Wednesday, May 18, 2011

Well, There Goes Another Amendment

For those of you not paying attention the Fourth Amendment was repealed this week.  First in Indiana we have a ruling in Barnes v. Indiana where the majority ruled that if the police want to enter your home for any or no reason you can't resist.  Writing for the majority justice Steven David said:
"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."
Starting with the Magna Carta in 1215, it was common law that
 "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter."
As Prime Minister William Pitt wrote in 1763.
Before and during the American Revolution the Red Coats pretty much busted into any house anytime they chose, because the colonists weren't considered "British Subjects", but "colonists".  Remember the whole "Taxation Without Representation" thing?  That's why they put:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In as Amendment #4. 

So if Johnny Law come busting through your doors and windows and you shoot back, you're now in deep doo-doo.  Doesn't matter if they raided your house because they got the wrong address on the "No-knock" warrant.   Sorry but with the easy availability of police badges and police equipment goblins have taken to "announcing" themselves police when breaking into people's homes so as not to get shot.  This makes it worse.  Fortunately this ruling was just limited to Indiana, but I fear it may spread.

Not to be out done, the US Supreme Court decided that the whole 4th Amendment needs to be tossed.  Bad cases make bad case law and this one is a bad case and this one is a prima facie example of how the 4th SHOULD work.  In all previous 4A cases, if the Police got the wrong house then anything they found was suppressed or tossed out as evidence.  Fruit of the Poisoned Tree was the term, meaning that if the warrant or the search (the "tree") is tainted, then any evidence gained from it (the "fruit") is as well. 
Previously the police needed to get a warrant after convincing a judge that they had probable cause to believe that a crime had been or was about to be committed.  Only then could they enter your home or other property.  Over the years there were "exigent circumstances" permitted:  Someone screaming for help, flames or smoke emanating for the structure, or in hot pursuit of a fleeing felon.  But that those where very narrow and very limited and the police could NOT create them. . And over the years bad people got away with bad things because the police didn't follow the rules.  Evidence illegally obtained was tossed and the perp walked.

Now, police officers and other agents of the state simply need to say "exigent circumstances"  and all evidence is admissible, no matter how badly obtained.  Fruit of the Poisoned Tree is gone.  You have no right to refuse entry to any agent of the state, and anything they find they can use against you in court.  Almost 800 years of Common and Codified Law gone in a moment.

But what really torques me is that:
1)  Justice David was appointed by Gov. Mitch Daniels.  So if he decides to run for President this appointment is an albatross around his neck. and
2)  This is one of those very rare times I agree with Justice Ginsberg.

Now before everyone accuses me of being a Cop Basher, remember I was a Military Police Office in the Army. A Combat Cop.  I know a little about Law Enforcement as I was one.  But, I know that my first Duty is too the Constitution.

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