No Longer Your Castle

No Longer Your Castle

Your home is your castle.  That’s what they say, but recent decisions by the Supreme Court of the US 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 US 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 which 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 rational 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 which 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 not to come in – 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 summarized the essence of the case in her lone dissent when she asked, “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will … and forcibly enter?”

That 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 clearly illegally.

This core precept of defense of home – against all invaders – 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 – if they can afford an attorney.

To top it all off, the Indiana Court ruled that police on the scene discretion to decide whether to use “No-Knock” and “Dynamic Entry” techniques when serving warrants rather than having to get a judges permission – removing the last vestige of external oversight over such raids.

When police have unlimited power and citizens have limited rights, that condition is called a police state. The road to that state is being paved while America watches TV.

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