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Home your castle? Not anymore

Posted By Jeff Knox On 05/27/2011 @ 1:00 am In Diversions | Comments Disabled

Your home is your castle.

That’s what they say, but recent decisions by the Supreme Court of the U.S. and the Indiana Supreme Court have left the castle walls in a pile of rubble – along with the Fourth Amendment. These decisions pit the rights of persons to be secure in their homes against the ability of the police to take certain actions in the name of public safety.

At the U.S. Supreme Court level, the justices have been chipping away at the Fourth Amendment for decades, mostly under the cover of the war on drugs. They have drastically lowered the bar concerning the admissibility of evidence obtained by police during an illegal search or the issuance of warrants based on questionable information. Now the court has taken another swing at the castle walls with their legal wrecking ball.

There have always been exceptions to the prohibitions against police entering private property without a warrant. These exceptions are legally referred to as “exigent circumstances” and include such things as hearing screams for help from inside, directly following a fleeing felon into the residence or seeing a person (or crucial evidence) in imminent jeopardy, but the court’s new ruling adds an interesting twist to “exigent circumstances.”

One controversial exigent circumstance that has been accepted is that bit about destruction of evidence. When police see or hear or otherwise perceive that evidence is being destroyed, they have a compelling need to intervene in the name of justice. This rationale is most often used during service of drug-related search warrants to justify “dynamic entry” – kicking down the door – when officers say they hear sounds like repeated toilet flushing.

In an 8-1 decision in Kentucky v. King the court broadened the scope of exigent circumstances when they let a drug conviction stand that was based completely upon evidence discovered in such a dynamic entry into an apartment. What makes this particular case unusual is that the officers did not have a search warrant and no one in the apartment was being sought as a suspect in any crime.

The police were in the apartment complex looking for a suspected crack dealer who had slipped away from them. As they were wandering around the complex, they thought they detected the smell of burning marijuana coming from a particular apartment. The officers pounded on the door and yelled “Police!” and then heard hushed voices and scuffling and shuffling inside the apartment. They said they interpreted these noises as people attempting to hide or destroy evidence and immediately breeched the door. Inside they found several people, one still smoking a joint, and marijuana and cocaine in plain view on the couch and coffee table.

Even though the police had no warrant and the invasion of the residence would be considered illegal under most circumstances, the court ruled that the evidence discovered during the impromptu search was admissible because the residents failed to invoke their Fourth Amendment rights – by telling the police to go away – and instead made noises which lead the police to believe that evidence was being destroyed.

The fact that so much evidence was found in plain sight suggests that what the officers heard was not the sound of evidence being destroyed at all. Ruth Bader Ginsburg pointed out in her lone dissent that in this case, the police created the exigent circumstance (if it actually existed) by pounding on the apartment door without sufficient probable cause.

She pointedly asked, “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will … and forcibly enter?”

Bader Ginsburg’s question leads directly into the decisions from the Indiana Supreme Court, where the court ruled that a resident does not have the right to resist police entering his home, regardless of the lack of a warrant or exigent circumstances.

In other words, illegally.

This core precept of the home as castle goes back as far as the Magna Carta, but the Indiana court suggested that it has become obsolete and that rather than resisting, residents should acquiesce to unlawful police intrusions and demands and then seek redress through the courts later.

The other decision out of Indiana throws more gasoline on the Fourth Amendment bonfire, as it gives police on the scene discretion to decide whether to use “no-knock” and “dynamic entry” techniques when serving warrants.

Until the Indiana ruling, no-knock warrants had to be approved by a judge unless the action was triggered by immediate and pressing exigent circumstances. At least when police had to justify a no-knock warrant to a judge, there was some level of oversight in the decision to employ such violent and inherently dangerous methods.

The loosening of the standards under which police can legally kick the door in has real world – and bloody – consequences.

In Tucson, Jose Guerena, 26, a former Marine and veteran of two tours in Iraq, was gunned down in his bedroom by Pima County Sheriff’s SWAT officers serving a drug-related, no-knock warrant in early May. Guerena responded to the startled screams of his wife by grabbing a rifle. He was shot some 60 times. The Sheriff’s Office first claimed that Guerena had shot at them first, but later withdrew that claim. No drugs were found.

Meanwhile in Detroit, a 7-year old girl sleeping on her grandmother’s sofa was shot as a SWAT team crashed into the home looking for a murder suspect. Turns out they had the wrong house. The murder suspect lived next door.

Then there is the case of Cory Maye, a young man I’ve written about several times over the past few years. Maye fired blindly as intruders crashed through a back door into his baby daughter’s bedroom. One of the intruders was hit. In the next moment the intruders identified themselves as police officers and Cory Maye immediately surrendered. He was convicted of murder of a police officer and sentenced to death.

After almost 10 years in prison, Maye won an appeal last year and should receive a new trial later this year.

As a Second Amendment advocate, I tend to support a “conservative” view of judges and justices, but that liberal/conservative paradigm doesn’t always work when it comes to matters of the law. Law-and-order conservatives tend to trust the police in their decisions regarding crime and punishment, while liberals interpret the Bill of Rights liberally until they get to Amendment II.

Justice Clarence Thomas tends to lean libertarian more than the other justices, but even he errs to the side of law enforcement in questions involving the war on drugs.

Of course, all of that law-and-order, curtail-the-criminals’-rights stuff sounds great to a lot of run-of-the-mill conservatives (and many liberals as well), until it’s you that someone is calling a criminal for some reason – whether it’s drugs, guns, taxes, EPA violations, false charges of domestic violence or child abuse from a vindictive ex, mistaken identity or a myriad of other potential circumstances which could bring the police to your door.

The fact is, when the police have all the power, you have a police state. In May of 2011 we have passed some significant mile markers on the way down that road.


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