(Untitled)

[gunslnger]

To partially answer the question of why some people want smaller government, here are two examples.

Indiana Supreme Court: citizens have no right to resist unlawful police entry

Short version: A police officer is within his rights to enter a home for any reason or no reason at all, while a homeowner is powerless to block or interfere in any with

Comments

[a_new_machine]

First, this is contrary to the 4th Amendment on its face

Would you mind explaining that? Where does the Fourth Amendment vest in the home-owner the power of enforcing its provisions against the police?

[a_new_machine]

Quoting the amendment doesn't answer the question. The right to security against unreasonable searches exists, yes. This does not mean that citizens get to enforce it. The right to freedom from racial discrimination exists as well, but that's enforced only by Congressional action under Section Five of the Fourteenth Amendment. The Fourth Amendment does not explicitly vest enforcement powers. It does not, to use the libertarian phrase, grant a positive right to the use of force to defend against unreasonable intrusion. It simply commands government not to do it. So I ask again: facially, how does the Indiana court's ruling violate the Constitution

[a_new_machine]

As a broader response: The Fourth Amendment forbids "unreasonable search and seizure." The real question is, "What is unreasonable?" Is smelling pot and (correctly) believing that they were destroying evidence of a crime (possession of a controlled substance) an unreasonable basis to enter a home? It is worth noting that there are two separate elements to the Fourth Amendment: the "unreasonable" clause, and the "warrant" clause. Nowhere are the two conflated. It is possible to have a reasonable search absent a warrant, by the very terms of the amendment

[blue_mangos]

This does make a nice little companion piece to my post doesn't it?

[a_new_machine]

It definitely does. I realize I'm kinda driving it (and the law student in me demands that I respond to erroneous legal arguments on teh interwebz), but I think that this underlying point deserves more discussion than whether the actual searches he's targeting were reasonable or not.

[gunslnger]

Is smelling pot and (correctly) believing that they were destroying evidence of a crime (possession of a controlled substance) an unreasonable basis to enter a home?

Yes.

[mrsilence]

On the "smelling marijuana" case, doesn't that in itself constitute probable cause?

[mrsilence]

Actually, what I mean is, doesn't it come under the "plain view" doctrine?

That doctrine as I understand includes in the definition of "view" touch, smell and hearing, so that an officer smelling marijuana has authority to seize it as evidence of the crime and as contraband without a warrant.

[a_new_machine]

Plain view is complicated. There is a "plain smell," "plain touch," and "plain hearing" corollary, yes. In general, plain view does not authorize any more intrusion than exists at the time the sensation occurs. So if they're in your home, and they smell marijuana, they can seize any they find, even if they're on an unrelated warrant. However, they'd have no justification solely from the plain view doctrine to raid your home to search for marijuana. There's a case where a detective executing a drug warrant saw a radio on the desk. He moved it to determine the serial number, as the label was facing the wall. His subsequent seizure of the stolen radio was excluded because he created a new privacy invasion to verify his initial sensation when he moved the radio.

As for whether it constitutes probable cause, it may. But probable cause is an element of a warranted search, and does not, on its own, render every search reasonable.

[mrsilence]

Yeah thats right, the radio was a separate issue. They had no evidence that the radio was stolen before they entered the premise, so they have no right to enter and check if it is stolen.

But in the case of them smelling marijuana being used, doesn't that constitute reasonable evidence that a crime is occurring and for them to enter? Then they can surely seize any marijuana they see after entering the premises.

[existentme]

As Spooner warned, and as the Indiana decision illustrated, the judiciary exists to enforce "public policy," and its dedication to this function is only going to increase. It's as natural as any science is for power to accrue more power to itself. I expect no contraction of this tendency without outside interference. 8 to 1, oh Ginsberg, you old-fashioned fuddy duddy, you. Soonly enough I expect you'll be on your way and the CiC can get a real justice all up in there.

Here's a good one from the SC decision:"Justice Samuel Alito noted that when occupants respond to a police knock on the door, they are not required to grant police permission to enter their homes. But, he said, if there is no response, and police hear movement inside that suggests destruction of evidence, they are justified in breaking in."(Emphasis added)
So, I guess what Sam is saying (fine, an extrapolation, w/e), there, is that while you don't have to grant them permission to enter your home, you definitely must answer your door when they knock. Because lets's face

[a_new_machine]

Qualified immunity would easily be defeated in the type of circumstance you're describing with any reasonable jury and a half-decent attorney. Most of it wouldn't even have a qualified immunity problem because it'd be an exercise of the exclusionary rule, and QI only applies to damages against state officers.

[existentme]

I'm not sure what sort of scenario you imagine for the easy disqualification of immunity. I'm sure I'm the one further in the dark here than you - thing was, I was not talking about any evidence they gather - I don't care about that: I want to be left alone unless they have a warrant.

So what I am describing is the state deciding it wants to come into my house without a warrant when I don't want them to come into my house without a warrant. I don't care that anything they find once they come in may or may not ever be used against me - that's entirely beside the point, my point, anyway.

So what I was saying is, if the state officers decide they want to come in, and there are only state officers to be witness to the "strange flushing sound," e.g., there isn't anything I can have to say about such a thing, right?

"We thought so, any reasonable person would think so, we acted in good faith...nice crib, dude. Cya."

[a_new_machine]

Qualified immunity exists only where you're trying to sue them for damages. So, in that case, you're actually personally punishing them for entering your home. Generally it's applicable under 42 U.S.C. s. 1983, where you sue them for violating a civil right - so what they do with the evidence gathered isn't implicated here. The exclusionary rule applies to what they can do with that evidence, and in that realm, qualified immunity doesn't matter. It only applies when suing a state officer for damages alleged during the course of their duty as a state officer

[underlankers]

Isn't there a disjuncture here between what you're saying, which is that government is always evil, and the concept that authority is to be respected, but not trusted in any and all things? Nobody says that all use of authority is good, everyone recognizes that some uses of it are universally seen as bad. The problem happens when some despotism is concerned freedom by one faction, both by another faction, but each alike accepts one form and neither sees the disjuncture between what both say they want as opposed to what both actually bring about.

[gunslnger]

which is that government is always evil

Are you replying to the wrong post? I don't see that I've said that here anywhere.

the concept that authority is to be respected, but not trusted in any and all things?

Nor did I say this.