Ciao IVth Amendment

[samagon]

Indiana Supreme Court ruling against the 4th Amendment.

http://www.chicagotribune.com/news/chi-ap-in-police-unlawfulen,0,6950521.story

And the Supreme Court of the United States of America just yesterday made this ruling:

http://www.washingtonpost.com/politics/supreme-court-affirms-police-action-in-kentucky-drug-case/2011/05/16/AFHpSD5G_story.html

8 - 1 no less.

I love this country, but like less and less where it is going.

[RedScare]

This is a direct assault on the US Constitution. When I was a prosecutor, I routinely advised police officers that they could not enter a residence merely because they smelled marijuana (note that police may search your car if they smell marijuana). Unless the resident consented, a warrant was required. Now, the Supreme Court says, "No problem! Barge on in." And, other than the obvious, that people with badges and guns may kick in your door at any time, the big problem here is that there is no way to confirm that the police DID smell marijuana, or that it was emitting from YOUR residence. While most cops are honest, there are some overzealous ones, and this ruling simply tells those cops to claim, "I smelled marijuana". It doesn't matter if none is found, only that the officer says that he smelled it. There is no requirement that a judge review his probable cause, as would be required to get a search warrant.

This is a sad day for those who believe the Constitution is a pretty good document, and one of the reason America is a great place to live. And to think that we are giving up the 4th Amendment over a few marijuana joints, a substance the majority of Americans believe should be legal in the first place. Truly surreal.

[Jeebus]

Red, I'm no lawyer, but I read the ruling to state that the court simply clarified that a person has no right to resist to an illegal entry of the police into their home. I thought the idea was that if the police did so, that it would just be thrown out in court, as protected in the 4th amendment.

Why would we want to empower the ignorant (and even the stupid) to think they have the right to shoot police on site, just because they thought they might have been infringed of their 4th amendment right? Allowing so would have only opened Pandora's box, and done nothing for the justice system.

Here's another example of a similar case, in the news:

http://www.nwitimes.com/news/local/govt-and-politics/article_ec169697-a19e-525f-a532-81b3df229697.html

[samagon]

Red, I'm no lawyer, but I read the ruling to state that the court simply clarified that a person has no right to resist to an illegal entry of the police into their home. I thought the idea was that if the police did so, that it would just be thrown out in court, as protected in the 4th amendment.

Why would we want to empower the ignorant (and even the stupid) to think they have the right to shoot police on site, just because they thought they might have been infringed of their 4th amendment right? Allowing so would have only opened Pandora's box, and done nothing for the justice system.

Here's another example of a similar case, in the news:

http://www.nwitimes....b3df229697.html

I'm sorry, but it's damn hard for me to believe that just because someone bangs on a door and yells "police" 3x that the homeowner is going to believe the people knocking are police. It is very easy to see someone defending themselves and their home from invasion by shooting to kill once the door was knocked down. I can imagine that the person defending himself would not live much more than a few seconds after that, but that would be tragic.

The next logical step is that guns get taken away, oh, but we have the right to bear arms don't we? just like there's The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...

see where this goes?

what comes next? do we get to watch the amendment that says a president can only hold two terms of office go away 'for the good of the security of the nation' what then? no voting?

so long as it is for the good of us all!!!

[Jeebus]

I'm sorry, but it's damn hard for me to believe that just because someone bangs on a door and yells "police" 3x that the homeowner is going to believe the people knocking are police. It is very easy to see someone defending themselves and their home from invasion by shooting to kill once the door was knocked down. I can imagine that the person defending himself would not live much more than a few seconds after that, but that would be tragic.

I can agree with that, but when you play the IF game all day we're left with total law or no law. There has to be a gray muddy middle with some things that seem pro-citizen and some pro-law enforcement.

[LTAWACS]

The police where chasing/looking for the suspect. They thought he was in there and knocked. They heard noises and thought the occupants where destroying evidence. The police barged in and made the arrests.

Seems pretty clear cut to me.

I doubt the police will randomly drive down the street (in any part of town) stop, walk up to the front door, and barge in because they smelled something. They were chasing the suspect for a reason.

[Jeebus]

I think the worry is that this ruling will allow more unscrupulous police officers to lie their way into homes, much the same way some have lied in the past by planting evidence.

[KinkaidAlum]

The police where chasing/looking for the suspect. They thought he was in there and knocked. They heard noises and thought the occupants where destroying evidence. The police barged in and made the arrests.

Seems pretty clear cut to me.

I doubt the police will randomly drive down the street (in any part of town) stop, walk up to the front door, and barge in because they smelled something. They were chasing the suspect for a reason.

Did you even read the articles? The suspect they were chasing wasn't in the apartment they broke into.

Color me unimpressed with everyone but Ginsberg in that decision. The 4th Amendment is clear and America has seemed to work fine without adjusting it. Why now?

For all the talk about how much we love freedom, we sure do give it away without a fight when it's in the name of safety or protection.

[RedScare]

Red, I'm no lawyer, but I read the ruling to state that the court simply clarified that a person has no right to resist to an illegal entry of the police into their home. I thought the idea was that if the police did so, that it would just be thrown out in court, as protected in the 4th amendment.

Why would we want to empower the ignorant (and even the stupid) to think they have the right to shoot police on site, just because they thought they might have been infringed of their 4th amendment right? Allowing so would have only opened Pandora's box, and done nothing for the justice system.

Here's another example of a similar case, in the news:

http://www.nwitimes.com/news/local/govt-and-politics/article_ec169697-a19e-525f-a532-81b3df229697.html

Jeebus, the Supreme Court case and the Indiana case are two separate and distinct issues. The Indiana case states that the resident may not resist an illegal entry with violence. While the right to redress in the courts for an illegal entry may be of dubious value (judges routinely take the officer's word, even when it is clear they are manipulating the facts), the alternative is worse, making an already dangerous situation of entering a residence more dangerous. There are already laws against using violence to resist an illegal arrest for the same reasons. This appears to extend the law to illegal entry. Note that a person may use force to defend himself against an officer using unlawful force against him. This ruling does not change that rule.

The Supreme Court decision, however, makes the entry without a warrant legal to begin with. If the officer claims he "smelled marijuana", and believed the resident was "destroying evidence", or some other dubious claim, the Court states that he may enter without obtaining a warrant. What the case has done is drastically expand the "exigent circumstances" under which officers may enter without a warrant. In the past, officers could enter a home if they believed someone was in danger, or if they were in hot pursuit. Now, if they claim they smelled illegal substances and hear movement in the home, they may claim that they thought evidence was being destroyed, and barge in. Note that it doesn't matter if they are wrong, only that they give a reasonable belief that it is occurring. So, if you are smoking clove cigarettes, and an officer smells that from your porch, knocks on your door, and you do not immediately answer, he may come in on the theory that your delay was so that you could destroy marijuana.

[LTAWACS]

Did you even read the articles? The suspect they were chasing wasn't in the apartment they broke into.

Slow down.... Yes I read the article.

I realize they police were not in hot pursuit. But they were still looking for him. And they thought he was in that particular apartment.

This would not have happened if the perp had not engaged in illegal activity.

[LTAWACS]

Jeebus, the Supreme Court case and the Indiana case are two separate and distinct issues. The Indiana case states that the resident may not resist an illegal entry with violence. While the right to redress in the courts for an illegal entry may be of dubious value (judges routinely take the officer's word, even when it is clear they are manipulating the facts), the alternative is worse, making an already dangerous situation of entering a residence more dangerous. There are already laws against using violence to resist an illegal arrest for the same reasons. This appears to extend the law to illegal entry. Note that a person may use force to defend himself against an officer using unlawful force against him. This ruling does not change that rule.

The Supreme Court decision, however, makes the entry without a warrant legal to begin with. If the officer claims he "smelled marijuana", and believed the resident was "destroying evidence", or some other dubious claim, the Court states that he may enter without obtaining a warrant. What the case has done is drastically expand the "exigent circumstances" under which officers may enter without a warrant. In the past, officers could enter a home if they believed someone was in danger, or if they were in hot pursuit. Now, if they claim they smelled illegal substances and hear movement in the home, they may claim that they thought evidence was being destroyed, and barge in. Note that it doesn't matter if they are wrong, only that they give a reasonable belief that it is occurring. So, if you are smoking clove cigarettes, and an officer smells that from your porch, knocks on your door, and you do not immediately answer, he may come in on the theory that your delay was so that you could destroy marijuana.

Interesting... thanks for the clarification.

[RedScare]

I doubt the police will randomly drive down the street (in any part of town) stop, walk up to the front door, and barge in because they smelled something. They were chasing the suspect for a reason.

Actually, this does happen on a regular basis. I know from personal experience (in advising police officers). In the past, I advised them that they could not enter the house or apartment on smell alone. It appears that the Supreme Court now considers my advice rather restrictive in the fight to eradicate the evil weed from the American landscape.

[samagon]

Actually, this does happen on a regular basis. I know from personal experience (in advising police officers). In the past, I advised them that they could not enter the house or apartment on smell alone. It appears that the Supreme Court now considers my advice rather restrictive in the fight to eradicate the evil weed from the American landscape.

what really scares me is the conspiracy angle, and the crackpot theories of death and mayhem, and the future police states of america.

what's to stop a politically motivated search, on the pretense of 'oh we smelled weed' viola, they get to search your house now, and detain you, and thanks to one of the executive orders, they get to hold you for as long as they want for no reason at all, and even after you are found innocent of whatever it was you were supposed to have done, they can still detain you.

that is the bleak and scary future that I hope we never see, I doubt we will, but looking at history of the rise of Nazis and other such things, it's amazing some of the things that happen that people think are small steps, and end with tyranny.

Sorry, I'll just go put the tin foil back on my head now.

[20thStDad]

Usually I fall into the category of letting cops do just about anything to catch a criminal (traffic offenders not withstanding), but I'm with most everyone else on this one. I don't like it at all. It's already too easy for cops to lie. Hot pursuit is one thing, but think of other cases where there are political pressures to make an arrest - this is just one more tool the DA/cops can use to get what they want. It's not about the 95% of cops who are honest and would never do this, it's about those few who might.

[LTAWACS]

hrm... i see... something to consider... how long before we see the first cases of "misuse"?