Police Now Have Unprecedented Power to Invade Our Home

May 28, 2011 • Commentary
This article appeared on Cato​.org on May 28, 2011.

Before the American Revolution, when we were King George III’s colonists, his customs officers and soldiers, writing general warrants (writes of assistance) all by themselves, barged into offices and private homes in dragnet searches.

“Our houses and even our bed chambers,” reported enraged Bostonians, “are exposed to be ransacked, our boxes, chests and trunks broke open, ravaged. … Flagrant instances of the wanton exercise of this power have frequently happened in this and other seaport towns.

“By this we are cut off from that domestic security which renders the lives of the most unhappy in some measure agreeable.” (Linda Monk, The Bill of Rights: A User’s Guide).

This regal contempt for these new Americans was one of the most precipitating causes of the American Revolution — and for the inclusion of the Fourth Amendment in the Constitution’s Bill of Rights:

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 (by judges) 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.

Our founders, whatever the differences among them, would be enraged by a May 15 decision (Barnes v. State of Indiana) by the Indiana Supreme Court. In a 3‐​to‐​2 ruling, Justice Steven David ruled that “police can enter private homes without exception.”

Wait! That’s nowhere in the Fourth Amendment. Justice David, ruling nonetheless for the court, stated “if a police officer wants to enter a home for any or even for no reason.”

What caused this home invasion? Richard Barnes reportedly was having a domestic dispute with his wife. The police asked if they could enter, but Barnes refused, blocking the doorway. The police rammed in anyway, and then “the husband shoved the officer against the wall. A second officer then used a stun gun on the husband and arrested him.”

Make note of this: “There were no charges regarding domestic violence.” Why did the cops break in when refused admittance? The clear legal answer from blogger David Drum (Barnes v. State of Indiana, 2011), Jonathan Tur​ley​.org, May 15: “Once the officers saw that there was no domestic violence, only a domestic dispute, they had no grounds for remaining on the scene.”

Washington‐​based Jonathan Turley is a constitution lawyer with whom I often consult.

David scoffed at such pettifogging. The search was unreasonable and so unlawful; but he said, resisting forceful police demanding entry “is against public policy and is incompatible with modern Fourth Amendment jurisprudence.”

That part of the Bill of Rights is old hat?

Web News Jax was alarmed (May 19): “Not only is this (an) attempt to rewrite the Forth Amendment, this will set a precedence for other draconian courts to do the same.”

Not only courts. “Indiana sheriff says he will conduct random house‐​to‐​house searches if he damn well feels like it after this ruling.” (Jonathan Turly​.org.)

But, startling as it is, this is only a scary judgment by the Supreme Court of a single state.

However, how concerned would you be if the U.S. Supreme Court turned the Fourth Amendment upside down? Our highest court recently has done just that, with only limited media attention that lasted a couple of days — except for some angry, shocked bloggers.

How many Americans even know what’s in the Fourth Amendment — let alone why and where it came from as it ignited our self‐​liberation from England?

On May 16, many police — local, state and FBI — were heartened to learn from the Supreme Court — as Adam Liptak reported in the New York Times — that “the police do not need a warrant to enter a home if they smell burning marijuana, knock loudly, announce themselves and hear what they think is the sound of evidence being destroyed” — in Kentucky v. King. Justice Samuel Alito, writing for the majority of the court, delivered the decision.

This was an 8‐​to‐​1 decision. The case was described fairly up to a point by Liptak — customarily a superior reporter on legal matters whom I often quote. But the daring lone dissenter, Justice Ruth Bader Ginsburg probed the dangerous significance of this ruling more searchingly and troublingly.

She said: “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 neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

How many of you have heard of this decision — particularly including Justice Ginsburg’s piercing dissent? Increasingly, much of what happens at the Supreme Court in cases that may change the lives of many Americans — is not reported fully, in depth and lucidly.

And because the Supreme Court rigidly refuses to allow TV cameras into an oral argument to show who these super‐​powerful justices are — their temperaments, how they think and react to lawyers arguments on both sides — the huge majority of us would not recognize most of the august nine justice if they were all packed into the same elevator.

Yet these nine are the ultimate guardians of the supreme law of our land. And though the majority has sent this case back to the Kentucky Supreme Court to reconsider the definition of “exigent,” it won’t work. I have read the Kentucky Supreme Court decision. In any case, Alito says his ruling will stand. So police now have unprecedented power to unreasonably and unconstitutionally invade our most vital remaining privacy — at home.

Two FBI agents once tried to search my office, without a warrant. I’m not a lawyer, but I know my Fourth Amendment rights. I sent them away and never heard from them again. J. Edgar Hoover was displeased I wrote about the failed visit.

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