by Jack Minor –
Two Supreme Courts have issued rulings that civil libertarians say effectively nullify the 4th Amendment. One of those rulings overturns rights dating back to the Magna Carta.
Nat Hentoff expressed alarm over both an Indiana Supreme Court and a U.S. Supreme Court ruling on the 4th Amendment. In an article titled “4th Amendment hangs by a thread” Hentoff stated, “Our founders, whatever the differences among them, would be enraged” by the Indiana court decision;” and that the US Supreme Court “turned the 4th Amendment upside down” in a recent ruling some have said involved a “No- Knock” search.
In a 3-2 ruling, the Indiana Supreme Court ruled that there is no right for a private citizen to resist an illegal entry by a police officer. The court stated in its ruling “that there is no right to reasonably resist unlawful entry by police officers.”
The case involved Richard Barnes, who was charged with misdemeanor charges for resisting a police officer who had entered his home without a warrant. According to the ruling, the case began when Barnes got into an argument with his wife, Mary. During the argument Barnes threw a phone against a wall prompting his wife to call 911. She told the dispatcher that Barnes was throwing things but did not strike her. The call went out as “domestic violence in progress.”
Officer Lenny Reed arrived at the scene and met Barnes outside as he was leaving with luggage. Barnes told the officer he was leaving and raised his voice. Mary then came out, threw a bag at Barnes and told him to get the rest of his stuff.
Mary and Barnes returned to the apartment and Barnes blocked the officers from entering. Reed attempted to enter the apartment and was thrown against the wall by Barnes. Officers Jason Henry and Reed used a choke hold and taser to subdue Barnes.
After being found guilty of battery on a police officer, resisting law enforcement, and disorderly conduct Barnes appealed the ruling. His basis was that the jury had not been given instructions regarding the right of a citizen to reasonably resist entry into his home.
The Indiana Supreme Court stated, “This Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers.” In issuing the ruling the court said, “We conclude that public policy disfavors any such right.”
In the other 4th Amendment case, the US Supreme Court, in an 8-1 ruling, stated that officers did not act improperly when they entered a home without a warrant after smelling marijuana and hearing activity that indicated evidence was being destroyed.
The case Kentucky v. King has been described by some as a ‘No Knock’ warrant case. However, this is not backed up by the record of events. The incident began when police were attempting to arrest a drug dealer. The officers were in an apartment breezeway when they heard a door shut. At the end of the breezeway there were two apartments; one on the left and one on the right. The smell of marijuana was coming from the apartment on the left. Not knowing which apartment the dealer had entered, police knocked on the apartment on the left and identified themselves.
When the officers heard noises that they believed sounded like evidence being destroyed, they announced they were going to enter the apartment. Upon entering they found marijuana and powder cocaine in plain view. During a subsequent search, crack cocaine was also discovered. The officers eventually entered the apartment on the right and arrested the drug dealer they sought.
Justice Samuel Alito, writing for the majority, said that reasonably believing evidence was being destroyed amounted to an exigent circumstance. The decision stated that, rather than attempt to destroy evidence “if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time.”
Alito went on to say, “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent circumstances search that may ensue.”
Civil libertarians have decried both cases for their implications, however, the King case was narrowly applied while the Indiana case would have broad applications in every incident involving police entry into a home.
Eidsmoe said he believed the King decision was correct, saying this was not a “no-knock” search since the officers identified themselves and only entered when they heard the activity. He said the 4th Amendment is not stated as an absolute as compared to the 5th amendment.
“It states we are protected against unreasonable searches and seizures. The absolute in the amendment is that no warrant shall be issued ‘without probable cause’. That is the one absolute you cannot break, but it does not say you always have to have a warrant to search, or that you always have to have probable cause.”
Eidsmoe gave the example of police arresting a suspect, saying it would not be practical to tell the suspect, “Stay here while I go get a warrant so I can search you to make sure you don’t have a gun.”
Greeley Police chief, Jerry Garner, said the King case really did not break any new legal ground. “Various courts have long held that peace officers have not only a right but a duty to forcibly enter a premises without a warrant if they believe a crime is occurring in their presence.”
He continued, “I think the key in these kinds of cases is that officers use common sense in the kinds of crimes in which they make this sort of entry. In other words, it should be a fairly rare occurrence. As long as they do that, I don’t think we’ll lose the public’s support.”
The court admitted it was overturning over three hundred years of law going back to the Magna Carta as well as US Supreme Court decisions. The court dismissed these decisions simply saying “We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence.”
Col. John Eidsmoe, a law professor with the Foundation for Moral Law said while he understands the reasoning that resisting a police can often result in violence that can injure or kill the individual or officers; he is concerned with overturning hundreds of years of law tradition.
“A court doesn’t have the right to change the basic common law principles this nation was founded upon. If we want to do this by a constitutional amendment, that’s another matter.” He continued, “I do think the court overreached in this decision.”
Justice Robert Rucker in his dissent joined by Justice Brent Dickson said, “the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally – that is, without the necessity of a warrant, consent, or exigent circumstances. And that their sole remedy is to seek refuge in the civil arena.”
Eidsmoe agreed with Rucker’s dissent saying “a basic principle of constitutional law is that when a court deals with a constitutional issue they should deal with it as narrowly as possible.”
Another problem mentioned was that criminals could dress up as police officers to gain entry into homes. “
Criminals could realize that, not knowing for sure whether the intruders are police officers or not, but knowing they don’t have the right to resist an illegal intrusion, residents might be less likely to resist intruders as well, as they might be police.”