Saturday, May 21, 2011

The 4th Amendment be damned?

There is THIS from Indiana, and THIS from California.

The Indiana case is even worse than California's.  Look at this:

 INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

Z:  At least in California it seems that they can "only" enter your home if you're suspected of having driven under the influence, which is still horrible, of course (the DUI and the entrance):

 (AP) SAN FRANCISCO Police may enter Californians' homes without warrants to arrest those suspected of driving under the influence, the California Supreme Court ruled Thursday in a case testing the scope of the Fourth Amendment right to be free from unreasonable searches and seizures.


The 6-1 decision follows similar rulings in about a dozen other states. A dissenting justice said the majority handed authorities a "free pass" to unlawfully enter private homes and arrest people without warrants.


Under the Fourth Amendment, authorities are prohibited from entering a home and making an arrest without a warrant unless so-called "exigent" circumstances are present. Those include "hot pursuit" of a fleeing felon, imminent destruction of evidence and the risk of danger to the police or other persons inside or outside of a house, among others.


In this case, Justice Marvin Baxter wrote that the loss of evidence at issue was obtaining a measurement of the suspect's blood-alcohol level. Baxter added that a contrary ruling would allow "the corruption of evidence that occurs when the suspect takes advantage of any delay to ingest more alcohol -- or to claim to have done so -- or when the suspect evades police capture until he or she is no longer intoxicated."


Baxter and the majority was cautious in saying the decision would not give police carte blanche powers.

Z: I want to thank Carol at HER BLOG for bringing these things to my attention...   Is anybody who lives in Indiana hearing about your situation, which seems EONS worse that in California?  By the way, in California, I can go along with the situation described above because if someone runs from their car into their house while drunk and then a warrant must be served, the breath test will be invalid after some time; the alcohol dissipates with time....so is this as bad as it sounds?  As bad as Indiana's laws?

Since Carol had already blogged it at her excellent blog, I'd have hesitated to post this at all (though I think it needs even more exposure) but I post it so I can tell this funny and very true story:

Most of you know I had the amazing experience of living in Paris for four years.   At one social event, there was a policewoman there who told me something I wanted to share with you.  In France, search and seizure is a daily thing; they see something they feel is endangering or bothersome to people and the cops  take care of it, whether it's into one's home or one's car.   It's been done there forever and they don't look at it as unusual...EXCEPT, the policewoman told me the French love American "crimmies", or TV CRIME STORIES, and I laughed my head off when she told me "Now, we say we are coming in and the people inside say 'Do you have a warrant?'   We have to tell them 'we are in FRANCE, not America, we do not need a warrant, let us IN!"    She had to laugh, too!  I thought that was hilarious........and it seemed fitting for the situations above. (I must admit she didn't laugh quite as hard as I did). 

But, let's go back to America........What's your take on these Fourth Amendment situations?   How can Americans allow this to happen?  Is the California ruling as bad as Indiana's?  What's next?

geeeeeeeeeeeeeeeZ



38 comments:

Mustang said...

There have been at least a dozen Fourth Amendment cases in the past twenty years; most Americans are not even aware that courts have rendered their decisions. Recently, the US Supreme Court ruled in a case in which police entered the home of a known cocaine dealer in order to preclude him from flushing the drug down the toilet. In an 8-1 decision, SCOTUS ruled that police were justified invading this man’s home by the circumstances, Justice Ginsberg dissenting. In this case, all but one justice decided that the police have a right to enter without a warrant. I’m with Ginsberg on this one.

In King v. Kentucky, Judge Alito incredibly opined, “The Fourth Amendment has drawn a firm line at the entrance to the house. When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen may do.” Yet, this isn’t the decision of the Indiana Court. Giving police extraordinary power of entering a home without a warrant, while at the same time ordering citizens not to resist, even when such entry is illegal, is not what James Madison intended. It is not what the Fourth Amendment says.

These federal and state decisions take us one-step closer to a police state. None of us can feel good about that.

Brooke said...

This MUST go to the Supreme Court while we still have enough sane judges to overturn it!

Slowly, they are taking away our rights. Our privacy. Our autonomy.

Bd said...

This is what happens when you sell out the constitutions to the right.

Bd said...

Really? And you're believing this based on the obscure web site as sources? Lol!

Louis H. said...

BD is typing messages to her selve. This is not something one see every day.

Z said...

The Pope blessed those on the Endeavor. Think the liberals will complain about Church and State? :-)

Chuck said...

Z, I don't have a huge issue with the California case - as long as that is the limit of it.

Alcohol levels drop about .02 to .025 per hour, depending on how your body metabolizes it. Generally speaking, someone who drinks a lot (and therefore has a higher incidence of drunk driving) metabolizes closer to the .025 mark. So, waiting even an hour could make a person slip below the legal limit for drunk driving. If the police were to have to wait 3 - 4 hours a substantially drunk person could test out to be legally sober.

A drunk driver should not be rewarded for the sole achievement of being able to make it home before the police catch up with them. This isn't a safe base in a child's game.

I do see the case in Indiana as scary though.

Z said...

Chuck, thanks, that's my thought, too. I don't believe the California law is as shockingly new or different than what we've had here, but Indiana is QUITE something else.

FairWitness said...

So the police need the right to enter a home without a warrant to collect evidence of alcohol in a suspect's bloodstream? Chasing tipsy drivers is more important than the 4th Amendment? I think not. Seems like our Justice system spends way too much of our law enforcement resources tracking down low-level law breakers instead of violent criminals. I am not advocating driving under the influence. But for heavens sake, if they can't catch the offender before he gets away, safely into his home, then I think the police need to just let it go. Better luck next time. If police have the right to do this, who's to say they won't bust in on anyone, without a warrant, stating they thought he or she was driving drunk. I don't like this.

Indiana's new law disallowing self-defense for wrongful police raids? Let's just say I'd rather argue it out in court. I don't want police officers shot to death, or the innocent residents either. If police enter a home under faulty information, they're still acting lawfully because they don't know the information is errant until after the fact. You must submit to the police and present your case to a judge.

Pris said...

I would contend that the overwhelming number of cases of DUI's do not include the scenario in this particular case. I doubt there are many drunk drivers who make it home, before they are stopped by police, unless they were not spotted by them in the first place.

This is not enough to justify, IMO, entry into any home without a warrant. Let's just say that this man could have been
considered, "one that got away".

I don't believe this ruling wouldn't be used in court to expand to a similar argument of destruction of evidence that has nothing to do with a DUI.


"Hoosiers have no right to resist unlawful police entry into their homes."

This is an interesting ruling, because in itself, it admits "unlawful" entry by the police. I don't quite understand, given that, how the actions of the police could be upheld in court.

Domestic violence wasn't mentioned in the article, so does this mean, a couple now is in trouble for having an argument? It must have been a slow day for the police.

beamish said...

The police could not violate your rights against unreasonable search and seizures if there were no police.

Pris said...

Beamish, there has to be law and order. The police take orders from higher up, and if the higher ups look the other way, they have shirked their responsibilty.

Ultimately, it comes down to our courts and activist judges who interpret laws to their liking.

To me, this is anarchy from the top down, and once we're in this state of chaos, there is no rule of law.

Z said...

Pris, good point about 'how often does THAT happen?'...all your other comments are very thoughtful, too, thanks.

FW, It's kind of scary, isn't it? I thought about your point about "If the cops can't catch him.." too...you do have a good point.

Beamish...I can't tell you how many people I know who've been helped by policemen when nobody else would have come to their 'rescue' or whatever else they needed.

Bob said...

How can Americans allow this to happen? It is called electing liberal politicians who then appoint liberal judges. In some cases judges are elected, and they try to convince the public that they are non-partison as the law should be, but once sitting on the bench start making it up as the go along.

How do we stop it? The Tea Party gives us a good model. It is absolutely essential that we rid the judicial world of judges that bend the law to their particular warped world view.

beamish said...

Beamish, there has to be law and order. The police take orders from higher up, and if the higher ups look the other way, they have shirked their responsibilty.

You know me. I bid high with nukes and negotiate back. ;)

Z said...

Beamish :-)

Bob; how did Americans let ANYTHING that's going on happen?
Imagine going against the constitution this much? Imagine an America where law enforcement can go into someone's home like this?
You're right...we have to vote for smarter, more strict-constructionist, America-understanding people....starting from the TOP down.

Impertinent said...

Since the 18th Amendment was effectively repealed and replaced by the 21st Amendment ( first and last time this has happened )....I'd say any tipsy driver that makes it home unmolested or without incident....should have the protection of the 4th Amendment!

Just saying that most of us after one or two are legally loaded for more than an hour on our way home.

Impertinent said...

Also note worthy was that Indiana was one of the 36 states that voted for the repeal of the 18th Amendment.

Still today...8 states have never ratified the 21st. Mostly southern.

Dave Miller said...

Bob said...

"How can Americans allow this to happen? It is called electing liberal politicians who then appoint liberal judges. In some cases judges are elected, and they try to convince the public that they are non-partison as the law should be, but once sitting on the bench start making it up as the go along."

Bob, you are just factually wrong. The Warren Court, historically liberal, ruled that along with criminal rights [Miranda] people had an expectation of privacy in their own homes, cars, etc.

It was, and still is generally conservatives, as cited by Mustang that are standing this understanding of privacy and search and seizures without warrants or probable cause.

It was also conservatives who led the way in the most egregious theft of personal liberties we have seen in recent years, The Patriot Act.

Z said...

Dave, could you reword this for us? "It was, and still is generally conservatives, as cited by Mustang that are standing this understanding of privacy and search and seizures without warrants or probable cause."

thanks.

You know very well there is a lot of disagreement on the Patriot Act from both sides..your blanket statement is just plain wrong.

beamish said...

It was also conservatives who led the way in the most egregious theft of personal liberties we have seen in recent years, The Patriot Act.

Name one personal liberty stolen from you.

Dave Miller said...

Z, "It was, and still is generally conservatives, as cited by Mustang that are standing in support of this understanding of privacy and search and seizures without warrants or probable cause."

I hate typos...

Beamish, I have personally lost the right to privacy, as defined by the Warren Court, in regards to unreasonable search and seizure upon entering the country from abroad. Every time I reenter our country, I have to open my vehicle and allow it to be searched even though law enforcement has absolutely no probable cause or reasonable suspicion of any criminal activity on my part.

I have lost my right to personal privacy regarding the current use of full body scanners at our nations airports, again, with no reasonable suspicion of any criminal activity.

Both of these examples are what many of my legal friends term direct violations of the 4th amendment, and there is literally nothing we can do about it.

Always On Watch said...

Slippery slope!

If the police are allowed to enter unlawfully and on the grounds of "suspicion" (which can be merely in the mind of a policeman and based on a past offense instead of current evidence or the like), we'll be living in a police state.

Yes, the law does tie the hands of policemen -- and for good reason, too. Absolute power, which unlawful entry is, corrupts absolutely.

I'm willing to bet that an immigrant rights group would successfully fight against an unlawful entry. But let a policeman suspect with no basis that you have an unregistered weapon, and the police can come in?

A few years ago here in Northern Virginia, Mr. AOW and I reported a possible gun theft from our vehicle. The policemen actually said to me, "I should come into your home to see if you have any unregistered, loaded handguns."

My response: "Not without a warrant!"

The policeman left, but not before lecturing me as to the dangers of having a loaded gun. I responded to his lecture by saying "An unloaded handgun makes a poor club."

He couldn't obtain a warrant, of course, as it is not illegal in Virginia to have an unregistered and loaded handgun, particularly inside one's own home.

Brooke said...

Exactly.

I had a similar argument with a cop; I had my Pitt Bull in the pet store and an officer who patrols there on an 'off duty' basis for pay tried pulling me aside and excoriating me for my 'vicious dog.'

Of course, I looked into the provisions needed for owning a Pittie and am compliant, but he attempted to bully me with arrest, fines and the like for daring to walk my dog, who was well under control, well mannered, tagged and on a leash.

I told him he was full of it; that in my county Pitts are not illegal and I can walk my dog wherever it is legal to have any other breed.

He then proceeded to tell me that I needed a stand alone enclosure for my dog in my own yard, which is rubbish; the law in Ohio says that if you own a Pitt and intend to release it off leash, you must have a fenced yard with a lock at the gate... Pretty much standard for all breeds excepting the lock.

BUH-leave me, I looked at the statutes before adopting my dog from the pound.

He told me I was full of shit and then threatened to come to my house and fine me, ect.

I responded by asking him if he wouldn't mind calling his commanding officer right now so we could go over the laws together, and then we could go to my house to confirm the locked gate which was what the ACTUAL law stated I should have.

He very quickly excused himself from my presence.

Absolute power corrupts absolutely, and ignorance of the law is another club in big brother's hands.

Sam Huntington said...

//It was also conservatives who led the way in the most egregious theft of personal liberties we have seen in recent years, The Patriot Act.//

Overwhelmingly supported by Democrats, and overwhelmingly reauthorized by a Democratically controlled congress. Dave wishes to make this a Conservative/Leftist slug-fest. My point would be that as a conservative, I am a "Classical Liberal." Again, noting Dave's propensity to point fingers, don't you people think this is exactly what the politicians wanted in the first place? A divided America?

Sam Huntington said...

//"It was, and still is generally conservatives, as cited by Mustang that are standing in support of this understanding of privacy and search and seizures without warrants or probable cause."//

Given the make up of the SCOTUS, the above statement by Dave is simply wrong. If Ginsberg was the only dissenting member of the court, then all other leftist justices supported Kentucky against King. Moreover, no one argued that the police lacked probable cause; in fact, all agreed that the "cause" was a legitimate concern, and in their ruling, the 8-1 court said that the Louisville Police used "reasonable judgment" in entering the home to prevent destruction of evidence.

I'm not convinced this was the court's wisest decision, and I certainly do agree with Dave's other points about border and airport security. But I also think extraordinary times require extraordinary measures. My underlying tendancy is to agree with Franklin, who said that anyone willing to give up liberty for security, loses both.

If you can take a moment to complain here, why not take another moment to write a terse note to your House Representative?

Z said...

AOW: Well said..."An unloaded handgun makes a poor club."

Brooke; Good on YOU, girl! Yes, absolute power corrupts and, let's face it, we're seeing more and more arrogance from cops (even I have to start to admit that, though I've tried not to give Cop-hating Beamish too much ammo!!) and less and less help.
Sometimes, I"ll see a cop, man or woman, on the street and I'll say "Stay safe!" and they'll snarl at me, honestly. SOmetimes I think they're so used to hearing really awful things they don't realize what I said.

After Mr. Z died, I was driving and suddenly started to cry...a cop loud-speakered me and so I didn't know if I pull over to a stop or just let him go by, I didn't understand the words....so I drove to the right lane and he pulled to the left next to me and said "YOu drove too quickly by that school you just passed....and I'll just give you a warning" I stupidly said "My husband just died" because I looked like a LOON driving along suddenly SOBBING and you know what he says "Then PULL OVER AND STOP" (and cry... in other words)
I know they don't need to show empathy, but I thought THAT was pretty cold. How's about "I'm really sorry, ma'am, but you need to pull over if you're in distress"... @#($*&#(@&*$


Sam...A 'divided America" is sure working for the Left, isn't it. A divided and also otherwise weakened America.......
and Sam...we still have libs who blame the bad economy on Republicans and credit Clinton's admin with the good economy. NO context given to the fact that it's not the president who makes or breaks an economy and the fact that Republicans gave CLinton his and Democrats finally destroyed Bush's economy...NOR do they want to know how BUsh warned and warned about Freddie and Fannie. My lib troll Bd whined that I was lying on that count of BUsh, and the Feds and I linked 3 of the myriad articles on the fact that that WAS true and wrote "see you next month" Sure enough, Bd never commented again.
You teach, and they run like roaches out of their darkness..to what, I don't know....maybe under a rock?

beamish said...

David,

Neither of those are provisions of the Patriot Act, but rather policies enacted by Janet Napolitano at the Department of Homeland Security.

Bob said...

Dave sayeth: "Bob, you are just factually wrong."

Try to stay on topic, please, and use some of those facts of which you claim to have knowledge.

The Patriot Act has nothing to do with the Indiana court decision, which was a judicial decision. The Patriot Act was an act of legslation.

Since you are transfixed on the Patriot Act, I believe the Patriot Act was a good idea, although I don't llke it. I also don't like the government needing no evidence to seize your assets because they think you might be selling drugs. All you need is to carry $10,000 or more in cash, or to withdraw that much cash from your bank and you are automatically under suspicion. No court approval, no subpoena, no nothing to freeze your bank account.

That was going on long before the Patriot Act, and the act simply codified the same, existing, law enforcement tools that had been used in the war on drugs for decades.

Barack Obama seems to agree, as the Patriot Act has been extended. Obama has also discovered that the Guantanamo Detention Facility was a good idea, since he cannot seem to find another solution. It seems that G W Bush's TARP program was just the thing for Obama since he followed Bush to a Tee.

Someday,Obama will recognize G W Bush as one of the greatest Presidents in history.

He must respect Bush because in spite of the Bush bashing that went on in the campaign, Obama has given Bush the greatest flattery by following Bush policies, except for that brain-dead Obama Israel speech.

Dave Miller said...

Bob, yes, let's stay on target. You essentially stated that the rush to take away our personal liberties was a direct result of liberal politicians appointing liberal judges.

I stated that, as a matter of fact, it was the liberal Warren Court that affirmed and enshrined those protections that people are afraid of losing into law.

It has been conservative judges over the years, not libs who have led the judicial fight to curtail those rights.

The fight for the Patriot Act, while supported by the Dems, was proposed by the Bush admin. It was the Dems, who followed, they did not lead on this.

And Beamish, you obviously do not know of what you speak regarding our border crossings. All of the most recent changes are, again the result of Bush Admin policies.

How else can you explain that they went into effect soon after 9/11.

I will grant you that the body scans are from ms. Janet, but not much else of the onerous process of returning to the US.

Bob said...

Dave: Thanks for the correction. I agree.

It was the liberal Warren court that started your "rush to take away our personal liberties" by substituting their interpretation for the Fourth Amendment. Before the Warren Court, the courts took the Constitution at its word.

Thanks to the Warren court and succeeding decisions, the 4th Amendment is now pretty much toilet paper.

We have come a long way from " secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." to the idea that it is OK for cops to break in your door without a warrant.

Now, all that is cool, but the Indiana decision was made by the Indiana Supreme Court, the 5 members of which are initially appointed. They apparently do have to stand election, eventually, after they have been at the bench for a year or two.

It was the liberal Indiana Court that made this decision based on what they thought society needed. That's what liberals do. They make things up as they stumble along through life.

You don't have to be a chicken to know when you have a rotten egg, and you don't have to be an attorney or judge to know when a rotten decision is handed down.

The sooner we get can get rid of liberal legislators and governors, the sooner we can get rid of liberal judges who are intent on trouncing our personal freedoms.

beamish said...

Good on YOU, girl! Yes, absolute power corrupts and, let's face it, we're seeing more and more arrogance from cops (even I have to start to admit that, though I've tried not to give Cop-hating Beamish too much ammo!!) and less and less help.

I don't hate cops. I just see them as unnecessary budget items.

Here's all the ammo my argument needs.

Cops have no obligation whatsoever to protect or serve you. In fact, the only time police are required to defend you is when you're in their custody as a prisoner.

Z said...

Beamish, "protect and serve" is exactly what's on the LAPD squad cars and that's what they do.
When they stop a speeding car, they're protecting me, when they arrest burglars, they're protecting me, when they arrest thieves at a 7-11, they're protecting me, when I have an accident or a flat, they help get me out of traffic, when they see a baby in a hot car and get it out, they're protecting...

of course, they protect and serve...and they put their lives on the line every day; which is why I think so many cops are bitter these days; it's not helping people and arresting bad guys anymore, it's trying to help people too dumb to help themselves and helping illegals, and arresting bad guys only to be called on the carpet for having done one damned tiny thing incorrectly, or having the perp back on the street for some little legality when they KNOW the guy's guilty... I could go on and on.

Ya, they're rough these days and I don't blame them. They're risking their lives with a wife and four kids at home for people who don't respect them anymore (possibly deserved but definitely not always))..etc. But you and I've sung this song before.


Dave and Bob (put your blog address again, pls, Bob), your conversation is why I blog...thanks a lot. Good to hear two people arguing and airing opinions and remaining civil. I really appreciate it and learn a lot this way

Impertinent said...

"YOU drove too quickly by that school you just passed....and I'll just give you a warning"

Your retort was certainly understandable to all of us here who know of that terrible day Ms. Z.

But, in the cops suit...how was he to know that you were being truthful? These guys here so much bull each and every day...I wonder how they believe it's Wednesday when a perp says so...LOL

And many people use any excuse to get out of a jam with the cops.

It's just that way Z.

If he knew you like we do....he'd have escorted you home and given you some roses to ease your pain.

To me...cops are there to put a chalk line around you. They're not obligated to protect you. It's not their job. That would be proactive....cops are reactive.

Z said...

thanks, Imp...I never thought of that...I was crying so hard that it didn't occur to me he might have thought I made my husband dying UP! It wasn't that day, actually, it was quite a while afterwards but something hit me that really set me off.

When I say "protect", I don't mean their being proactive, but it IS protecting if they arrest someone...because that person might have been in a 7-11 I was in...or if they arrest a burglar into my house, it's certainly protecting.
You're right...they aren't paid to swath us in bubble wrap so nothing ever happens to us, but their actions SO protect. Our LAPD cars do have "to serve and protect" on the doors.

beamish said...

The sort of protection and service I'm speaking of is calling the police for help and the police not coming at all. Proactive? Police aren't even obligated to be reactive.

Droppewd 911 calls are notorious in large cities. You'll be lucky if a call to the police is responded to in a timely fashion, if at all. The one time I was mugged by two thugs in downtown St. Louis and called the cops they took four hours to respond, plenty of time for the thugs to hop in a car and be in Kansas City.

"Which way did they go?" they ask me. Please. "Look for someone with a black eye and a broken nose."

St. Louis is notorious for shredding police reports to make cases disappear so crime statistics aren't as embarrassing to whoever the state-sponsored car theives around here are trying to impress.

Nah. Here in St. Louis at least, crime would go down if there were no police department. Most of the criminals here wear badges.

FairWitness said...

Hi Z, "Then PULL OVER AND STOP" (and cry... in other words)....

I've been troubled by this post of yours for days. The cruel world you've faced so bravely as you endure indescribable grief. The police officer who was so harsh spends all of his time dealing with the dregs of society. He's been hardened, jaded and disgusted by what he's endured.

His advice to you should have been delivered to you in a kinder, gentler, respectful manner. Sounds like the LAPD needs to enroll their patrol car officers in charm school & sensitivity training. Not all citizens are unworthy scum.

I have been where you are, my friend. I so wish I could wrap my arms around you and comfort you. I wish I could ease your ongoing, never-ending heartache.

In time, a very long time, you will eventually be able to accept your loss and live with the pain. It's a process. One day you will realize you feel better, more at peace. Then you'll feel guilty for that. Some day your loss will find a place inside you where it will reside for the rest of your life.

Even after 14 1/2 years, there are still times when I feel that loss and sadness. And then I remember the life we shared and feel lucky to have been so happy in that life. I am grateful for the knowledge I acquired. The loss was not in vain. True love lives on in our hearts forever.

Please know I am praying for you and wish you well.

Z said...

FW, thanks very much. I know you've 'been there'....and yes, the cop's jaded and I'm the last to blame him; but it was shocking. I like to think HE thought about his reaction to me and will continue to do so AND he'll think before blurting out something so uncaring again. Here's hoping!