In an EzlerLaw Blog Entry last week, “Indiana Supreme Court Errs Heavily in Favor of Law Enforcement This Week in a Pair of Surprising Decisions”, I wrote about the controversial decisions the Indiana Supreme Court reached early last week.  In response to these decisions, two (2) editorials were written by the Northwest Indiana Times and Post-Tribune, respectively entitled, “Controversial Court Ruling Produces More Questions than Answers,” 21 May 2011 and, “Police Downplay Impact of Court Ruling on Home Entry,” 23 May 2011.

I suppose if the La Porte County Sherriff doesn’t remember ever entering a dwelling illegally in his long career, the controversy should end there.  As we all know, police officers always exercise the best judgment on whether to enter a residence.

In reality, there are three (3) and only three (3) reasons an officer may enter a dwelling: 1) warrant, 2) consent, and 3) exigent circumstances.

I listed these three (3) justifications in the order I did because they are in the order of legal standing.  When an officer has a search or arrest warrant, the premises may be searched.  A warrant is constitutionally only issued upon probable cause presented to an officer of the court.  Assuming this was done correctly, an arrest or search warrant is the least controversial way an officer can gain entry to your home.

The second means by which an officer can legally gain entry to your home is by consent.   This is more controversial than the warrant, because the standard of proof for consent is subjective.  In other words, it is within the officer’s discretion whether you consented to the entry.  As well, officers are known for coaxing or coercing consent to enter and search residences.  (If you need support for this, just watch the TV show, “COPS” for 10 minutes and you’ll see what I’m referring to.)

The third and questionably the most controversial way for police to gain entry to your home is by exigent circumstances.  Again, this prong relies heavily upon the discretion of the police officer in determining just what qualifies as an “exigent circumstance”.  The legal standard is supposed to be if the police believe that there is a substantial threat of death or serious bodily injury to someone within the structure, they may enter to prevent the threatened harm.  But here’s the catch:  even if no exigent circumstances are discovered at the conclusion of the entry (and let’s be honest, in most cases a subsequent search for contraband), as long as the officers had a “reasonable belief” that exigent circumstances existed at the time of the entry, the entry is justified (as well as any evidence recovered along the way).

I went to this length to explain exactly what these recent decisions do.  So, even where none of these fairly ambiguous and arbitrary justifications cannot be met, police–and not the citizens–have the discretion to determine whether entry upon someone’s residence is legal or illegal.  THIS is the reason that people are outraged at the decision; it places the final determination whether to enter a persons dwelling–something that our Forefathers believed was sacred and deserved the highest and greatest protection–in the hands of the officers.

Now I agree with the editorials here that we do need to safeguard officers’ safety.  Of course we do.  They are our first responders and our first line of defense.  I have the utmost of respect for police officers and what they do; but they are not lawyers, and they are not judges.  We should not place within their discretion decisions that civilian professionals should make.

The real danger is the entry in the first place.  If police don’t enter, violence, by definition, cannot occur.  If we turn down the notch of zealousness of our police officers just a notch, perhaps officer safety would be less of an issue.  What safety does maximizing the number of residential entries promote?

The articles also explain that the defendant’s sole remedy lies in the civil justice system.  Obviously, those featured in the article, as well as our Indiana Supreme Court justices, have never filed a civil action against a municipality.  There are many, many challenges and obstacles that make this remedy available in very few of all cases where illegal entry has been made.  First, there is no possibility of success without first retaining an attorney; more practically, a seasoned attorney with many years of experience in civil rights litigation.  This is not cheap, by any stretch of the imagination.  Next, you have to give Tort Claims Notice.  This is a formal requirement that even many seasoned lawyers screw up.  You have to give notice to every “affected agency” and within very stringent timelines.  If you fail to do so, you have forever lost your opportunity to pursue a legal remedy.  If you succeed, there are a whole litany of steps that you must take–to exceed what must be done in a “normal” lawsuit–in order to prevail against a municipality or government.  If you pass this phase, you must prove you were damaged by the illegal entry and be able to demonstrate such damages.  This may sound simple, but here is an example:  if an officer illegally comes into your home and sees, for instance, your wife’s lingerie laying on the couch, were you damaged?  How much? Can you prove it?  Do you see the problem here!?

As far as getting any evidence recovered as a result of an illegal entry, it’s a crap shoot.  Most of the time the court will get it right.  That is, that when illegal searches are made, the evidence obtained from the search is suppressed.  But at this point, the defendant has spent countless hours and dollars fighting the state’s action in suppressing evidence the state should not have obtained in the first place.  Is a dismissal of a criminal action against you really a remedy at all? Does it make you whole from the illegal search?  Not hardly, in my opinion.  And, that’s not to say, what if the court gets it wrong and admits evidence obtained illegally against you!?  It happens…

Lastly, do you think the average citizen will behave differently in light of an Indiana Supreme Court decision.  Will it make any difference to the average Hoosier whether the common law doctrine of a right to reasonably resist an illegal search is overturned?  Some lawyers aren’t even paying attention to these decisions.   Will this decision prevent citizens from battering police officers trying to obtain illegal entry into their homes simply because the Supreme Court wrote an eleven page legal opinion?  Again, not hardly.

When the Attorney General–the advocate whose job it is to prosecute and uphold the conviction–says that the court went too far, it should be an indication that the Court is far overstepping its constitutional bounds.  Hopefully, the Court comes to its senses on rehearing.  If not, the Federal courts will get a shot at getting it right.