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Saturday, Oct. 25, 2014

Is Your Home Your Castle?

Posted Sunday, May 15, 2011, at 6:05 PM

 

 

Wow! Miss a week and you miss a lot! While on vacation, apparently the Indiana Supreme Court issued two important rulings on search and seizure. One ruling appears to state that if a law enforcement officer illegally enters your home, the homeowner has no right to resist. The other ruling appears to state that officers no longer need to announce their presence before entering a home. In the first instance, the rationale of the Court is to prevent violence. The other ruling suggests that the State has the right to surprise suspects.

Since the time of the Magna Charta in 1215, every land owner has had the right to treat his home as his castle. The State only has the right to enter upon your property after the issuance of a warrant, or under certain exigent circumstances, and then with limitations. At first blush, these rulings appear to overturn 800 years of understanding about what it means to be a free-born person.

Unfortunately, I believe that these rulings may have the unintended consequence of causing more officers to be injured or killed. Here's why:

Criminal enterprise is an extremely competitive activity. Competitive to a Darwinian level. As criminals do every thing you can imagine, and some things you can't imagine, to avoid discovery and capture, law enforcement must adapt to continue to effectively enforce the law. These rulings may offer new perceived advantages which may instead lead to tragedy.

Criminals, particularly meth dealers and manufacturers, have a tremendous incentive to hide or destroy their evidence, and may resort to violence to avoid capture. As a result, it is common for law enforcement to adopt a strategy of overwhelming force when making a raid. The rationale is to neutralize the situation before anyone gets hurt. This strategy is often implemented when the suspect is most likely to be disoriented and least likely to physically resist. That means somewhere around 2 a.m.

Imagine you are a law abiding homeowner. You are concerned about drug activity in your area, so you have armed yourself with a firearm. In the middle of the night, you awaken to a door being crashed open, running footsteps and yelling, you are disoriented and physically weak because you were a sleep. Do you grab your gun and start shooting or do you wait to figure out what is going on?

My first instinct is to protect my wife and myself. Normal people don't crash into your home at 2 in the morning while you are sleeping. Something must be desperately wrong and lives are in danger. Because the officers failed to knock and announce in the above example, giving me an opportunity to realize what is going on, my instinct is to shoot first and ask questions later.

No one is perfect. Despite their best efforts and superior training, with no other desire than to protect the innocent and subdue evil, occasionally law enforcement makes mistakes.

Because in the situation outlined above, the police are not a gang of thugs, because they wear armor and are skilled shots, the likely outcome would be one or more officers injured and my wife and I killed. The situation turns into a tragedy for my family, the injured officers, the officers that were forced to kill another human being, and the tax payers who must pay to defend a lawsuit filed by the surviving family.

These rulings do not require law enforcement agencies to stop knocking and announcing. They are not intended to give officers greater confidence that they can enter your home without repercussion. Nevertheless, criminal enterprise is competitive at a Darwinian level. The public demands that officers do everything in their power to protect them from evildoers and officers correctly feel a responsibility to do just that.

 


Comments
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Wouldn't the evidence have to be overwhelming in these cases in order to allow the police/sheriffs to enter your home unannounced to protect the dept.'s from lawsuits and damages? Just curious. Thanks Charles, and great blog!

-- Posted by karenmeister on Mon, May 16, 2011, at 8:48 AM

Karen,

These rulings do not change the requirements for the issuance of a warrant or the warrant exceptions. A warrant should be issued upon showing probable cause supported by oath or affirmation upon review of a judicial authority.

One ruling apparently states that officers no longer need to announce their presence before entering. The other ruling states that when an officer enters your home ILLEGALLY, the home owner has no right to resist the officer.

One of the cases is Barnes v. State 82S05-1007-CR-00343. These cases have been picked up by the American Bar Association Journal and the Chicago Tribune.

-- Posted by Charles Hear on Mon, May 16, 2011, at 5:31 PM


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