of cash is your criteria now? My God, the person who can afford to but doesn't have more cash than that on hand is a moron.

 

[drankin]

A cop shouldn't be able to enter your home without a warrant or to intervene into an impending crime. From what I read, a cop can now enter your home uninvited without a there being a crime to respond to. In Indiana.

 

[WhoWee]

Are you being sarcastic? A few days consumption's worth of cash is your criteria now? My God, the person who can afford to but doesn't have more cash than that on hand is a moron.

$6k will buy more than a few days consumption.

 

[Newai]

A cop shouldn't be able to enter your home without a warrant or to intervene into an impending crime. From what I read, a cop can now enter your home uninvited without a there being a crime to respond to. In Indiana.

I agree. I just want to be sure everyone knows that in this case Mary Barnes told the 911 dispatcher that Richard Barnes had thrown things at the wall in a violent manner, and the officer had to respond to it based on what the dispatcher relayed. When Reed responded, he had to interview Mary Barnes, but Richard Barnes wouldn't let him in. Reed did exactly what he was supposed to do.

 

[BobG]

Are you being sarcastic? A few days consumption's worth of cash is your criteria now? My God, the person who can afford to but doesn't have more cash than that on hand is a moron.

Only semi-sarcastic, as I implied in the next paragraph. The key is that police had reason to be suspicious of activity in the house already because of the daughter's boyfriend. That lowers the threshold for police abuse a lot, but, as I implied, lowering the threshold to the point that a small amount of marijuana and 6k in cash would be enough to confiscate the house probably doesn't carry a realistic probability.

But it is true that your house could be confiscated for something you have little control of just because of the people that your family members associate with. And those associations can cause you trouble whether you're one of the softies ("If they're at my house, at least know where my daughter is at.") or a semi-hardliner and your daughter only associates with shady friends when she leaves the house (a real hardliner would kick their daughter out of the house for having a boyfriend they found shady, but that would carry a downside, too, if you're like me and thought every boyfriend of your daughters were shady characters ).

And if I recall the results from the poll I posted a few years back about whether I should bail my daughter's boyfriend of out of jail, I think there must be quite a few that would set themselves up by being too soft-hearted.

 

[Al68]

$6k will buy more than a few days consumption.

Sure, but I was referring to the latter, not the former, in that post, which was about being prudent, not legality.

The $6K referred to earlier was stolen without any legitimate justification. Whether it was prudent for the owner to have it in her house is completely irrelevant.

 

[Al68]

Only semi-sarcastic, as I implied in the next paragraph. The key is that police had reason to be suspicious of activity in the house already because of the daughter's boyfriend. That lowers the threshold for police abuse a lot, but, as I implied, lowering the threshold to the point that a small amount of marijuana and 6k in cash would be enough to confiscate the house probably doesn't carry a realistic probability.

But it is true that your house could be confiscated for something you have little control of just because of the people that your family members associate with.

"Could be" is very different from "should be". This thread is about what should or shouldn't happen, not what could or couldn't happen.

My getting mugged and raped by big gnarly bikers could happen. My getting mugged and raped by Angelina Jolie should happen. Big difference.

 

[WhoWee]

"Could be" is very different from "should be". This thread is about what should or shouldn't happen, not what could or couldn't happen.

My getting mugged and raped by big gnarly bikers could happen. My getting mugged and raped by Angelina Jolie should happen. Big difference.

Careful what you wish for - there could be a miscommunication.

 

[Al68]

Careful what you wish for - there could be a miscommunication.

Doh!

 

[edward]

http://seattletimes.nwsource.com/html/nationworld/2015072154_scotus17.html

The plot thickens. This case was in Kentucky.

WASHINGTON — The Supreme Court on Monday gave police more leeway to break into homes or apartments in search of illegal drugs when they suspect the evidence might be destroyed.

The justices said officers who smell marijuana and loudly knock on the door may break in if they hear sounds that suggest the residents are scurrying to hide the drugs.

http://www.nytimes.com/2011/05/17/us/17scotus.html

The police do not need a warrant to enter a home if they smell burning marijuana, knock loudly, announce themselves and hear what they think is the sound of evidence being destroyed, the Supreme Court ruled on Monday in an 8-to-1 decision.

I need to remind my wife not to light those scented candles when I am on the potty.

Potty flushing is one of the things they listen for.

 

[TheStatutoryApe]

If the officers had a warrant before arriving at the home, then the criminals have no recourse. I don't see huge problems resulting from this arrangement.

I said probable cause. Less than a warrant.

Yes this is a bogus ruling:

Where the judge said:

I am intrigued by the meaning of "modern". The fourth amendment hasn't been re-written has it? It wouldn't be the 4th amendment anymore but rather the umpteenth. But more telling is the "against public policy" and where he argues: He is not appealing to the constitution but rather to what HE thinks the law should be. He's legislating not adjudicating. If he wants to use this argument to amend the constitution then that's fine but he hasn't the power to rewrite it based on such an argument...

...

...I think the judge (mis)used this case to twist the constitution into the form he thought it ought to read.

The "modern interpretation" of the fourth amendment includes "probable cause" and "reasonable suspicion". If any person may lawfully refuse and/or resist attempts by an officer to conduct a search because they do not personally believe that the officer has a legitimate reason then it throws out any ability of an officer to conduct a search without a signed warrant from a judge.

 

[Proton Soup]

http://seattletimes.nwsource.com/html/nationworld/2015072154_scotus17.html

The plot thickens. This case was in Kentucky.



http://www.nytimes.com/2011/05/17/us/17scotus.html



I need to remind my wife not to light those scented candles when I am on the potty.

Potty flushing is one of the things they listen for.

yeah, the problem is that cops lie about smelling marijuana. they simply bring a dog and say "the dog says...". i had it happen to me on a traffic stop once. it was about a week before the kids start showing up at the beach in droves, and the local police were practicing. i had a car only i had owned and never used drugs. cop picked up some random dried leaf that had gotten tracked in on the carpet and accused me with it, said the dog smelled that. then i get a warning for speeding and get sent on my way.

and they wonder why people don't like cops. it's because they have no integrity.

 

[BobG]

"Could be" is very different from "should be". This thread is about what should or shouldn't happen, not what could or couldn't happen.

My getting mugged and raped by big gnarly bikers could happen. My getting mugged and raped by Angelina Jolie should happen. Big difference.

The "what should happen" is based on protecting people from "what could happen". If there were no risk of unhampered police searches having a bad consequence for you, then what reason would there be to object to them?

If bad things couldn't happen, then the crowd that claims that only criminals have something to hide would be correct. Our civil rights are based on what could happen and are the reasons that our civil rights should be protected.

Plus, I wouldn't categorize the court ruling in the original post as something that should happen. It's something that did happen even though it shouldn't have.

 

[Char. Limit]

Am I the only one who is worried by the apparent violation of the fourth amendment in favor of "public policy" here?

I'm just glad I live in Washington, and not in Indiana or Kentucky...

 

[skippy1729]

Quoting from the NWITIMES link above:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

Quoting from the 9th amendment:

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

I seems Americans are plagued by rogue judiciaries at all levels.

Skippy

 

[Al68]

The "what should happen" is based on protecting people from "what could happen". If there were no risk of unhampered police searches having a bad consequence for you, then what reason would there be to object to them?

If bad things couldn't happen, then the crowd that claims that only criminals have something to hide would be correct. Our civil rights are based on what could happen and are the reasons that our civil rights should be protected.

Plus, I wouldn't categorize the court ruling in the original post as something that should happen. It's something that did happen even though it shouldn't have.

I think you misconstrued my post. I never made any claim about what could or couldn't happen. The point was whether an innocent person's property should be confiscated by government. You used evidence that it could happen to argue against my claim that it shouldn't happen. Hence my pointing out the difference between could and should.

 

[Brandon_R]

Am I the only one who is worried by the apparent violation of the fourth amendment in favor of "public policy" here?

I'm just glad I live in Washington, and not in Indiana or Kentucky...

You're not the only one good sir, I too am worried about how little by little our basic rights are being removed on the mere basis that we shouldn't follow something written centuries ago. I would like to think the basic laws/rights would run with us to the bitter end.

And something like this could very well move over to where you live in the future so i would keep my eye on it.

 

[BobG]

I think you misconstrued my post. I never made any claim about what could or couldn't happen. The point was whether an innocent person's property should be confiscated by government. You used evidence that it could happen to argue against my claim that it shouldn't happen. Hence my pointing out the difference between could and should.

Probably did, since I agree with you about what should happen, but the two posts I responded to seemed to imply that should happen meant it would happen. In other words, the should haves were just left hanging.

My posts were about why the issue is important - that the should have didn't match what the laws or the judicial ruling in the original post allow to happen.

When it comes to both the judicial ruling and civil confiscation laws, I feel they were both appropriate for the given situation, but were written so broadly that they wind up opening up opportunities for abuse. The combination of the two means that the impact of an unwarranted search allowed by the ruling won't necessarily be rectified by the court after the fact, regardless of what the judge thinks would happen.

 

[Al68]

When it comes to both the judicial ruling and civil confiscation laws, I feel they were both appropriate for the given situation, but were written so broadly that they wind up opening up opportunities for abuse.

Yes, but "written broadly" is putting it mildly.

The fifth amendment clearly prohibits property being "taken for public use, without just compensation". And either the property is being taken for public use, taken to settle a debt, or as punishment for a crime. If the latter, the owner of the property, not another person, must be convicted of the crime.

It would seem obvious that the "due process" required to deprive someone of their "life, liberty, or property", referred to in the fifth amendment applies to the property owner, not someone else, receiving due process. And it certainly doesn't mean allowing a property owner an "opportunity to prove their innocence" to get their own property back.

And if property is taken to settle a debt, the seventh amendment clearly requires a trial by jury, if the value exceeds 20 dollars (yes, I know the word "dollar" had a different meaning in that context, it was defined as ~1/20 ounce of gold).

Simply put, the example given of the $6K being confiscated from an innocent person, with the criminal act of another person being used as an excuse, clearly and blatantly violates the fifth amendment.

 

[TheStatutoryApe]

You're not the only one good sir, I too am worried about how little by little our basic rights are being removed on the mere basis that we shouldn't follow something written centuries ago. I would like to think the basic laws/rights would run with us to the bitter end.

And something like this could very well move over to where you live in the future so i would keep my eye on it.

Your right to be free of warrantless search and seizure by law enforcement below the federal level did not exist until 1961 when the court decided to reinterpret that centuries old document. The courts have actually little by little reinterpreted the constitution to give you more of your basic civil rights mostly within the last century.