Indiana repeals the 4th amendment?????

[DaveTN]

Dave:_________________

Were goin around in a big circle here. You seem to be missing a key fact (...as near as i can tell...).

I am missing the facts…

I’m missing the fact of how this expands cause for a search.

I’m missing the fact of how you came to the conclusion I think the cops won’t get shot. I have no facts to back it up, but I would bet they get shot at a much higher rate than innocent citizens.

I’m missing the fact of how this has anything to do with a “Cop driving down the streetâ€.

the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

I see nothing that indicates the entry or search can’t be ruled unlawful later; only that you can’t resist. Same as resisting arrest, you may be innocent, but you can’t resist arrest.

[leroy]

Dave:___________________

Please read this post from Redbarron:

Here is the problem. As I read the SCOTUS summary it come down to a officer walking down the street can smell something, then knock on your door ID himself. If he hears you move then he can kick the door down and conduct the search claiming that "he heard what sounded like the destruction of evidense". Because he claims to belive that you were destroying evidense he now has the go ahead from SCOTUS to search your house and seize anything he thinks may be illegal including hauling you off to jail.

Here is the SCOTUS decision read it for your self. Please tell me I am reading it wrong. I want to belive that I am readin it wrong. http://www.supremecourt.gov/opinions/10pdf/09-1272.pdf

With an officer adding the words "I thought I heard the destruction of evidence he may now come into your home at any time and without a warrant. You are left only with the option of standing their with your hands in your pockets and then cleaning up after he leaves if he does not arrest you when he does. Does anybody here think they they wont truck every gun you have off to see if they are on a stolen gun report, or every class III item you have until you prove to them you have the AFT forms?

And if they dont find anything, you dont even have the option of filing a complaint because SCOTUS has said it was not unconstitutional.

Then click the supremecourt.gov link included in the post and read the supreme's ruling.

Then go below and read all my baloney and it will make more sense. The real problem aint eh IN supreme court thing (...except in IN...). The "real problem is the US Supreme Court Ruling.

As i understand the "expanding the cause for search" (...and bear in mind that i may be missing or misintrepreting something here...) here is what i think i understand:

In the "old days" before this supreme court ruling; LEO needed a review by a judge prior to obtaining a "no knock unannounced" warrant. Its also my understanding that AFTER the issuance of that warrant, LEO serving the warrant would go to the house identified in the warrant; then serve it. The details of serving the warrant would be TO KICK IN THE DOOR AND SIMULATANEOUSLY IDENTIFY THEMSELVES AS POLICE. That gives the element of surprize and identifies the door kickers as legitimate law enforcement; and, in effect, allows you the time to stand down and not resist the entry. Warrants would be served during the normal times specified by local law , unless the review allowed for a "midnite"raid because of "vicious criminals, threats, etc".

Now to the CHANGES: This ruling appears (...to me at least...) to remove the requirement to obtain a judicial review. It appears to me (...again, i hope im wrong about this...) that all LEO needs to do an "unnannounced kick in the door" entry is "to think that a crime is in progress or that evidence is being destroyed". The change appears to be the removal of a judicial review for "probable cause" and prior to warrant issue and substitution of the individual officer's judgement without any review.

That means, in effect, if im LEO and im feuding with you and harboring a "hateful grudge", all i need to do to bushwhack you is to "think something is going on" work out an administrative approval with my supervisor, then kick in the door, shoot or jail you, and go on about my business. At the resulting inquest or trial; all i have to do is to say "i thought criminal activity or destruction of evidence was in progress". That gives an air tight defense for doing this heinous deed.

I fully agree with you that "crimes in progress" and "hot pursuit" is not changed by this ruling. The thing that does appear to change is the judicial review and what i would term the "i thought evidence was being destroyed" defense.

The whole crux of all the squalling and hollering about the fourth amendment violation is the removal of the independent judicial review for probable cause for "i thought they wuz destroyin evidence" and "i thought there wuz a crime in progress" pronouncement.

Hope this helps (...and i hope im wrong about it too...)

leroy

PS; WHAT WE REALLY NEED IS FOR SOMEONE WHO IS A LAWYER TO READ THE SUPREME COURT DECISION AND GIVE US HIS OPINION AS TO WHAT IT SAYS. I (...AND OTHERS MAY BE MISSIN SOMETHING...). I HOPE WE ARE...

Edited May 24, 2011 by leroy
added supreme court link and redbarron quote!!

[Guest 6.8 AR]

Getting adjudicated in your favor, after the fact,

is a poor excuse for having bad law becoming

acceptable. I don't think it is right to allow law

enforcement or citizens to be put in this situation.

A judge should be the least standard because it

allows for level( hopefully) heads to prevail. This

is too much for a police officer to decide, with all

the other stuff he has to do.

Sent from my iPhone using Tapatalk

[DaveTN]

Then click the supremecourt.gov link included in the post and read the supreme's ruling.

Then go below and read all my baloney and it will make more sense. The real problem aint eh IN supreme court thing (...except in IN...). The "real problem is the US Supreme Court Ruling.

That entire case was about exigent circumstances and whether or not the Police created them. Now get me to the part where you think (or fear) that a cop can somehow simply stop his car and kick down your door while you are in bed sleeping. I’m at a loss of how anything you read in those 27 pages would lead you to that conclusion.

I will admit that I did not read all 27 pages; I could see where it was headed and I already know what happens.

Nothing can protect you from a cop with a “hateful grudge†if he is willing to commit a criminal act to get you… nothing.

Life’s tough; wear a helmet.

[DaveTN]

Getting adjudicated in your favor, after the fact,

is a poor excuse for having bad law becoming

acceptable. I don't think it is right to allow law

enforcement or citizens to be put in this situation.

A judge should be the least standard because it

allows for level( hopefully) heads to prevail. This

is too much for a police officer to decide, with all

the other stuff he has to do.

Sent from my iPhone using Tapatalk

Where do youdraw the line? Unless you are suggesting that under all circumstances the cops call a time out and call a Judge; there will be cases where a warrant is not required. They are called “exigent circumstances” and they will always exist. They are not “too much” for a Police Officer to make a decision on. There is no one more qualified to make that decision; unless there happens to be a Judge withthe Officer. But even then there may not be time to break out the lawn chairs and have a discussion about whether or not there is cause.

[leroy]

Dave:_______________

If i understand this right; here is the "money pronouncement". Its found on page 20 of the pdf of the opinion. Here is the quote:

....IV We now apply our interpretation of the police-createdexigency doctrine to the facts of this case.

A We need not decide whether exigent circumstances existed in this case. Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency.

The italicized portion talkin about the "exigent circumstances" presumes that there are some; and leaves that judgement to the individual officer. That says to me, at least, that if LEO "thinks" a crime is goin on; mind ya, he doesnt KNOW ITS GOIN ON, he simply "thinks" it. He can proceed with a warrantless no knock entry and explain it all later. You couldnt do this before this particular ruling unless there was clear evidence of a "crime in progress", "hot pursuit", etc.

Check out what that noted commie ruth bader ginsburg says about this (...a one in a million shot, she is probably right on this one...)

It starts on page 23 of the pdf. Here it is:

JUSTICE GINSBURG, dissenting.

The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neu-tral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant. I dissent from the Court’s reduction of the Fourth Amendment’s force.

The Fourth Amendment guarantees to the people “[t]he right . . . to be secure in their . . . houses . . . against un-reasonable searches and seizures.” Warrants to search, the Amendment further instructs, shall issue only upon a showing of “probable cause” to believe criminal activity is afoot. These complementary provisions are designed to ensure that police will seek the authorization of a neutral magistrate before undertaking a search or seizure. Excep-tions to the warrant requirement, this Court has ex-plained, must be “few in number and carefully delineated,” if the main rule is to remain hardy. United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297, 318 (1972); see Kyllo v. United States, 533 U. S. 27, 31 (2001).

This case involves a principal exception to the warrant requirement, the exception applicable in “exigent circum-stances.” See ante, at 6–7. “[C]arefully delineated,” the exception should govern only in genuine emergency situa-tions. Circumstances qualify as “exigent” when there is an imminent risk of death or serious injury, or danger that evidence will be immediately destroyed, or that a suspect will escape. Brigham City v. Stuart, 547 U. S. 398, 403 (2006).

The question presented: May police, who could pause to gain the approval of a neutral magistrate, dis-pense with the need to get a warrant by themselves creat-ing exigent circumstances? I would answer no, as did the Kentucky Supreme Court. The urgency must exist, I would rule, when the police come on the scene, not subse-quent to their arrival, prompted by their own conduct.

I ...

Now, do ya see what were all talkin about?

leroy

[DaveTN]

The italicized portion talkin about the "exigent circumstances" presumes that there are some; and leaves that judgement to the individual officer. That says to me, at least, that if LEO "thinks" a crime is goin on; mind ya, he doesnt KNOW ITS GOIN ON, he simply "thinks" it. He can proceed with a warrantless no knock entry and explain it all later. You couldnt do this before this particular ruling unless there was clear evidence of a "crime in progress", "hot pursuit", etc.

Where do you get the “and leaves that judgment to the individual Officer†part? Read on… they are simply saying that they are not addressing that question.

“Any question about whether an exigency actually existed is better addressed by the Kentucky

Supreme Court on remand"

Now, do ya see what were all talkin about?

No.

[leroy]

Dave:_______________

These exact words of the opinion effectively say (...i think....) that "we (...the court...) will always take the officers sole judgement as a bonafide "exigent" circumstance" (...if im readin this right...):

IV We now apply our interpretation of the police-createdexigency doctrine to the facts of this case.

A We need not decide whether exigent circumstances existed in this case. Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency.

When the supremes say "we need not decide..." thay are, in effect, saying that the "officer will decide for himself (...whithout any consultation; again ---- if we're reading this right....).

By the way; i hope you are right and a bunch of us and komrade ginsberg are wrong.

leroy

[Guest 6.8 AR]

Are you in the right thread?

Yes, he's in the right thread. You brought that up, DaveTN, when you reiterated one has legal

recourse. well, that recourse costs money. Unless you assume lawyers are free. I think they have to eat, also.

[East_TN_Patriot]

ET. You have drawn conclusions on that data. Are

you really going to stick to the notion that someone

else can't draw a different conclusion?

My issue is HOW people draw their conclusions. When people disregard facts in order to back up their own opinion and then treat that as fact, I take issue with it. Opinions are like @$$holes. Informed opinions, based on a wide variety of facts and information, are not. Every arguement I've read here is grounded on a completely false and incorrect assumption about what these cases said. That is not just any old opinion. It's much like the gun control nuts who base their "opinions" on false assumptions and emotional responses to the issue. Are you suggesting that their opinion is just as valid as yours? It's like saying the sky is green, but no matter how much information you hear, you refuse to admit that it's blue and then say that your opinion on it being green is totally legitimate and just as correct as those who say the sky is blue.

Edited May 25, 2011 by East_TN_Patriot

[East_TN_Patriot]

The italicized portion talkin about the "exigent circumstances" presumes that there are some; and leaves that judgement to the individual officer. That says to me, at least, that if LEO "thinks" a crime is goin on; mind ya, he doesnt KNOW ITS GOIN ON, he simply "thinks" it. He can proceed with a warrantless no knock entry and explain it all later. You couldnt do this before this particular ruling unless there was clear evidence of a "crime in progress", "hot pursuit", etc.

leroy

Yes, you could. That's exactly what "probable cause" is. It's an educated guess based on information at hand. If the officer has enough information to believe that there is a crime in progress, the reasonableness clause of the 4th Amendment has been met. Probable cause is nothing more than a collection of observations that lead the officer to draw a conclusion about whether a person has just engaged in a crime, is in the process of engaging in a crime, or is getting ready to commit a crime. It has to be enough information that another reasonable person when given the same facts would draw the same conclusion. Not only do the facts have to lead the officer to "think" a crime is taking place, but eventually a jury of normal folks will have to "think" the same thing when the information is given at trial. Probable cause is a much lower standard than "proof beyond a reasonable doubt," which is required to convict at criminal trial, and even that standard does not require absolute certainty. No where in this case does the Court give the police to kick in doors on a random hunch or mere suspicion.

[East_TN_Patriot]

Yes, he's in the right thread. You brought that up, DaveTN, when you reiterated one has legal

recourse. well, that recourse costs money. Unless you assume lawyers are free. I think they have to eat, also.

And this is actually a very important point. Poor folks have very little recourse when their rights have been violated because lawyers don't work for free. This has been a major issue in the criticisms of asset forfeiture.

[leroy]

ET:___________________

Are you sayin here that it is your judgement (...and apparently in Dave's judgement; although i hesitate to speak for him and put words in his mouth...) that the supremes appear to be sayin that they believe that in this specific case, and in this case alone --- that the "exigent requirements" were met; or that they will from this point forward "....they will assume that any indepependent judgement made by the LEO have been met...."?

If it is the first; i can buy the "there aint any significant change position."

If it is the second, we are back on the warpath again with LEO being able to do a no knock, kick in the door search without any independent review for "probable cause" when there is no danger, mayhem, hot pursuit, or clear criminal behavior in progress?

leroy

[DaveTN]

Are you sayin here that it is your judgement (...and apparently in Dave's judgement; although i hesitate to speak for him and put words in his mouth...) that the supremes appear to be sayin that they believe that in this specific case, and in this case alone --- that the "exigent requirements" were met; or that they will from this point forward "....they will assume that any indepependent judgement made by the LEO have been met...."?

I’m saying that you are taking something out of context, highlighting it and then addressing it. I don’t think it is your intent to take it out of context, but the way I read that entire section they are saying that they are not addressing whether or not exigent circumstances exist.

The SCOTUS was not asked to decide if exigent circumstances existed. They were asked if exigent circumstances make a warrantless search reasonable.

* * *

Like the court below, we assume for purposes of argument that an exigency existed.

Because the officers in this case did not violate or threaten to violate the Fourth Amendment prior to the exigency, we hold that the exigency justified the warrantless search of the apartment. The judgment of the Kentucky Supreme Court is reversed, and the case is remanded for further proceedingsnot inconsistent with this opinion.

It is so ordered.

[leroy]

Dave:_______________

If this is right:

...I’m saying that you are taking something out of context, highlighting it and then addressing it. I don’t think it is your intent to take it out of context, but the way I read that entire section they are saying that they are not addressing whether or not exigent circumstances exist. ....

If this is right; i agree with you. My line of thinkin was that it could be read two ways. That was the reason for the arguement.

leroy

[Guest 6.8 AR]

My issue is HOW people draw their conclusions. When people disregard facts in order to back up their own opinion and then treat that as fact, I take issue with it. Opinions are like @$$holes. Informed opinions, based on a wide variety of facts and information, are not. Every arguement I've read here is grounded on a completely false and incorrect assumption about what these cases said. That is not just any old opinion. It's much like the gun control nuts who base their "opinions" on false assumptions and emotional responses to the issue. Are you suggesting that their opinion is just as valid as yours? It's like saying the sky is green, but no matter how much information you hear, you refuse to admit that it's blue and then say that your opinion on it being green is totally legitimate and just as correct as those who say the sky is blue.

And I agree with you, ET. The problem is when something gets adjudicated and decided a certain way "something changes" doesn't it?

Something always changes and it is not necessarily for the good.

I accepted your explanation, earlier, for exigent circumstances, and agree those situations are exclusions. I may not have examined the new law with the same vigor you have, but I do know that the 4th Amendment is being gutted by the continued existence of the Patriot Act and the recent rulings from POTUS and Indiana Supreme Court if it concludes by allowing a policeman to knock down a door to supposedly "preserve evidence" or "suspects" a crime is being committed.

That's not law enforcement, just brute force.

The 4th allows reasonable search upon review by a judge issuing a warrant, exigent circumstances aside. Exigent meaning witnessing a crime being commited, and the rest of what you mentioned.

Some of us lazy Americans including Justice Ginsberg and Judge Napolitano feel this way for the Constitution's sanctity. We are tired of seeing it get raped.

I don't see anyone twisting facts to form their unique opinions, although I see them sharing their point of view. We are not in class, but I do see your point of view. I've enjoyed this discussion. I hope I have been holding up my end.

As far as the asset forfeiture laws go, these are the most corrupt and heinous laws on the books, and can be used to destroy wealthy and poor people alike. Just think IRS on Steroids. And wonder where the money goes? To fund more of the same abuse.

We the people allow this crime to continue for all the wrong reasons. I've had the threat of money being taken from me like this, but stopped it. I was lucky, and I am not wealthy.

[Guest Lester Weevils]

Here is an article about a young veteran killed in a no-knock war on drugs raid. Shot 60 times, though he never fired a shot at the police.

This buck has stopped at the desk of Tucson Sheriff Clarence Dupnik, the same hero who blamed the Giffords shooting on Right Wing Hate Speech.

Tucson SWAT Team Defends Shooting Iraq Marine Veteran 60 Times - ABC News

[East_TN_Patriot]

ET:___________________

Are you sayin here that it is your judgement (...and apparently in Dave's judgement; although i hesitate to speak for him and put words in his mouth...) that the supremes appear to be sayin that they believe that in this specific case, and in this case alone --- that the "exigent requirements" were met; or that they will from this point forward "....they will assume that any indepependent judgement made by the LEO have been met...."?

If it is the first; i can buy the "there aint any significant change position."

If it is the second, we are back on the warpath again with LEO being able to do a no knock, kick in the door search without any independent review for "probable cause" when there is no danger, mayhem, hot pursuit, or clear criminal behavior in progress?

leroy

No, the only time a LEO can do any sort of entry without a warrant is when the officer has suitable evidence to support the belief that exigent circumstances exist. It's been that way since before I started policing in 1997. If a cop kicks in your door without a warrant or probable cause, they are violating the 4th Amendment, will likely subject themselves to civil penalties, and may even open themselves up for criminal charges. I totally get your point that we don't want the police to be able to kick in doors on a whim, but these particular cases did not take us anywhere down that road.

[East_TN_Patriot]

And I agree with you, ET. The problem is when something gets adjudicated and decided a certain way "something changes" doesn't it?

Something always changes and it is not necessarily for the good.

I accepted your explanation, earlier, for exigent circumstances, and agree those situations are exclusions. I may not have examined the new law with the same vigor you have, but I do know that the 4th Amendment is being gutted by the continued existence of the Patriot Act and the recent rulings from POTUS and Indiana Supreme Court if it concludes by allowing a policeman to knock down a door to supposedly "preserve evidence" or "suspects" a crime is being committed.

That's not law enforcement, just brute force.

The 4th allows reasonable search upon review by a judge issuing a warrant, exigent circumstances aside. Exigent meaning witnessing a crime being commited, and the rest of what you mentioned.

Some of us lazy Americans including Justice Ginsberg and Judge Napolitano feel this way for the Constitution's sanctity. We are tired of seeing it get raped.

I don't see anyone twisting facts to form their unique opinions, although I see them sharing their point of view. We are not in class, but I do see your point of view. I've enjoyed this discussion. I hope I have been holding up my end.

As far as the asset forfeiture laws go, these are the most corrupt and heinous laws on the books, and can be used to destroy wealthy and poor people alike. Just think IRS on Steroids. And wonder where the money goes? To fund more of the same abuse.

We the people allow this crime to continue for all the wrong reasons. I've had the threat of money being taken from me like this, but stopped it. I was lucky, and I am not wealthy.

We agree completely on this issue. I agree that I think the government is constantly gaining new power and our privacy rights are eroding before our eyes. I'm furious about it. I think the Patriot Act, while useful, has also given the government unprecedented and unconstitutional powers. Are these essential for protecting our nation? I'm skeptical, very skeptical. I just think it's important for all of us to make sure we understand the issues and not waste time and energy on issues that aren't really issues at this point. As I mention in response to Leroy's post, I totally agree on the concern for police power and the 4th Amendment. I believe that DUI checkpoints are a clear violation of the 4th Amendment and case law because the criteria laid out by the SCOTUS is pretty clear on what circumstances are required to justify these checkpoints and the police generally don't follow them. I believe that the TSA is a blatant violation of the 4th Amendment. I believe that the police regularly overstep their authority and violate our rights, not because they are power-hungry thugs, but because the general tone of policing encourages it and reinforces the behavior. The cops don't really know the difference because they are a product of the occupational and agency subculture they are a part of. Like I've said a couple of times before, if you disagree with the decisions in the case in a "I didn't realize the cops could do that! That's a bunch of crap!" sort of way, then we can definitely have that debate, and I can see that point, but there really isn't anything new here on these decisions as far as I can tell. We're on the same team here for sure and good intelligent debate is good for all of us on these issues.

[Guest UberDuper]

It doesn't state you have no expectation to privacy or against illegal search and seizure. I take it as you can not forcefully resist an entry by a LEO. That doesn't mean you don't have recourse if it truly is a violation of rights or illegal.

So we're okay with cops walking into your house and seizing all your guns then arresting you for protesting as long as you can just hire a lawyer and sue them to get out of jail, retrieve your property and maybe get the cops wrist slapped?

[DaveTN]

So we're okay with cops walking into your house and seizing all your guns then arresting you for protesting as long as you can just hire a lawyer and sue them to get out of jail, retrieve your property and maybe get the cops wrist slapped?

Wants the alternative? You can object all you want, and most people that are the subject of a search do object, but they do it vocally not physically. If you cross the line to resisting or obstructing you will be arrested on those charges.

If you pull a gun on the Police, you are at the very least going to jail, and more than likely someone is going to die. You cannot resist Police doing a search and you cannot resist arrest simply because you don’t think the Police have met their requirements.

The purpose of these rulings is simply this… We have a legal system, not a justice system; there is nothing “just” about it. Mistakes are made, innocent people are arrested. But it’s the best system we can come up and it is continually evolving. The legality of an arrest or search will be argued in the courtroom, not on the street with physical violence.

It seems to me that everyone here is fine with a warrantless search or entry if it protects the life of an innocent person, and not the protection of evidence. The courts disagree.

And in most of the cases where someone was killed there was a warrant signed by a Judge. There was in the Lebanon case, they just had the wrong house. There also was in the case where the guy pointed a gun at a SWAT team.

[leroy]

....No, the only time a LEO can do any sort of entry without a warrant is when the officer has suitable evidence to support the belief that exigent circumstances exist. It's been that way since before I started policing in 1997. If a cop kicks in your door without a warrant or probable cause, they are violating the 4th Amendment, will likely subject themselves to civil penalties, and may even open themselves up for criminal charges. I totally get your point that we don't want the police to be able to kick in doors on a whim, but these particular cases did not take us anywhere down that road. ....

Thanks! I FINALLY understand this. WHEW!!

Keep up the good work.

leroy

[leroy]

....Here is an article about a young veteran killed in a no-knock war on drugs raid. Shot 60 times, though he never fired a shot at the police.

This buck has stopped at the desk of Tucson Sheriff Clarence Dupnik, the same hero who blamed the Giffords shooting on Right Wing Hate Speech.

Tucson SWAT Team Defends Shooting Iraq Marine Veteran 60 Times - ABC News

...

Lester:______________

I saw this one too the other day. Thanks for posting it. Looks to me like Sheriff Dupnik has got a lot of "splainin" to do on this one. I anxiously awaiting the real story on this one.

Thanks again for posting this link.

leroy

[DaveTN]

I anxiously awaiting the real story on this one.

Video, documents answer questions about SWAT raid - KGUN9 On Your Side, Tucson News, Weather & Sports

http://reason.com/blog/2011/05/27/what-does-the-swat-marine-data

Edited May 28, 2011 by DaveTN

[leroy]

Video, documents answer questions about SWAT raid - KGUN9 On Your Side, Tucson News, Weather & Sports

What Does the SWAT Marine Data Dump Prove? - Hit & Run : Reason Magazine

Thanks Dave. I had'nt seen this one. This one will be interesting. Sixty holes in one body is a lot of shootin. They musta thought he was a thoroughly dangerous man.

leroy