NJ Town Proposes Law That Would Grant Law Enforcement The Right To Warrantlessly Search Houses To Find Underage Drinkers

from the trading-in-your-Fourth-Amendment-for-nanny-state-baubles dept

A New Jersey town is looking to give its police officers yet another way to bypass warrant requirements for searches of homes: underage drinking. Members of the public aren't happy with it, and the city council doesn't want to talk about it, even though the latter have stated they're "on board" with it.

Not surprisingly, the proposal has provoked considerable controversy, to the point that neither the mayor, the police chief, nor members of the Montville Township Committee, the community's governing body, would talk to a local reporter about it. Presumably supporters of the ordinance are relying on the "exigent circumstances" exception to the usual Fourth Amendment requirement of a warrant to search someone's home without consent. According to a gloss by the U.S. Court of Appeals for the 9th Circuit, "exigent circumstances are present when a reasonable person [would] believe that entry...was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts."

You won't find the questionable language in the posted version of the ordinance [pdf]. You can only hear it being discussed in a recording of the city council meeting [mp3 -- relevant part embedded below]. While the proposal does attempt to lessen the impact underage drinking charges will have on a teen's future by providing for lighter punishments and more prosecutorial discretion, it undoes that limited good by giving police an easily-abused warrant exception.

While the council seems short on specifics, it runs long on support. The council notes that both the police chief and the prosecutor are on board with the proposal, which should come as no surprise to anyone.

The concerns raised are legitimate. What are the limits on a warrantless search predicated on presumed underage drinking? The council doesn't have an answer ready but notes that both the chief and the prosecutor have offered to discuss it at a future council meeting.

Every concern is brushed off by vagaries vaginas vague, baseless assertions [thx, Doctor Duck!]. They state that there are "no legal concerns" and that other localities (although none are named) have passed similar statutes without receiving any notable legal "challenges." The closest they come to an acknowledgement of the unintended consequence of broadening law enforcement's warrantless powers is one councilperson saying, "I can see how this might look like another opportunity to kick down doors, but it really isn't." OK, then. If you say so.

All council members except one note their support for the ordinance. The single dissenting voice notes that the law is prone to abuse and offers nothing in the way of deterrence. ("Heroin laws don't prevent the use of heroin...")

In support, the town says the police can be trusted with the proposed "flexibility." The police chief and prosecutor are willing to talk the public into it, if they're up for being talked down to by those who will see their power increased. The committee (for the most part) seem to be convinced granting more warrantless access has only a very limited downside, but will be a solid deterrent. For those on the receiving end of this -- the public -- it seems like more abuse waiting to happen.

Filed Under: 4th amendment, home searches, montville township, new jersey, searches, underage drinking

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.

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.

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...

Filed Under: 4th amendment, don hartman, home searches, indiana, privacy, warrants

4th Amendment? What 4th Amendment? Supremes Say Police Can Create Conditions To Enter Home Without A Warrant

from the did-they-really-say-that? dept

We've been discussing various ways that our government and the courts have been slowly chipping away at the 4th Amendment, what with warrantless wiretaps, searching laptops, TSA agents groping people, etc. And the Supreme Court just took a huge chunk out of the 4th Amendment in saying that police can raid homes without a warrant if there are "exigent circumstances" -- even if those "exigent circumstances" are created by the police themselves.

The law, to date, had been that police cannot enter a home without a warrant unless they had both (a) probable cause and (b) "exigent circumstances" in which getting a warrant would not make sense. In this case, police were searching for a drug dealer who had gone into an apartment complex. Outside of one apartment, they smelled marijuana -- which created probable cause. At this point, they should have obtained a warrant. Instead, they banged on the door and shouted police. At which point they heard a scramble inside, and busted in the door, claiming that they believed the scramble was the possible destruction of the drugs. The argument then was that this noise -- even though it was entirely created due to police action -- represented exigent circumstances that allowed them to bust in the door without a warrant. The Kentucky Supreme Court said that while the noise might be exigent circumstances, since it was illegally created by the police, it could not be used.

Tragically, the Supreme Court -- by an 8-to-1 vote -- has now disagreed, saying that this is perfectly consistent with the 4th Amendment. With all due respect to the 8 Justices and the Court, I can't see how that's reasonable at all. This sets up a dreadful situation which will be abused regularly by law enforcement. It lets them create yet another situation where they may avoid oversight, by creating their own exigent circumstances, and then using that as an excuse for avoiding a warrant and any required oversight or limitations. I believe that Justice Ginsburg's dissent is much more compelling. Her dissent points out that exigent circumstances are only supposed to be used in very rare circumstances when getting a warrant is not possible or practical. Yet, in this case, the police easily could have secured a warrant quickly upon smelling marijuana.

That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, "[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police." ... Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

In fact, she notes that "Home intrusions, the Court has said, are indeed 'the chief evil against which . . .the Fourth Amendment is directed.'" So it seems positively ridiculous to claim that such a home invasion is acceptable under the 4th Amendment. This is a tragically bad ruling by the Supreme Court that will have massive and dangerous consequences. We already have law enforcement pushing the boundaries of individual privacy rights, and now they have even more tools to take that further.

Filed Under: 4th amendment, home searches, police, supreme court, warrants