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.

What exactly does the Fourth Amendment mean?  Historically, that has meant that certain places and items were considered “private”, and that the state has no authority to enter, search or seize anything from that area without a judicial warrant that explains, with specificity, what is to be searched and seized (and possibly whom to arrest.)  In other words, you have a Constitutional right to deny law enforcement access to your home unless they can produce a search or arrest warrant.  Now, in certain cases, the warrant requirement can be waived, but only under a very specific set of circumstances, all of which involve urgency and immediacy and a response that simply cannot wait for a warrant (one thinks of gunshots or frantic screams for help.)

The Indiana State Supreme Court was recently presented with a test of the extents of the Fourth Amendment.  A companion to the Fourth Amendment is actually rooted in English Common Law, dating back to the Magna Carta, and has been upheld by the U.S. Supreme Court.  In essence, it states that a citizen may use reasonable means to prevent law enforcement from gaining unlawful access to his property.  A citizen can’t go around shooting law enforcement officers, but it was held that citizens had the right to deny entry and, to a limited degree, physically bar officers from entry until a warrant was produced.

The case of Barnes v. State of Indiana revolved around a set of denied jury instructions citing the common-law right to prevent police from entering a home.  Barnes and his wife were having a domestic dispute, and 911 was called.  Before the police arrived, the situation de-escalated, and when the police arrived, both Barnes and his wife made clear that there was no urgency or immediacy in effect any more, and Barnes explicitly stated that he was refusing police entry.  His wife never told the police they could enter (in other words, either a warrant or probable cause was necessary at this point.)  The police forced their way in, Barnes tried pinning an officer against the wall, was subdued and arrested for physically obstructing an officer in his duties (or whatever it’s called) and was put on trial.  Barnes wanted to include jury instructions that a reasonable defense of one’s home against unlawful police entry was legally permitted.  The judge disagreed, and the jury convicted.  Barnes then appealed to the state Supreme Court on the grounds that the judge got the law fundamentally wrong.

The Indiana Supreme Court’s majority opinion replied with this little gem: “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, according to the Indiana Supreme Court, the right to be secure in your person or home against unreasonable searches and seizures CAN be violated, instead, restitution must be sought after the fact.  The INSC framed this in the context of de-escalating violence and protecting lives.  Obviously, this is a major concern: you don’t want to encourage people to rough up law enforcement, especially in probable cause situations.  The problem is this: the ruling essentially gives law enforcement carte blanche to act with impunity when it comes to entering private property.  One sheriff gleefully commented that he was going to be able to go door-to-door during manhunts, and citizens would have no means of refusing entry.  On its face, this is consistent with the INSC’s ruling.  it is also, on its face, in flagrant violation of the Fourth Amendment.

Indiana is not the only place that’s decided the Fourth Amendment no longer fits in with how society ought to work.  The State of California is poised to pass an “anti-piracy” bill that will allow warrantless searches of CD and DVD duplication sites, and authorize the seizure of equipment suspected to be used in piracy.  Granted, there is a far more limited scope to the effect of this legislation, but it still circumvents the Constitutional mandate that there be a strong enough suspicion for law enforcement to get a judge to agree to allow specific places and specific equipment to be searched.

I’m not a Constitutional law expert, but it seems clear to me that the intent of both the Magna Carta and the Fourth Amendment was to afford a measure of privacy and security to private citizens.  In particular, it is the best and strongest defense against “fishing expeditions” to look for things that might be illegal so the state can later act on those illegalities.  The INSC decision and proposed California legislation fundamentally alter that balance: instead of the burden of proof being on the state to demonstrate the necessity of violating a “reasonable expectation of privacy”, it is now incumbent on the violated individual to demonstrate that the state had no business being there.

I understand and appreciate INSC’s interest in de-escalating violence and trying to keep people from getting hurt.  Unfortunately, the very broad ruling means that even a common-sense approach is no longer valid.  In the Barnes case, all Barnes was asking for was for a jury to decide if police intervention was lawful or not.  That is an appropriate issue for the jury to decide.  If the police could demonstrate probable cause (i.e. a 911 call trumps the reasonable expectation of privacy with regard to home entry), Barnes had no case and would be convicted.  If Barnes could demonstrate that the police acted without probable cause (i.e. the 911 call had de-escalated and the police were aware of the de-escalation), then his Fourth Amendment rights remained intact.  I do not favor manhandling law enforcement officers, and I don’t like violence.  But the INSC has now made it so the only real limiting factor on the power of law enforcement to enter homes is the ability of the private citizen to retain a lawyer to sue law enforcement for Fourth Amendment violations after the fact.  And I shudder to think what would happen if an unlawful entry were to lead to a warrant based on something the officer saw while unlawfully in someone’s home.

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