IANALE, but it seems to me that you have the right to safe from unreasonable search and seizure. That means the cops can’t come in, willy nilly, and search your home. They need a warrant or reasonable cause. Additionally, they have to identify themselves as police officers. You can’t resist, but if they don’t really have “reasonable cause” or a warrant, you can sue their ass (actually, the PD) in court. It is not unusual for people win these cases.
Well, with this ruling, they can “come in, willy nilly, and search your home.” It just doesn’t (apparently) cover anything that happens after that, like whether they can use what they find, and any consequences they might face.
That’s because it doesn’t change anything that regard. They will face all the same consequences they would normally face for entering a home unlawfully:
-Discipline at the departmental level
-Any evidence acquired would not be usable in court, so if their unlawful entry acquired important evidence against a major criminal the case against that criminal would be significantly weakened
-There can be civil suits filed against police officers that violate the rights of citizens.
All this ruling seems to say is you can’t use force to throw a police officer out of your house based on them being there unlawfully. I don’t understand why people confuse that for “now police can acquire evidence from your house under any circumstance they wish and it can’t be thrown out of court as improperly acquired.”
Sure, it can’t be used as evidence in court. Good luck getting it back from the police.
It would depend on what it was, of course.
At this point I’d take less safety and more freedom.
Not really.
No one gets their stash of cocaine back, or their weed, or their illegal weapons and frankly no one expects to.
But good luck getting back anything you own which is legal and which gets confiscated or otherwise impounded by an officer, even if he did enter your house illegally.
Luck would not be involved, only bureaucracy. If the police come into personal property and they did not seize it as part of a criminal operation and they have no statutory right to keep it, the proper owner will have it returned.
No way this can stand. The people of Indiana need to clear house on their State Supreme Court and start over.
Just at this point? IMHO, for any and all times, the balance for this comes down on the side of freedom. In other words, I think your statement can justifiably be even more emphatic. Honestly, I’m not understanding the support for this decision.
Although it’s entirely possible that I misunderstand the scope and impact of the decision.
Given that it is common enough that LEOs do act illegally, it would seem that it’s not just the homeowner who lacks that knowledge. (Granted, a homeowner may not have as good an idea of legality as an LEO, but that doesn’t change my point.) IMO, the ability and power to encroach on private property requires a high assurance of propriety – we should at least be striving for there to be almost no question of legality in most situations. And accepting illegal entries as par for the course weakens that assurance, and unacceptably so IMO. Personally, I think that the power of the state needs to be tempered to a high degree.
Of course it does. It changes the default position of acceptable – nay, allowable – homeowner action. Or, in equivalent but more loaded terms, it says that the new normal is that a homeowner must submit to authority – even when said authority’s actions are known to be illegal.
Of 3/5ths of it, anyway.
People have problems getting their goods back when they’re recovered after a robbery. It took 8 months after the thief was behind bars before I was able to get back a ring that had my damn name engraved in it.
That’s the thing that’s most worrisome here. If I know a cop is entering my home illegally, and I cannot stop him from doing so, sure I can eventually get back anything he decides to confiscate, sure nothing he takes can be used against me at trial, sure I can sue for damages for anything broken or lost, sure I can sue for the civil rights violation.
But that doesn’t change the time I might spend in jail, or the expense I’ll face for attorneys to defend me when I’m arrested on bogus charges, and to file a civil suit against the police department. That doesn’t ensure my property is going to be returned to me, or replaced if trashed. That doesn’t magically de-traumatize my family (or unkill my dog, cops busting into houses are well known for shooting family pets) or restore my reputation in my community.
Being able to sue is cold comfort in such a case.
And let’s not kid ourselves: the people that are most likely to be affected by police acting extralegally are exactly the people who are least able to afford attorneys to file complex civil suits against public officials.
Getting your stuff back takes time, sometimes a LOT of time. You might have to wait until after your civil court case is over.
For someone who runs a small business out of their home, having their computer confiscated (and that’s pretty much SOP) not only means their home has been illegally entered, but they’ve also lost the means to continue their livelihood. They’re out of business until they get their stuff back. Kind of serious stuff.
I understand the effects of someone being unjustly accused of a crime. But relating these comments back to the actual case at hand in the OP, how would using violence against a police officer who is illegally trying to search your house relieve you of any of these problems?
If some Bad Lieutenant type cop just decided to kick down your door and ransack your house, totally without justification, and you shot him, do you think that all those problems would just melt away? That you wouldn’t need a lawyer, wouldn’t have your life placed under investigation, wouldn’t have your family traumatized?
I’d like to see what would happen if the cops pulled this shit on someone they didn’t know was a judge, an assistant district attorney, or a senior member of the governor’s staff.
Most scholars trace this to section 39 of the Magna Carta:
It was judicially recognized in Hopkin Huggett’s Case, 84 Eng. Rep. 1082 (K. B. 1666), where an illegal arrest that led to the death of the arresting constable was excused on the basis of the illegal arrest:
From the east coast…
http://www.nydailynews.com/news/ny_crime/2011/05/13/2011-05-13_rape_cops_trial_lawyer_for_nypd_officer_kenneth_moreno_says_no_dna_no_case.html?r=news
To the west coast…
Hide yo children, hide yo wives.
Yeah, it happens. Frequently enough that we hear about it.
Because IIRC, there have been decisions in recent years that have upheld the validity of police using the information gained in an illegal search. IANAL and all that, so take this with the appropriate grain of salt.
You seem to be of the impression this has changed how allowable illegal entry is. If a police officer enters your house unlawfully he will still be subject to all the same legal and disciplinary actions he was before this ruling. The only thing he won’t be subject to is your using a club to beat him until he leaves.
Without being deeply familiar with our criminal justice system, I would like to hear from any LEOs or criminal attorneys as to how often home owners did just that to a police officer who entered unlawfully and didn’t face serious legal consequences.
Your argument is like saying:
“A shop owner is not allowed to gun down a shoplifter, therefore the shop owners has no protections against shoplifting.”
That’s ludicrous, the shop owner can still file a police report, can hopefully see that person arrested, and the person will suffer the legal consequences.
And this ruling doesn’t change any of that. As I already said, your Fourth Amendment rights have been violated the moment the officer enters your house unlawfully. What happens after that does not change that fact. They remain violated whether you passively wait for the officer to leave or use a club to drive him out.
I can assure you that all those expenses you’ve worried about are just as present in other States and were just as present in Indiana prior to this ruling. If a police officer tries to enter my house unlawfully in Virginia, and I use force to expel him, here is what will happen:
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I’m arrested for several of various possible crimes. Assault, resisting arrest, probably many I can’t think of.
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I have to post bail to get released.
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I have to get a public defender or pay for a private lawyer to have those charges thrown out. At this point my lawyer will begin examining the legality of the LEO’s entrance into my home, and presuming it was illegal he will hopefully be able to convince a judge of that fact.
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If I wish to gain financial compensation from the police department, I will have to retain another lawyer for that case.
So how exactly is any of that different based on whether or not I have the right to physically throw the guy out of my place?
Let’s also not forget the possibilities I’ve not mentioned:
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While trying to throw the police officer out, I get the living fuck beat out of me because I’m just one middle aged guy against a police officer who has a baton, pepper spray, taser et al not to mention a gun. He will probably not be alone.
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While trying to throw the police officer out I decide to use one of my own weapons, and am shot and killed, or shoot and kill the police officer. Then I’m on trial for murder.