What 4th Amendment? Indiana Sheriff Says Random, Warrantless House To House Searches Are Okay
from the thanks-Indiana-supreme-court dept
We've been covering a large number of situations and legal rulings lately that appear to suggest that the 4th Amendment is pretty much null and void for much of the US. With the news of a bad Supreme Court ruling concerning the ability of police to invade a home without a warrant, so long as they create circumstances that make it seem urgent, we're pointed to an even more ridiculous ruling in the Indiana Supreme Court that effectively legalizes the ability of law enforcement to enter any home without a warrant. Why? The court basically says that it's "against public policy" to require a warrant:"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."In other words, the gradual (and, at times, not so gradual) destruction of the 4th Amendment is used to destroy it even more.
It appears that law enforcement in Indiana is wasting no time in recognizing the power this gives them. Radley Balko points us to the news that one Indiana Sheriff, Don Hartman Sr., from Newton County, has now stated that it's legal to conduct house-to-house warrantless searches (see update below). According to him, everyone should be fine with such an invasion of privacy, because it means they can catch criminals:
According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011. When asked three separate times due to the astounding callousness as it relates to trampling the inherent natural rights of Americans, he emphatically indicated that he would use random house to house checks, adding he felt people will welcome random searches if it means capturing a criminal.It's as if they don't care that they're making a total mockery of the 4th Amendment and its important history.
Update: The sheriff in question has put out a statement contradicting the original story:
On May 16, 2011, I was contacted by a reporter of an internet radio station. Her question concerned a recent Indiana Supreme Court decision, allowing police officers to make random warrantless searches. I advised her that I was not clear on that particular ruling; she then asked how the Sheriff’s Office conducted searches of residences. I informed her that searches were only conducted with a warrant, probable cause or when an officer is in hot pursuit. When questioned about the Supreme Court ruling, I advised her that as police officers, we enforce those laws set forth by our legislative branch. This reporter then asked about the violation of Constitutional Rights. This State Supreme Court ruling in my opinion cannot override our U.S. Constitutional Rights and I’m sure this state ruling will be revisited.At this point it's the reporter's word against the sheriff's. It does seem odd that the reporter does not directly quote the sheriff, but does state that he "emphatically" said he would use such house-to-house searches...
When I was asked about my thoughts on random searches and how people would react, I gave her the scenario of looking for a criminal or escapee. I advised her that if people were aware of this situation, they would gladly let you search a detached garage, outbuilding, etc., if it meant keeping them safe, but this would only be after securing permission.
This court ruling is just open for lawsuits if a police officer would attempt a random search without due cause. Somewhere in this conversation things were definitely taken out of context. I'm now quoted as saying the Sheriff's Office will be conducting random house to house searches.
I want the citizens of Newton County to rest assured that no member of the Newton County Sheriff’s Office will enter the property of another person without first having a warrant or probable cause to do so. I strongly stand behind my oath to uphold the Constitution of the United States of America, as well as that of the State of Indiana.
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Filed Under: 4th amendment, don hartman, home searches, indiana, privacy, warrants
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WWII Germany?
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Re: WWII Germany?
I'm absolutely sure the Tea Party/small government crowd will be rising up in abject horror at this shortly.
tap tap tap....Bueller? Bueller? Bueller?
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Re: Re: WWII Germany?
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Re: Re: WWII Germany?
The "small government crowd" encompasses many more people, including your average libertarian like me, and you can bet we're all over it. You did realize that Radley Balko (the guy Masnick hat-tipped in the post itself) writes for Reason magazine, right?
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Re: Re: WWII Germany?
I hope you enjoy what they can do to you, as anything and everything in your house will them be misinterpreted, so you will fit the elements of a crime, whether or not you actually committed one.
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Re: Re: Re: WWII Germany?
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Now, hang on a minute...
The Sheriff went further and said this ruling would likely be revisited and that he stands by his oath to uphold the Constitution.
How "Allison Bricker" came out of that interview with the Sheriff wanting to conduct warrantless, random, house-to-house searches without property-owners consent is a question I would like answered. It's crap reporters like Bricker that throw out some unfounded, inflammatory tripe that gullible rubes eagerly lap up and begin frothing at the mouth about.
The ruling is bad enough. Purposefully deceiving/misquoting a chief law enforcement officer is just making it worse.
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Re: Now, hang on a minute...
Um. Yes, we had already updated the post hours before you added this comment. Kinda weird.
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Re: Now, hang on a minute--- The Sheriff of a Small County
What it comes down to is that the blogger Allison Bricker telephoned the sheriff of the smallest and most backwoods county she could think of, in the hope that he would be out of his depth and make injudicious remarks. I cannot say whether he made injudicious remarks or not, but it hardly matters. Ms. Bricker was writing for a national audience, betting that people would not know about Newton County, and that they would assume that this sheriff was someone of real importance. People from around the world would not know that Indianapolis and Gary are not in Newton County.
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Re: WWII Germany?
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.....what?
I love this concept. We took a shit before, so now we're enacting a law to make sure you have the smell wafted directly into your noses. What else can we do?
This is getting ridiculous....
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Re: .....what?
This is getting worse than ridiculous - it's getting downright terrifying.
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Re: Re: .....what?
Congratulations America, you officially suck.
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Re: Re: Re: .....what?
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I'm just glad the government is here to protect us.. I dont know what I'd do with all that freedom stuff..
"Until they become conscious they will never rebel, and until after they they have rebelled they cannot become conscious."
- George Orwell, 1984, Book 1, Chapter 7
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Re: Re: Re: .....what?
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> branch, which is there for the express
> purpose of upholding the law of the land,
> of which the Constitution is the supreme
> authority. Goodbye, liberty. Welcome to
> the Western Empire of the Americas.
It's worth pointing out that this ridiculous ruling was from the Indiana Supreme Court, not the US Supreme Court. Which means it only applies in Indiana, and only for as long it takes to be overturned on appeal to the federal system.
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Re: Re: Re: Re: Re: .....what?
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> involve a federal law or the US Constitution.
Sure it does. Read the 4th Amendment: "secure in their houses, papers, effects..." Being told by the state that you have to allow police to force their way into your home means you are no longer secure in your home, papers, or effects.
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What's next?
/sarc
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Re: What's next?
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Re: Re: What's next?
ISTR there is one state in the US where a person naked in their own home can be prosecuted for indecent exposure if they can be seem from the street while a person in the street looking at a naked person in a private home can be prosecuted as a peeping tom.
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As one who resides in Indiana...
No offense to the reporting of Techdirt, but this "didn't care" attitude started with those who actually reside in the state.
I gave up years ago at trying to correct the issues the Indiana government has.
I truly believe it's corrupt and this recent Constitutional bill passing clearly shows this.
Remember, this is the same state which has a right to sell off its impounded goods based on trumped-up laws.
The ruling for the law isn't a surprise.
Neither will be the temporary infusion of rights defenders to sue the state... at our expense.
Damned if we..., no, we're just damned.
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Re: As one who resides in Indiana...
All tyranny needs to gain a foothold is for people of good conscience to remain silent.
IT'S TIME FOR ALL AMERICANS TO STAND AND SPEAK UP
MUST READ ARTICLES
The Infallible Prosecutor: Google it
10,000 innocent people convicted each year
Scalia's death row lunacy: Google it
Most registered sex offenders are innocent
www.wikipedia.org
Type censorship in the U.S. in the search box
IF YOU DON'T KNOW YOUR RIGHTS
YOU DON'T HAVE ANY
Jury nullification: A fundamental right!
Indiana Constitution: Article1: Section 19:
In all criminal cases whatever, the jury shall have the right to determine the law and the facts. The 9th and 10th amendments to the constitution of the United States means the same thing.
An unjust law is not a law at all and any person charged with violating an unjust law has not violated any law and should be found not guilty simply because the law is unjust!
WE MUST PROTECT OUR CONSTITUTIONS
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Minor Nitpick
Not technically accurate. Any fruits of an illegal search would still be (in a non-insane world like ours) inadmissible in court.
The decision "only" said that the serfs can't resist during the time period that their rights are being violated, and must submit for their own safety in the face of any expected police brutality that is sure to come. Later, when the threat of being beaten to death by a police officer is no longer present, they can spend their life savings on a lawyer to bring a complaint forward against the officers that will then be heard and decided on by the friends of said police officers.
But technically, officers still require a warrant if they want to use what they find in court. If they just want to keep any loot for themselves through civil forfeiture ("Can you prove that you didn't buy your wife these earrings with drug money? No? Great! Now I don't have to shop for an anniversary present!"), presumably that's okay.
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Re: Minor Nitpick
I doubt it. They'll unlawfully enter the premises based on the exigent circumstances created by knocking on the door.
Later, when the threat of being beaten to death by a police officer is no longer present, they can spend their life savings on a lawyer to bring a complaint forward against the officers that will then be heard and decided on by the friends of said police officers.
Some of your post includes a bit of excessive rhetoric...but this part is spot on. Your only hope would be to appeal the ruling and spend more of your life savings to get before a judge that is not friends with the officers.
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Re: Re: Minor Nitpick
Using exigent circumstances to enter is not unlawful, of course, even it it might be wrong.
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The outcry will likely be small
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Re: The outcry will likely be small
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*sigh* once they put it in action, and other states see it going through unchecked I fear the practice will spread.
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The only issue was whether the homeowner had a right to physically resist such illegal entry, not whether the entry was legal.
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Scary!
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I'm not saying that *should* be the only option for a homeowner, but this hysterical misinterpretation of the opinion doesn't help anyone.
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Where as the example is a bit of an extreme position down the slippery slope the base problem exists... when you give due process to those on the ground in the moment they tend to loose sight of the bigger picture. The framers were very explicit in the 4th amendment to prevent you from loosing your liberty.... didn't you ever see Judge Dredd movie?
Now replace the word 'Door' with 'Locked safe' or 'Car' or 'hard drive' or 'sphincter'
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This case isn't about whether you open your door or not, and it's not about whether the search was legal or illegal.
This case is only about whether your are allowed to assault an officer to prevent him from making an illegal entry.
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You can ask nice but cops are trained to be assertive and take the steps they perceive as being needed by the circumstances and available to them.
Push can easily comes to shove... when one group is being assertive and the other feeling defensive and backed into a corner.
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I mean, that's probably the best course of action even if you have a legal right to physically resist, since you would be risking your life and the lives of your family members if you start a physical confrontation with an armed police officer.
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Scary!
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Also, quoting Thomas Jefferson can get you classified as a terrorist...
Anybody know of a nice English speaking country which is friendly towards American emigrants/immigrants?
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Also, this is about what form such resistance takes. This opinion doesn't restrict the right to engaged in non-physical resistance or make the cops' entry legal.
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As a current Hoosier (well, boilermaker, but still...)
Fortunately, as far as police go, the Sheriff you quoted is on the low end of the spectrum as far as average intelligence goes. At least in the parts of the state that I've been in (which, admittedly, do not go much further south than Indianapolis), the cops have been generally well-mannered and intelligent.
Please excuse me now while I try to find a decent place to move to after graduation. I hear Antarctica is relatively nice, if you can live with cold...
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Good screaming christ...
I guess he'll think so until his officers are killed doing this.
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Land of the free??? Not so much.
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Indian?
Is Don Hartman a Native American? or from India? I believe Hoosier is the correct term for someone from Indiana.
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Re: Indian?
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Re: Indian?
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Typo
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3rd amendment next?
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Re: 3rd amendment next?
"These men risked their lives for freedom; are you really going to deny them room and board for a couple months while they get back on their feet?"
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Re: Re: 3rd amendment next?
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Once again a parinoid schitzophrenic police officer can go anywhere and shoot anything legally. Only other person that can go anywhere like that is someone on fire.
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Hmmmmm that will be fun to see
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Response to: RadialSkid on May 19th, 2011 @ 10:05am
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Wonder if this qualifies us for asylum in a European nation
Only problem is I doubt the Europeans would let us get away with the claim. I hate our government more and more every day it seems.
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dangerous
and that's coming from a republican
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Re: dangerous
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Re: Re: dangerous
Fixed that for you. We have only one party; the big government party. While the "Team Red" vs "Team Blue" myth persists, the leaders who keep that myth of political choice going are laughing their asses off.
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I generally would prefer to stump for principles rather than a specific candidate, but this time I will make an exception. There is actually a guy in the race that will make a difference. I won't tell you to vote for Ron Paul. I will tell you to listen to him, read him (in context!), and consider what he has to say. At that point, I won't have to tell you who to vote for. The choice will be obvious.
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A modest proposal?
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I love it!
Gestapo first... next... death camps!
Welcome to the United Nazi States of America
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Suspicious story
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Re: Suspicious story
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Re: Suspicious story
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Re: Suspicious story
As it relates to the legal ramifications of this Indiana Supreme Court ruling, my analysis was validated by several law enforcement sources and a Constitutional attorney. Supreme Court Justice David in writing the MAJORITY opinion did so in a manner that went outside the matters presented in BARNES v. STATE of INDIANA.
When he wrote "MODERN" legalese for (post-PATRIOT-Act) jurisprudence that Hoosiers may not resist UNLAWFUL entry, with the stroke of a pen he decreed the ability for law enforcement to conduct random house to house searches.
In order to appreciate the full gravity of the ruling, we must understand exactly what UNLAWFUL ENTRY means in the legal sense.Telephone any police chief and ask what does UNLAWFUL ENTRY MEAN; you will get an answer that states an UNLAWFUL ENTRY is any search of PRIVATE PROPERTY without PROBABLE CAUSE or WARRANT.
Therefore if neither PROBABLE CAUSE nor a WARRANT must be issued, it is left to the arbitrary whims of the department or officer on the scene.
Further as it relates to the inferences that this story is phony, all I can offer is that I have been publishing for 3 years, in that time never once have any of my articles ever received a LIBEL DEMAND RETRACTION LETTER from the facts presented therein.
Furthermore, Mike Church who retained my services as a Contributing Editor & Publisher, would not risk Libel litigation (nor his contract with Sirius/XM) by allowing libelous news reports to be published anywhere on his site which directly tied to the Sirius/XM show. (The article was originally drafted for MikeChurch.com where it also currently resides.)
Thus, you have my word as the author that the following is all true:
a.) I telephoned the Newton County Sheriff's Department on May 16th, 2011 and asked his secretary to speak with Sheriff Hartman since he as Sheriff is the highest-constitutionally-elected law enforcement officer in the state.
b.) Sheriff Hartman was asked if UNLAWFUL entry by law enforcement means entry without PROBABLE CAUSE or WARRANT. He indicated that is the definition of UNLAWFUL ENTRY.
c.) I then asked the Sheriff if he was familiar with the BARNES v. STATE of INDIANA ruling by the Indiana Supreme Court, to which he replied "yes."
c.) When asked what would then stop police from conducting random searches, he indicated to me that he would "follow the law as decided by the Indiana Supreme Court."
d.) I then asked again if this meant he felt he could conduct random searches without Probable Cause or warrant to which he replied, "if the Supreme Court has said Hoosiers cannot resist, I follow the law. If that means we can conduct random searches then we will if needed"
e.) Sheriff Hartman was then asked about whether he felt his oath to the Indiana State Constitution Section 11. was superior to the Indiana Supreme Court ruling to which he responded in a annoyed fashion, "Ma'am, I have already told you twice, if the supreme court says Hoosier cannot resist, then that is the law."
f.) I then asked if he saw any benefit to conducting Random Searches, to which he replied, "the people would be happy to have random searches if it means the capture of a criminal."
I thanked him for his time we hung up the telephone and utterly astounded at what he told me, immediately began to draft the article.
Allison Bricker
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OMG!
It's kind of sad to see that my home country now seems to be better and much more free place to live than the USA - not because my country got so much better but because your country got so much worse. What is going on, guys? How come that now the land of freedom does not seem so much different than China when it comes to respect to human rights? When are you going to do something about it?
I tell you... I remember one revolution and it felt really good;-)
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Re: OMG!
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Re: OMG!
If you're not living in your Home Country, and doing something about what the politicians are up to, do not question any further.
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Re: Re: OMG!
1. I've been to the US, I've spent important part of my life there, I've met many friends there and I love that country. That's why I am sad.
2. The US still has the great power and can exercise its influence all over the world. There are many of us, who are not American citizens and have no influence over your politicians... but whatever you let them do will have impact on us. That's what makes me worried.
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Well, then...
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Re: Well, then...
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If you ignore my 4th Ammendment rights there's a good chance you'll meet my 2nd Ammendment rights.
Regards,
AC
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Local coverage
http://www.wxnt.com/pages/1622896.php?itmBlogDomainUrl=http://abdul-wxnt.itmblog.com/2011/05 /18/4th-amendment-follies/
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Re: Local coverage
"The Court held the safety of the police trumps the individual’s right to privacy."
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4th amendment - Enforced by Smith & Wesson
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This Indiana ruling is also broad and stupid, and SCOTUS should overturn it.
The idea that you can't protect your property from trespassers as long as the trespassers are cops is wrong.
I do agree that "common law" shouldn't be able to override written policy, but saying that's what happened here is plain wrong.
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Is it still legal to kill trespassers in some states?
Don't injure them and let them get away (or they will sue, and they will win), and make sure they are completely in the window before you shoot, so they don't fall out of the house (their relatives will sue, and probably win)....
What is this country coming to? Back in the USSR.... Would probably be better than here (if there still was a USSR).
Oh well, off to make another tinfoil beanie...
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I wish I was
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Update the Story, TechDirt!
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Re: Update the Story, TechDirt!
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Re: Update the Story, TechDirt!
"I informed her that
searches were only conducted with a warrant, probable cause or when an officer is in hot
pursuit."
"This State Supreme Court ruling in my
opinion cannot override our U.S. Constitutional Rights and I’m sure this state ruling will
be revisited. "
"Somewhere in this conversation things were definitely taken out of context.
I'm now quoted as saying the Sheriff's Office will be conducting random house to house searches."
"I want the citizens of Newton County to rest assured that no member of the Newton County
Sheriff’s Office will enter the property of another person without first having a warrant or
probable cause to do so. I strongly stand behind my oath to uphold the Constitution of the
United States of America, as well as that of the State of Indiana."
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Re: Update the Story, TechDirt!
Updated...
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Only the people of Indiana would elect someone named Becky.
So Governor Becky, what is your.....no I cant go on its just making me laugh to hard...
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These people are raping Indians!
Or is it Indians raping homeowners?
either way its a bad thing.
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Post updated
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Re: Post updated
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worrying
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I disagree. There are things worse than violence, and being told to stand by like a coward while your rights are ignored is one of them.
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Good Christian citizens do as they're told.
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Re: Good Christian citizens do as they're told.
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Re: Good Christian citizens do as they're told.
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Re:
I love how you think that because you *say* something is so, but refuse to back it up, that it must be so.
Needless to say, you are incorrect. But since you won't explain your position, I won't explain why you're wrong.
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Re: Re:
Again, for emphasis, this is not a 4th Amendment case, though at first glance it may appear to be so. However, upon analysis it quickly becomes apparent that this case is about a matter of Indiana common law, and not the 4th Amendment, as applied to the states via the 14th Amendment.
It is the "holding" of a case that defines the true import of a court decision, and not "dicta" that may appear in the decision that is not germane to the "holding".
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Re: Re:
Very well. Read the case. You already have the cite needed to do so.
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Re: Re:
Your description of this case is inaccurate on many levels, one of which I pointed out above, and this happens to be another one.
The majority's opinion is about the common law right to physically resist an illegal search/entry into your home by a police officer.
It doesn't change one bit what is or is not an illegal entry/search under the 4th Amendment to the U.S. Constitution.
One of the dissenting opinions claims that the case *was* about whether the entry was illegal in the first place, in language that does not make any sense to me, but since the majority's opinion (i.e., the law) makes no statements about whether the entry was or was not illegal (and seems to presume that it was for purposes of the argument), the opinion doesn't change anything w/r/t what is or is not illegal under the 4th Amendment.
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It is a matter governed entirely by substantive law in the State of Indiana, no more and no less.
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First, whether you are right or wrong, fighting the police is almost always not a wise idea given what they have as hardware and you do not. Throw hot tempers on both sides into the mix and the situation rapidly turns volatile, perhaps even deadly.
Second, the common law arose at a time when citizens did not have any effective recourse for unlawful action by the police. That has changed markedly, though it is still an uphill struggle in many cases to ultimately prevail.
I am not a criminal lawyer, so I found it of interest when the majority referred to the Model Penal Code that it stated has been adopted in the vast majority of states and which does not include the right at common law.
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Any way, as I stated further up in the comments, I agree it's not a good idea to get into a physical confrontation with an armed police officer, regardless of whether you have a legal right to do so.
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Mine was just a couple of observations taken from the majority opinion that I thought were interesting, and particularly the part concerning the Model Penal Code.
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Way to Sensationalize
No, it doesn't. Not even close. What the court said is that you don't have the right to assault or otherwise physically prevent an officer from entering your home illegally. That doesn't mean the 4th no longer applies.
Any evidence found from such an entry would still be inadmissible in court, they still wouldn't be protected from a lawsuit, you can still file a complaint, and they can still be punished or fired.
[A] right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, [The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942)] (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W. 2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies).
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My freedom is too big
Imagine your freedom was a huuuuuge apple orchard. BIG FREEDOM! 500 acres of freedom. Sounds pretty good, right? But now think about protecting all that freedom - How would you even do that? You could spend all day patrolling your freedom, and it would still be easy for anyone to come in and start ruining it. Or just burn it down!!!
You could build a wall around it, and install cameras and hire guards. That would take a lot of money. A lot.
NOW, imagine your freedom is REALLY tiny. Like an apple seed! How easy would it be to keep that safe? SUPER EASY! Put it in your pocket, a safe deposit box or a locket! So simple, doesn't cost you a dime if you are clever.
We should be grateful that we are saving a tremendous amount of time and money normally spent protecting our freedom now!
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sports
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However, violation of the 4th Amendment was not the issue presented to the Indiana Supreme Court. The issue was whether or not, even if police made a completely illegal entry, did Indiana state law countenance a person in the residence getting into a "fight" with the police?
This is why I have stated that this case is not about the 4th Amendment. It is, no more and no less, what actions may a person within a residence engage in in dealing with police once they have entered a residence, even illegally?
Will there later be a price to be paid by the police at a later date for having illegally gained entrance? Yes, the 4th Amendment demands no less. Hence, the 4th Amendment remains unchanged.
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So if someone is sleeping with a cop's wife and cop barges into this guy's house to assault him, he's not allowed to defend himself?
Will there later be a price to be paid by the police at a later date for having illegally gained entrance? Yes, the 4th Amendment demands no less. Hence, the 4th Amendment remains unchanged.
Yes, I'm sure it will be a really high price, like a one-week suspension! That'll teach 'em!
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these two links help wrap it up! we believe there are Deputies who would arrest the “alleged Sheriff” only that jeff drinski the prosecuting attorney and the judge are in COLLUSION with Hartman! OTHERWISE why would'nt they just DO THEIR JOB! http://countycrusaders.angelfire.com/emergencyletter http://countycrusaders.angelfire.com/forcedentry
this “alleged Sheriff” has a long History...along with the local legal staff.....bilking and pilfering money from VICTIMS OF CRIMES! read about it http://countycrusaders.wordpress.com/
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4th Amendment
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warrantless serch
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