Burden Shifting Is the Mark of Tyranny.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. – Fourth Amendment, U.S. Constitution

A man’s home is his castle. – Unknown

For centuries, our jurisprudence has held dear the idea that government cannot enter your home without a warrant, or more recently, has allowed warrantless entry in the presence of exigent circumstances.   However, this week, the Indiana Supreme Court has issued a sweeping ruling deciding that there is no right to resist unlawful entry by law enforcement into your home.

The money quote from the ruling:

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. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (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). 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—as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (―But in arrest situations that are often ripe for rapid escalation, one‘s ‗measured‘ response may fast become excessive.‖). Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ―hot pursuit‖ of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (―Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.‖). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment.

Let that sink in for a moment.

With those few words, the Indiana Supreme Court determined that victims of illegal entries and searches only have a civil legal remedies for those illegal acts by the state.  This means that you have to suffer the violation of the curtilage of your residence, and it is on you to obtain redress for this violation after the fact.

“So what?” you ask.

Well, aside from turning the notion of preventing the invasion of privacy by the state on its ear, it also invites abuses by the state by enshrining as legal precedent the notion that it is easier to say sorry than it is to ask permission.  The home has always been sacrosanct in our jurisprudence.  The exceptions to the warrant requirements were a nod to the realities of public safety and duty that law enforcement had to provide it.  However , the minute that we are stripped of the right to defend against an illegal entry into our homes, and told that we can only seek a remedy after the fact, the state is given the green light to make mistakes and to exceed its authority on the basis of the judgment of its agents alone.

If the our forebears thought it important enough to hold our home and possessions out of the reach of the prying eyes of authority absent certain exceptions, to eliminate the right of prevention of such prying, and make the victim responsible for obtaining redress is a gross violation of the spirit of the law.  With such a right, the onus needs to be on the government…to have an exigent circumstance, to have a warrant, to have the correct address on the warrant.  We have the right to expect no less, and to make such a ruling reduces, rather than increases the government’s incentive to get it right and to have met its burdens.

Having said that, I think that the result in this case was the correct one.

If the Court had decided that a domestic violence call is an exigent circumstance, which would have been a reasonable conclusion, then it would have been a ruling that I could have supported.   But in this case, the Court used a nuclear bomb to light a fire when a match would have been sufficient, and basic liberty is now standing in the fallout zone.

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