Your home is no longer your castle.

[Gfactor]

@silenus

@FOX News

Last week, the Supreme Court ruled in its 5-4 decision in the case of Hudson v. Michigan that when police conduct an illegal, no-knock raid, any evidence they seize in the raid can still be used against the suspect at trial, even though the raid was conducted illegally.

I guess what gets me is that poor **Silenus ** was misled by the slanted description of the case (by . . . Fox News). **Silenus ** is a smart guy. I’m surprised he didn’t read the opinion himself.

On the one hand the lead at least discloses that it is the exclusion of evidence that is at stake here. But it fails to point out that the police had a warrant in Hudson. In fact, the word warrant appears only once in the article.

Also amazingly slanted is the author’s description of the holding in *Wilson * and generally misstatement the castle doctrine. I can’t say I’m surprised, or even disappointed. I’ve come to expect such things from this source. Normally I only consult Fox for entertainment. Allow me to illustrate briefly.

@Fox

It is grounded in the “Castle Doctrine,” which states that a man’s home is his castle, his place of asylum, and he has the right to defend it against intruders who would do him harm.

Sort of

@Wilson

Although the common law generally protected a man’s house as “his castle of defence and asylum,” 3 W. Blackstone, Commentaries *288 (hereinafter Blackstone), common-law courts long have held that “when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter.” Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K. B. 1603). To this rule, however, common-law courts appended an important qualification:

  "But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors . . ., for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it . . . ." Ibid., 77 Eng. Rep., at 195-196.

(Emphasis added.)

Like I said, the knock-and-announce rule protects your door–that’s it.

@Fox

the Court ruled in the case of Wilson v. Arkansas that the centuries-old common law notion that police should announce themselves before entering a private home was engrained in the Fourth Amendment. That is, it is an inherent part of the Constitution.

FindLaw's United States Supreme Court case and opinions.

Interesting . . . According to the Court

@Wilson

we hold that in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment.

I’m not interested in doing a sentence by sentence rebuttal of the author’s “research,” other than to point out that I doubt he did much. But let’s take a look at one more thing:

The decision in Hudson is almost certain to lead to more illegal no-knock raids, more mistaken raids on innocent people, and more unnecessary deaths, both of civilians and of police officers.

(Emphasis added.)

I’ll concede that more illegal no-knock raids and more unneccessary deaths are both possibilities. If that’s the case, it’s a bad thing. Of course states are free to pass their own rules about this, and *Wilson * notes that some have. Similarly, Hudson cites several federal statutes imposing similar rules.

But I fail to see how a no-knock rule will lead to more mistaken raids on innocent people. It’s definitely not certain that this will occur. In these cases, *Hudson * and the one cited by the author, law enforcement personnel had a warrant. Cops with a warrant are going to search. Moreover,

@Wilson

Finally, courts have indicated that unannounced entry may be justified where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.

(citing Ker).

I suspect that in the case the author cites (they thought there was a meth lab there), a court would excuse an unannounced entry. In other words, the entry in that case might not even have been “illegal.”

Is it too early to call “police state?” I just want to know. I’d hate to miss it.

Silenus, it’s not too early to call it a police state–it’s a little late. But what the hell: Go for it.

[TVeblen]

Don’t mean to ignore Gfactor’s excellent post but I should have made something clear to Bricker. Disagreeing on the court opinion is fine. Hell will freeze over before everybody agrees around here. The bait and switch tactic Bricker used against Little Nemo wasn’t right.

[silenus]

Somebody has to pick up the “Over-react to headlines without reading the whole article or decision” mantle that Reeder dropped. Looks like it’s me. :smack:
I still don’t trust The Man, however. Just sayin’…

[RTFirefly]

@Menocchio

KThe decision is more about covering cops who slip up proper procedure than it is about letting them burst in lest you flush the evidence down the toilet in the ten seconds you have after the knock.

As Art Buchwald said satirically 35 years ago, we don’t need a no-knock law; we need a no-flush law.

[Leaper]

@Gfactor

I guess what gets me is that poor **Silenus ** was misled by the slanted description of the case (by . . . Fox News).

In Silenus’s defense (sort of), the linked article is really more of an editorial than a news story, written by a hardcore libertarian who’s railed against SWAT teams and police powers for years.

He’s written nearly multiple articles per day on his blog about the consequences he forsees, never mind related issues like the Cory Maye case he mentions in the article. So I wouldn’t be surprised if he was a little… overzealous.

[Little_Nemo]

Bricker, allow me to explain myself seeing as you are doing such a poor job of it. I will not use any plural pronouns in order to avoid giving the appearance of speaking on behalf of or addressing any person other than you or I.

I was not appealing to the crowd. You were wrong when you thought this was true. I was pointing out a opinion that was already widely held by many people (myself included), not seeking to convert anyone to a cause or gather public approval. You were the first person to suggest the issue might be suited to a poll.

You repeatedly stated what my intent was. Your statements on this matter were incorrect. This is because you have no special insight into what I am thinking.

In addition, I am curious why you decided to make an issue out of pronouns rather than address the actual substance of my post. I could speculate on your motives for doing so but as it was wrong for you to do so towards me it would be equally wrong for me to do so towards you.

Therefore, while my previous post was correct, I will rephrase in a manner I hope you find less troubling:

Because I still believe that the rights of the citizens should have priority over the rights of the government. And that the Constitution was intended to protect the people from a too powerful government.

Now that I have clearly established what my opinion is, where do you stand on the issue of government rights vs citizen rights?

[Random]

@Fear Itself

Read the bestseller, “How to Stage a Successful Home Invasion” and learn how to yell “Police!” when you knock down your victim’s door. So many of them have read “What Cops Know”, they are all docile as lambs now.

It’s a tried and true method, dating back at least to 1929:

http://www.mysterynet.com/vdaymassacre/

“After a re-enactment of the crime, authorities concluded that the two men dressed as policemen entered the garage and acted as if they were police on a routine investigation. The Moran outfit automatically assumed that they were policemen on a routine sting. It was obvious that they didnt suspect anything questionable with the two uniformed killers or they certainly would have never been killed without a fight. But as it was, the mobsters seemed to have cooperated with the costumed officers and consequently let the fake policemen disarm them and force them up against the wall. As soon as their backs were turned, the two men in plain clothes entered with guns and shot them down.”

[Martini_Enfield]

A very interesting thread indeed!

I have to say that there is an aspect no-one has covered in the case of situations where the police blow someone’s front door off its hinges and toss the place looking for a Speed Lab, yet find nothing (because you’re not a drug dealer or chemist):

The fact that the neighbours have seen the police vehicles outside, they’ve seen the police officers take out your front door and vanish inside, and then re-emerge later and drive off.

Therefore, as far as your neighbours are concerned, you probably are a drug dealer or doing something untoward- even if the police were acting on inaccurate information.

And in Australia, at least, there’s no legal remedy for that. Neighbours think you’re a drug dealer because the cops tossed your house? Tough shit. Probably time to move somewhere else if you’re so bothered by it.

That’s not something I agree with.
If the police damage your property during a raid, they should be required to compensate you for it- even if they do find an army of Vietnamese slave-labourers in your basement, along with a shipping container full of illegal drugs, with a street value sufficient to finance every revolution in every two-bit Banana Republic in history.

I’m not going to jump on the slippery slope bandwagon here, but isn’t part of the answer to stop worrying about people with personal use quantities of marijana in their house, and go for people running the full-on drug labs?

[Bricker]

@Little Nemo

Because I still believe that the rights of the citizens should have priority over the rights of the government. And that the Constitution was intended to protect the people from a too powerful government.

Now that I have clearly established what my opinion is, where do you stand on the issue of government rights vs citizen rights?

As a general proposition, I do not disagree with your view. But certainly you would - I hope - agree that what is actually required is a balancing test. That is, it’s not true that in every instance where the two come in conflict, the rights of the people are given higher standing than the powers of government. If that were the case, of course, government would be utterly powerless.

So what the Constitution establishes is a reasonable balance, not a permanantly tilted scale. At some point, the balance must tip to favor government power. In the case of searches, for example, we acknowledge that a warrantless search is presumptively unreasonable, but also acknowledge certain exceptions, certain situations in which the presumption of unreasonableness is vitiated by the circumstances. A person who is being lawfully arrested, for example, may be searched without a warrant witout offending the Constitution.

Now, I hope you agree that that specific search is reasonable, and that it does not offend the Constitution, and I hope you therefore agree that the principle that warrantless searches are sometimes reasonable is also true, and I hope by virtue of those concessions, you also agree that rather than simply saying, “…the rights of the citizens should have priority over the rights of the government…” we must balance each claim and arrive at the meaning behind the Constitution’s guarantees. Yes?

If you do not agree with any step of reasoning in the chain above, please identify the point at which you depart therefrom.

[Bricker]

@TVeblen

What a comtemptible bit of weaseling. You claim Little Nemo’s use of ‘us’ was an appeal to popular opinion. Your rigorous standard was supposedly much different when you used it…see post #49:

How does one refute an argument ad populum?

My appeal to polling the voting citizens of the United States was not intended to show that since MY intended audience was in favor of the proposition, it was thus valid. It was, rather, intended to show that there is a flaw in appealing to a poll of people, unless the issue in question is in fact determined by the polling of people.

[Steve_MB]

@Bricker

when I said “us” I was referring to voting citizens of the United States, not SDMB members

Perhaps you could point to the portion of Little Nemo’s message that indicated that it referred exclusively to SDMB members.

(Please note that you will have to find something in the actual text of the message. My Penumbral Emanation Spectacles are in the shop being converted to bifocals.)

[Bricker]

@Steve MB

Perhaps you could point to the portion of Little Nemo’s message that indicated that it referred exclusively to SDMB members.

(Please note that you will have to find something in the actual text of the message. My Penumbral Emanation Spectacles are in the shop being converted to bifocals.)

Please read everything.

The line you quote above from me was not in response to Little Nemo.

Here, let’s review the bidding:

@Una Persson

What makes you so certain that your argument has popular support here?

Actually, don’t answer, as there isn’t a factual way to predict the leanings of the Board on any specific subject matter. Just set up a poll, and see what happens. Start an IMHO thread or use one of the many tools available on the net.

@Bricker

BUt when I said “us” I was referring to voting citizens of the United States, not SDMB members. I have very little question that the SDMB, which is not representative of the country at large, would lean as you hint.

Since I actually QUOTED Una Persson’s message when I replied to it, it mystifies me how you could believe I was responding to something else. But I hope that this ultra-clear explanation removes the confusion.

[Little_Nemo]

As a general proposition, I do not disagree with your view. But certainly you would - I hope - agree that what is actually required is a balancing test. That is, it’s not true that in every instance where the two come in conflict, the rights of the people are given higher standing than the powers of government. If that were the case, of course, government would be utterly powerless.

So what the Constitution establishes is a reasonable balance, not a permanantly tilted scale. At some point, the balance must tip to favor government power. In the case of searches, for example, we acknowledge that a warrantless search is presumptively unreasonable, but also acknowledge certain exceptions, certain situations in which the presumption of unreasonableness is vitiated by the circumstances. A person who is being lawfully arrested, for example, may be searched without a warrant witout offending the Constitution.

Now, I hope you agree that that specific search is reasonable, and that it does not offend the Constitution, and I hope you therefore agree that the principle that warrantless searches are sometimes reasonable is also true, and I hope by virtue of those concessions, you also agree that rather than simply saying, “…the rights of the citizens should have priority over the rights of the government…” we must balance each claim and arrive at the meaning behind the Constitution’s guarantees. Yes?

If you do not agree with any step of reasoning in the chain above, please identify the point at which you depart therefrom.

And as a general proposition, I’m mostly in agreement with you as well. While I feel citizens rights are the priority, I reject the libertarian notion that an absence of government power will serve those rights. Citizens that try to retain all their rights in theory will find themselves losing most of their rights in practice. The actions of individual citizens will inevitably overlap and compete and a government is needed to act as an impartial arbitrator. So the government should have enough rights to be able to effectively act to maximize the actual rights of its citizens.

So for me the test is this; any suggested infringement of citizen rights should need to show that the loss of this right will be compensated by the protection of some greater right.

But weighing each individual issue on a case-by-case basis is a arduous task. There is a temptation to shortcut the process. Proponents of government power will argue, “the government as a whole protects your rights - therefore whatever makes the government stronger serves to make the protection of your rights stronger.” This is of course a fallacy - it’s easy to think of hundreds of ways that the government can become more powerful without using that power to protect citizens rights.

And now on the specific issue of this thread; the Hudson decision. As I read it, the court accepts the principle of the 1995 Wilson decision that the police have an obligation to announce themselves before raiding a dwelling (which in my opinion is a good principle, a sound practice, and a legal tradition predating the United States). But while the Hudson decision theoretically upholds the Wilson decision, it removes the sanction of the exclusionary rule from any violation of that decision. (While I disagree with the exclusionary rule on other grounds, it is the de facto primary sanction used to control search procedures in this country.) My position is that removing sanctions for violating Wilson is not only as bad as overturning Wilson it’s actually worse. It would be one thing for the court to openly declare that Wilson was no longer the law of the land. But there’s no justification for the court to wink at the police and tell them “it’s still the law but you know what to do.” The Supreme Court should not be encouraging police officers to go rogue and that is what this decision does. If they get in the habit of ignoring one law that habit will inevitably spill over onto other laws and nobody can think that’s a good idea.

That’s my opinion anyway.

[Little_Nemo]

And rereading my post, I see that while I discussed the big forest and the little tree, I skipped over the patch of woods in the middle. I explained why I thought citizens rights were more important than government rights and I explained why I disagree with the Hudson decision. But I didn’t really link the two. Here goes:

Obviously, the police (in their role as police) are a function of the government. In many way, the police and the armed forces are the cutting edge of government power - without them all other aspects of government power are illusionary. So imposing limits upon the police is clearly a way of imposing limits on government power. In the issue of whether or not a citizen will be searched, if the answer is yes the balance swings towards the government and if the answer is no the balance swings towards the citizen (even if he’s not a particularly good citizen - in the eyes of the law, we’re all equal and laws written for criminals apply just as much to everyone else).

So if the needs of society dictate that citizens need to surrender some portion of the right to be safe from certain types of searches to the government’s right to conduct those searches, so be it. Good arguments have been made on aspects of the issue throughout legal history and I personally support many of them. But if you’re going to expand the government right to search come out and say so. Don’t say that the government doesn’t have a right to perform a search and then turn right around and say but if it does there’ll be no consequence. That may or may not be a necessary expansion of government rights but it’s certainly an underhanded one.

[Sailboat]

If rich, powerful people – people in the White House and the Supreme Court – actually felt that it was likely armed police would burst into THEIR houses on a no-knock search, this decision would never have happened.

It’s the comforting knowledge that this will only happen in someone else’s world – the world of all those miscreant peasants and possibly criminal poor people – that allows them to approve of this sort of thing.

Sailboat

[Bricker]

@Little Nemo

That’s my opinion anyway.

And I agree with it.

[Excalibre]

@Little Nemo

While I disagree with the exclusionary rule on other grounds, it is the de facto primary sanction used to control search procedures in this country.

Can I ask why you disagree with it?

[Steve_MB]

@Bricker

Please read everything.

I did. Followed the thread of messages (#49, #44) back to where you asserted (#39) that Little Nemo was (#35) relying upon the “cloakings of popular support”.

Actually, if I had to guess (since he doesn’t say one way or the other), I’d infer that the original statement “…some of us still believe that the rights of the citizens should have priority over the rights of the government…” refers to US citizens in general, not SDMB members in particular, in any case.

[Bricker]

@Steve MB

I did. Followed the thread of messages (#49, #44) back to where you asserted (#39) that Little Nemo was (#35) relying upon the “cloakings of popular support”.

Actually, if I had to guess (since he doesn’t say one way or the other), I’d infer that the original statement “…some of us still believe that the rights of the citizens should have priority over the rights of the government…” refers to US citizens in general, not SDMB members in particular, in any case.

Then you agree with my comment to Una Persson, yes?

Then why were you quoting it back to me and challenging me on it?

[Sailboat]

Ironically, the Google ads are currently all for animal traps.

Sailboat