Posted on 05/16/2011 8:40:02 PM PDT by wrastu
Cboldt's "definition" uses the term "unlawful entry" in it; it can't be the definition of how to determine if something's an unlawful entry...try again.
Officer J. Bauer of Tinytown P.D. comes through your door yelling, "Police!" -- legal or illegal entry? Let's say you blow him away, or block his entry. In his dying words, he lets you know he was in hot pursuit of the guy with the detonator switch who's ducked into your back mudroom...it was legal entry. Or that your wife had called 911, asking for police to respond (as was the case in this case).
Tell me...unless you're God, how do you know it's an illegal entry?
Remember also, as a side issue, that the case in question dealt with a lawful entry, but the reason it came up is the attempt by the defense to use a jury instruction that dealt with unlawful entry.
Or if the officer had the right address, as was the case in this Indiana case, where the wife called 911 and the husband went over to her place (he'd left) and blocked the officer's entry to the place.
That's what the Constitution says.
That's why Jim pretty much requires the use of the sarcasm (/s) tag. Sarcasm doesn't come across well in print.
It's not my definition, plus, the term of art that is evaluated is the "reasonable belief."
-- Tell me...unless you're God, how do you know it's an illegal entry? --
That question cuts both ways, for the invader, and for the home occupant. What has changed is the ability of the homeowner to attempt to convince a jury of peers (which, by definition, is an exercise in hindsight) that he had a reasonable belief (not a metaphysical certainty) that he was under an unlawful entry.
“kicking the tires” - great term.
As warrant czar, I’d recognize that some crimes require immediate action to preserve evidence or prevent further harm. In those cases, the police MUST get a warrant, based on pre-entry information, within 24 hours - else the case would be treated as though no warrant had been issued (well, it hasn’t) with the standard consequences thereof. The kicker is that the cops MUST be right in their decision, else suffer due punishment. Just because some act is allowed doesn’t mean leniency if you screw it up.
In conjunction, laws under which urgent searches are retroactively warranted should be subject to review. In the case at hand, I agree the search should be allowed (presuming a judge issued a retroactive warrant promptly thereafter) as a matter of reasonable execution of law, BUT I hold that the law criminalizing the activity being investigated is unconstitutional. Sometimes it is sensible to do X in light of Y, but that X came up at all indicates Y is suspect.
As for obvious questions of abuse of privilege, I find karma is a bitch. Obviously abuse should be punishable, obviously those in power will abuse their power and further abuse power to prevent punishment for that initial abuse, and eventually it all piles up and backfires badly. Burst into someone’s home without a warrant immediately obvious, and you risk terminal perforation - regardless of the Indiana verdict of late.
For get it, get over it. pack sand (gosh I hope your offended, and hammer me on this as well)
First, how about some cites to the "majority" of other states.
Second, if the majority of other states said it was ok for the State to randomly stop vehicles and search them would you support that as well?
How about randomly accessing your computer to see what websites you are visiting?
Randomly accessing your bank accounts?
Randomly accessing your phone records?
Randomly accessing your medical records?
And when the courts start citing a "majority of other countries" as a basis for eviscerating the Bill of Rights where will you come down?
btrl
And did he send back a reminder that, in America, an accusation doesn’t mean someone is actually guilty?
But, of course, you realize this case doesn’t authorize random searches. You’re just using those examples as red herrings, right?
“As warrant czar ... the police MUST get a warrant, based on pre-entry information, within 24 hours”
One other thing to add, I think that judges with the authority to issue warrants should have official email addresses and warrants could be issued via email while the officer is on the field. There could even be warrant judge specialists. It would help to upgrade probable cause based on today’s technology, I think.
On the flip side, webcam tech and surveillance cameras keep getting more affordable. Illegal searches will nail police quite effectively. Is that enough to balance abuse of power by a corrupt sheriff?
Over in Bedford, Virginia, there was a sheriff neck deep in drug dealing. He got away with it for over a decade, and it took the FBI to end his regime. Would modern domestic surveillance tech be enough to put guys like him out of business?
“husband went over to her place (he’d left) and blocked the officer’s entry to the place.”
Blocking entry of an illegal search [if it was in fact illegel] doesn’t harm anyone. But if it wasn’t his property, and no one asked him for help [right?], then it’s not so clear.
Did his wife set him up or something? Why did he try to stop the police? I tried google and dogpile — haven’t found any html article yet.
Depends on what he’s doing and where.
And remember that those surveillance recordings are evidence - ALL of them. When trying to nail someone to the wall, remember they’ll have reason to do the same to you, using your own evidence.
Last few years have had a lot of stories & cases involving recording police activity without their knowledge. Lots of interesting material, well beyond soundbite size.
It’s all laid out in the opinion. As I recall...
His wife called 911 because he was throwing stuff around. He hadn’t actually hit her.
When the police officer arrived, he said he was leaving (she was throwing him out) and that the officer wasn’t needed. But when the wife went back inside, the husband went to the doorway and blocked the officer from entering while the wife was telling him to let the officer in.
There was a scuffle and the guy tried to get jury instructions entered about blocking illegal entry. These were denied and the guy appealed. I am not a lawyer, but it seems to me that the case didn’t really have to go into the illegal entry arena because it was conceded as likely legal entry even in dissenting opinion.
Thank you for the summary. And I’m serious. If you were warrant czar for a day, what laws would you decree?
“decree” is a harsh word. I don’t mean to sound snarky, sorry.
It wasn't a "search"...it was responding to a victim's call.
Second, "doesn't harm anyone"? So these loonies talking about shooting officers just because they believe an entry is illegal doesn't hurt anyone?
The point made boils down to the idea that letting a fleeing felon go (if the officer is in hot pursuit), or not stopping a terrorist bomb, or holding up a valid warrant on your kid who's a murderer (unbeknownst to you), etc., would be worse than letting an illegal entry occur. There's no recourse if the felon escapes, the bomb goes off, or you find that the warrant is legal and the murderer escapes. On the other hand, if the search is illegal, the police face criminal and civil legal actions.
It's funny...I'm often called a reviled libertarian around these parts (FR). But this is a rare case where I think some practical reality has to be faced. On the other hand, if I have only the power of "warrant czar," I don't think we're going to get very far because of the way courts operate these days (catch-and-release).
I believe that principles being used by the "defense" crowd are applicable on the other side: "reasonably believed" and "good faith".
I believe that most illegal entries that occur are made in good faith. That doesn't make them right, and it doesn't mean I don't see the need for a castle doctrine. However, I believe that we must get to the point where we can agree that when a law enforcement officer is on the scene, it's not something to fear. And if that trust is broken, then it's the time we resist.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.