Tuesday, May 24, 2011

Our Own Worst Enemy

Looking at a post by Lexington concerning the decline of Fourth Amendment protections in this country as a result of the war on terror, war on drugs or war on (insert cause name here) this leaps out:

Part of the damage is done by the habit of police everywhere to cut corners and stretch their prerogatives. But the Supreme Court has played a part, too. To take just one of Mr Shipler’s examples, the police must still usually show “probable cause” if they want a warrant to search a house. But for street encounters in which there is even the slightest possibility of danger to life, the court has over time substituted the woollier “reasonable grounds” or “reasonable suspicion”, thereby giving officers on the beat a latitude they are delighted to exploit. Most street pat-downs are never recorded, scrutinised by a prosecutor, challenged by a lawyer or adjudicated by a judge. Yet, says Mr Shipler, they weaken the fourth amendment and poison life on the street in a thousand poor neighbourhoods in America.

Emphasis mine.

What's terrible is that in just a week or so since this was published, the idea that police must show probable cause to enter your home has become sadly quaint.

Consider this ruling from the Indiana Supreme Court that citizens have no right to resist police officers that are entering their homes illegally:

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"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."
David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

It's quite fair to say, as the article does, that this is a reversal of common law dating back to the Magna Carta.

Unfortunately, this isn't limited to the states. In an 8-1 decision, the Supreme Court recently ruled that police can kick in your door if they hear sounds suggesting you might be destroying evidence:

It began when police in Lexington, Ky., were following a suspect who allegedly had sold crack cocaine to an informer and then walked into an apartment building. They did not see which apartment he entered, but when they smelled marijuana smoke come from one of the apartments, they wrongly assumed he had gone into that one. They pounded on the door and called "Police. Police. Police," and heard the sounds of people moving.

At this, the officers announced they were coming in, and they broke down the door. They found Hollis King smoking marijuana, and put him under arrest. They also found powder cocaine. King was convicted of drug trafficking and sentenced to 11 years in prison.

Anyone else think that police are going to start smelling pot an awful lot more frequently? 

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