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4th Amendment

Landmark Supreme Court Ruling on Technology and the Fourth Amendment

From The Heritage Foundation:

On Monday, the Supreme Court issued an important ruling on the subject of surveillance in light of today’s technologies. Its opinion in United States v. Jones makes the rules for surveillance much less clear, which perhaps is not surprising given the rapid technological change and the need for further legislative and judicial action to address these complex new issues.

Law enforcement long has used surveillance to track the comings and goings of suspects, probationers, and parolees as well as suspected spies, terrorists, and the like. Surveillance was oftentimes necessary and always valuable to make a case. Surveillance also helps law enforcement learn when a crime is about to occur so that the police can prevent it or catch the perpetrators. The actual conduct of surveillance traditionally involves “shoe leather,” binoculars, cars, and cameras, with a team of cops following a suspect as he travels about.

Traditional surveillance did not raise many novel legal issues. Over 50 years, the Supreme Court had repeatedly ruled that what a person exposes to the public—e.g., his location on city streets—is public information that the government may freely use for any lawful purpose.

Monday’s decision changes that rule. Because the federal government suspected Antoine Jones of drug trafficking, it attached a Global Positioning System (GPS) tracking device to the undercarriage of his wife’s car, tracked his whereabouts for about 30 days, and used that evidence against him at trial. The Supreme Court decided that attachment and use of that device to monitor Jones’s movements constituted a “search” for purposes of the Fourth Amendment. Placement and use of a GPS device on Jones’s car was a trespass on his property by the government, the Court reasoned, which amounts to a “search.”

It is most likely that the Supreme Court found troubling the government’s ability to keep track of anyone and everyone through use of modern-day technology, particularly a GPS device. The Court mentioned the fact that the police in the Jones case used visual surveillance and a fixed camera as part of the investigation, and the Court did not criticize the use of those longstanding techniques. The reason may be due in part to their inherent limitations, not just because they do not involve a trespass. There has always been a practical limit on the number of police officers that could be assigned to a particular surveillance operation, the number of cameras that can be installed in public areas, and the amount of time that a person would expose himself to public surveillance. Those practical limitations create less public and judicial angst when the police use those surveillance practices, which affects how the public and courts feel about their use without prior judicial authorization.

Modern-day electronic surveillance devices, however, explode those limitations. The difference between using shoe leather or a Crown Vic to follow a suspect and a GPS device for surveillance is a difference in kind, not degree (or, if it is a difference in degree, it’s like the difference between a body temperature of 98.6 degrees Fahrenheit and one of 28.6 degrees). The problem is that technology has so enhanced the ability of law enforcement to track someone—whether through security cameras spread throughout a city; bank deposits and withdrawals; credit card transactions; vehicle, school, employment, and financial databases; facial recognition software; and so forth—that the old paradigm no longer may apply. From here on out, whenever the government overcomes the physical limitations on human observation by using any newfangled contraption, the claim will be made that use of the device is a “search.”

That much is certain. How the Fourth Amendment regulates surveillance after Jones, however, is an open question. The Court limited its decision to both the GPS device used on Jones’s car and the narrow legal issue raised by his case. The implications of what the Court held, however, are far broader than the case itself. Does Jones require that traditional surveillance techniques also be treated as a search? Must the police obtain a search warrant before using a GPS device? And what rule applies when the government uses such equipment to watch suspected terrorists (or spies) rather than street thugs? Expect to see a flurry of litigation over these types of questions in the months to come.

Protest Rally Report — Justice Steven David at the Columbia City Rotary Club

We gathered at the intersection of U. S. Highway 30 and Indiana 205 at about 11:30 AM today.  We had about 10 people show up and hold signs and wave at traffic.  The weather was horrible…rain and 30 MPH wind gusts.  Freedom is not a fair-weather enterprise.

We watched as the Rotarians attending the meeting drove past us to get to the Eagle’s Nest Event Center.  Some people honked and gave ‘thumbs up’ in support of our effort to prevent Justice Steven David from winning a retention vote in November 2012.

We were invited by a private property owner across the street from the Eagle’s Nest to set up a banner and flag in his yard.  He also put a large sign on his garage door — “When people fear government, there is tyranny”.

We were also visited by local media… The Columbia City Post & Mail, Talk of the Town Whitley County, and Indiana’s News Center came to see what we were doing.

PATRIOTS PROTEST: Group takes exception to Chief Justice visit — The Post and Mail

Supreme Court justice’s visit expected to draw property owner’s rights protesters Tuesday — Talk of the Town Whitley County

Whitley County Patriots gather in protest — Talk of the Town Whitley County

Here’s a report from Indiana’s News Center:

We can only hope that our message about Justice David was able to reach a wider audience due to the protest rally.

Whitley County Patriots to Protest Justice Steven David in Columbia City — LATEST UPDATE

LATEST UPDATE — Parkview Health has forced the Columbia City Rotary to relocate this meeting!  Meeting is now at the Eagle’s Nest Event Center…see below for details.

Justice Steven David of the Indiana Supreme Court ruled in the case Barnes v. State of Indiana that a homeowner does NOT have the right to resist UNLAWFUL police entry.  Please see the following information on our website:
http://www.whitleycountypatriots.org/tag/4th-amendment/

He also ruled on a case in Ogden Dunes that a homeowner does not have a right to RENT his/her property if it’s in a single-family residence zoning area.
http://www.hoosieraccess.com/2011/10/10/property-rights-in-the-dock-siwinskis-vs-ogden-dunes/

We do not appreciate Justice David’s opinions on 4th Amendment issues and private property rights.  We intend to let him (and the rest of the Rotary attendees) know our opinion.  We will also be inviting the media.

We have learned that Justice David may be considered for Chief Justice once Randall Shepard retires. We believe this would further restrict the freedoms enjoyed by Indiana’s citizens.  We will be campaigning for the NON-retention of Justice David in the upcoming November election.

For an excellent write-up on the issues surrounding Justice Steven H. David, read Jennifer Zartman Romano’s article on Talk of the Town Whitley County.

I would like to invite all area TEA Party/9-12 groups to come march with us. Bring your signs, but please keep it civil.

Protest Rally Details:

Parking will be along County Road 150E, just north of US 30 on SR 205, turn left onto CR 150E.

The protest rally will be at the northeast corner of U.S. Highway 30 and State Road 205, beginning at 11:30 AM.  We expect to conclude by 12:30 PM.

Please observe and stay within the public right-of-way for the highways…see the image below.

 

 

Whitley County Patriots to Protest Justice Steven David in Columbia City — UPDATE

UPDATE — Parkview Health has forced the Columbia City Rotary to relocate this meeting!  More updates to follow as information becomes available.

Justice Steven David of the Indiana Supreme Court ruled in the case Barnes v. State of Indiana that a homeowner does NOT have the right to resist UNLAWFUL police entry.  Please see the following information on our website:
http://www.whitleycountypatriots.org/tag/4th-amendment/

He also ruled on a case in Ogden Dunes that a homeowner does not have a right to RENT his/her property if it’s in a single-family residence zoning area.
http://www.hoosieraccess.com/2011/10/10/property-rights-in-the-dock-siwinskis-vs-ogden-dunes/

We do not appreciate Justice David’s opinions on 4th Amendment issues and private property rights.  We intend to let him (and the rest of the Rotary attendees) know our opinion.  We will also be inviting the media.

We have learned that Justice David may be considered for Chief Justice once Randall Shepard retires. We believe this would further restrict the freedoms enjoyed by Indiana’s citizens.  We will be campaigning for the NON-retention of Justice David in the upcoming November election.

Protest Details:

We will be assembling at the Peabody Public Library on SR205 south of US30 at 11:30AM, and marching down to the entrance of the Parkview Whitley Hospital.

I would like to invite all area TEA Party/9-12 groups to come march with us.

 

Supreme Court justice says ‘rule of law’ ruled decision in police-entry case

Folks, Justice Steven David ruled in Barnes v. State that you do not have the right to resist UNLAWFUL entry by law enforcement officers  This essentially nullifies the 4th Amendment of the US Constitution, and Article 1, Section 11 of the Indiana Constitution, both regarding the right to be secure in our homes against unlawful search and seizure.  Because we value this right, we are quite upset about this ruling.  Justice David is up for confirmation in 2012…just say NO to any further loss of our freedoms.

The following article is presented to show you how Justice David is being portrayed as a ‘victim’ of an ‘unreasonable reaction’ to his ruling.  We’ve got work to do in order to insure Justice David’s retirement in 2012.

From the New Albany News and Tribune:

BY MAUREEN HAYDEN CNHI

INDIANAPOLIS — Indiana Supreme Court Justice Steven David may have given legal observers a clue to his judicial philosophy when he was sworn in a year ago.

He’d been described by Republican Gov. Mitch Daniels, who appointed him, as a conservative unlikely to overturn legal applecarts.

But in his post-swearing-in speech, David said his loyalty to “the rule of law” would trump partisanship, politics and public pressure.

Turns out he had to prove it sooner than he thought. At seven months on the bench, David wrote a court opinion on a police-entry case that irked conservative legislators, triggered Statehouse protests and prompted death threats.

Read the rest at the New Albany News and Tribune.

Indiana High Court doubles down on Barnes

From Angry White Boy:

Last May the Indiana Supreme Court surprised constitutionalists and patriots the nation over by calling the “castle doctrine” — that is, the age-old view that a man’s home is his castle, his place to defend from all unauthorized invasions — a thing of the past.

The newly minted Justice Steven David, writing for himself, Chief Justice Randall T. Shepard and Justice Frank Sullivan, decreed the following to be Indiana law (over the dissent of justices Robert Rucker and Brent Dickson):

“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. … Nowadays, an aggrieved arrestee has means available at common law for the redress against unlawful police action.”

Please note that the Royalist “we” above is limited to 60 percent of the Indiana Supreme Court in 2011. Three contemporary men in black have taken it upon themselves to roll back almost 800 years of common law. Thus the hubris that is post-modernity is on full display in Indianapolis.

On Tuesday, this same court reaffirmed its May ruling, allegedly “clarifying” (i.e., in a manner likely to pacify the politicos getting grief from their constituents) that their decision visits no harm upon the Fourth Amendment. (Rightly understood, that is — which really means Leftly understood, of course.)

The Indiana Supreme Court now assures us that even though it uprooted common law established by Magna Carta in 1215, the court did not intend to encroach upon the Bill of Rights hammered out some 560 years after that seemingly optional social compact. And lacking the intent to encroach, must not have encroached, right?

Read the rest at Angry White Boy.

Mike Pence addresses the recent Barnes vs Indiana Supreme Court ruling

From Wrap Your Head Around:

Mike Pence (R-IN-6) responds to questions about the recent Indiana Supreme Court ruling regarding the right to reasonably resist an unlawful police entry into a home and about Article 11 Section 7 of the Indiana constitution which states “All bills or notes issued as money shall be, at all times, redeemable in gold or silver.”

AG Zoeller Argued for Expansive Barnes v. State Holding; Said Only Thing Homeowner Should Do Is Hold Door

From Ogden On Politics:

Attorney General Greg Zoeller has stated publicly that his office didn’t ask for the Supreme Court’s expansive ruling in Barnes v. State and has now asked for a rehearing to narrow it. Given Zoeller’s track record of a lack of candor in public statements, I decided to go to the Clerk’s Office and read the petition for transfer briefs myself.  It turns out my suspicion the Attorney General did ask for the broad ruling was right.

In the Attorney General’s Petition to Transfer, Zoeller’s Office asked that the Indiana supreme Court find that the right of a person to resist unlawful entry into one’s home by a police officer be limited to holding the door shut against the attempts of the officer to open it. According to the position enunciated by Deputy Attorney General Karl Schonberg, any touching of the officer to remove the officer from the home would be a battery and should not be considered “reasonable force.”

The Attorney General cites the Court of Appeals case, Robinson v. State, 814 N.E.2d 704 (Ind. App. 2004), a case which seems to mix up the concept of resisting an unlawful entry and resisting arrest.  More importantly the case predates the 2006 “no retreat” amendments to IC 35-41-3-2.  That statute now says in pertient part:

(b) A person:

(1) is justified in using reasonable force, including deadly force, against another person; and

(2) does not have a duty to retreat;

if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.

Not only did the Attorney General’s Office completely overlook that statute which is a defense to the charge of battery, so did the Vanderburgh County Public Defender’s office.  In its Response, the Vanderburgh County pointed out that the issue of whether it was a “battery” or “reasonable force” is a jury question.

The Attorney General’s Office either doesn’t understand the law or doesn’t care to.  That you are using “reasonable force” to repel an unlawful entry to one’s home is a defense to a battery on a police office. Interpreting the law so that battery is never “reasonable force” is to render the legal defense to battery meaningless.  Now that the Indiana General Assembly enshrined into the Indiana Code the legal principle that a homeowner can use “reasonable force” to protect himself from unlawful entry by (and there is no exception for police officers) into one’s home, the Court can’t simply read that statute out of the Code.  In this case though, it appears the Indiana Supreme Court simply missed the statute.

Barnes v. State: Why the Constitution Doesn’t Matter

From Ogden On Politics:

Today I attended a rally at the Indiana Statehouse, a protest against the Indiana Supreme Court’s opinion in Barnes v. State which held that “the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.”

Most of the discussion at the protest rally centered on the importance of upholding the Constitution and how the decision rips apart the 4th Amendment while ignoring hundreds of years of precedent.  But in fact, the Constitution, as well as the case law discussed by the majority in the opinion, are irrelevant.

That the Constitution doesn’t matter might come as a shock to those who attended the rally.  However, one of the most fundamental principles of federalism is that states are always free to give you more rights than what is provided by the Constitution.  In 2006, the Indiana General Assembly did passed Public Law 189-2006, the so-called “No Retreat” law.  Here is how that law is summarized on the Clark County Prosecutor’s website:

P.L. 189-2006 amended the self-defense statute, IC 35-41-3-2, to make clear that a person has no duty to retreat before using force or deadly force…

IC 35-41-3-2(b) states:

A person:

(1) is justified in using reasonable force, including deadly force, against another person; and

(2) does not have a duty to retreat;

if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.

There is no exception in the law for police officers who do the unlawful entry.   With the adoption of the statute, it doesn’t matter that the Constitution may not provide protection to the homeowner against the law enforcement officer entering the home unlawfully.  Again, states are always free to provide more legal protections than that mandated by the Constitution.  Unless the statute is contradicted by another statute or is somehow unconstitutional, then the statute would control.   The court appears to have completely missed IC 35-41-3-2(b) in its analysis in Barnes.

Governor Daniels was also confused by the Court’s overlooking the no retreat law, i.e. IC 35-41-3-2(b).  The Indiana Law Journal reports:

Earlier today at Gov. Daniels’ media availability at IUPUI, reporters asked him for his thoughts about the recent Indiana Supreme Court decision regarding illegal entry. The governor said he was puzzled by the ruling.

To expand on that comment, David Pippen, the governor’s general counsel, said this afternoon the governor’s questions relate to the no retreat law the governor signed in 2006, which seems to be in conflict with the ruling and would trump the case law basis for the court’s determination. That statute was not raised during the course of the case. The no retreat law unequivocally strengthened the rights of Hoosiers to be secure in their homes, and the existence of the statute seems to provide ample reason for a rehearing.

Looking at the facts of the case, the police officers’ entry seems perfectly justified under existing law.  There seemed to be no need to create new 4th Amendment law.  Nonetheless, the 4th Amendment doesn’t matter once the Indiana General Assembly passes a law giving homeowners the right to prevent or terminate an unlawful entry.  I am not sure how the Court overlooked IC 35-41-3-2(b).

Time For A Judicial Re-Do?

From State Senator Jim Banks:


Time For A Judicial Re-Do?
By State Sen. Jim Banks
May 23, 2011

After a legislative session with its share of landmark policy decisions, I was eager to return home, get back to my family and my regular job and take a break from policy battles.

Unfortunately, the Indiana Supreme Court had other plans.

The outrage rolling across the state against an Indiana Supreme Court ruling has been one of the few things to unite people from different political backgrounds. With just a few simple words, Justice Steven David launched a devastating attack on individual Hoosiers’ liberties:

“We hold that there is no right to reasonably resist unlawful entry by police officers. We believe however that a right to resist unlawful police entry is… incompatible with modern Fourth Amendment jurisprudence.”

Contrast Justice David’s words with the actual text of the 4th Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

I will not short change the concerns about the specifics of the case that brought this matter to the attention of the Indiana Supreme Court. Domestic violence is a serious matter and law enforcement officials must be free to protect citizens in accordance with the rights and restrictions placed on these officers by the Constitution. Unfortunately, the court’s ruling in this case will do very little to protect citizens from the horrors of domestic violence and might even open the door to abuse by some law enforcement officials.

Indiana Attorney General Greg Zoeller went on the record stating the court has ruled too broadly. Newton County’s Prosecutor Jeff Drinski issued a statement clarifying that random “door-to-door” searches would NOT be permitted in his jurisdiction. Drinski took this action after comments attributed to Newton County Sheriff Don Hartman, Sr. suggested that his officers would do so since it was permitted by this ruling.

It’s hard to believe that the court can simply decide that modern conveniences like bail, prompt arraignment and civil recourse actually trump our Constitutional rights.

The Fourth Amendment wasn’t randomly demanded by the states. Rather, it reflected an outgrowth of protection that then-colonies had already recognized in many instances in their own codes of laws. There are several examples of these colonies adopting laws protecting ordinary citizens from similar illegal incursions by government authorities.

Put yourself in the shoes of an American colonist. At the time, the Common Law guarantees enshrined in the Fourth Amendment were not a given in the colonies. British soldiers did not require justification to enter and search your home. It was just one of many examples of how property rights were not recognized by the Crown in the lead up to the American Revolution.

News articles are already circulating about law enforcement supervisors who are more than ready to flex their muscles under the new-found “freedom” granted by this court ruling.

The nature of our part-time legislature in Indiana has left many citizens feeling powerless. I’ve fielded many calls and emails from constituents who are worried that we can’t stop this dangerous ruling from being implemented. Though we don’t return to the Statehouse until next January, I am already working with other senators on drafting an amendment that will ensure our freedoms can’t be encroached by unelected state Supreme Court justices.

Governors get to select a lawyer from a group vetted by a nominating commission. We citizens get to vote to keep them or throw them out by voting to retain them for another term. How many people will have their rights trampled before then?

While in the short term I’m committed to working with my fellow conservative legislators to restore these Constitutional rights, over the long term it is clear that Indiana needs to open a debate about judicial accountability. There are a number of options on the table-perhaps giving the people a voice on these nominations by requiring the Senate to consent to these appointments is appropriate (similar to Federal judges as well as the states of Delaware and New York). Another solution used in many states might be to elect justices to the bench rather than simple appointments.

The bottom line is that Hoosiers demand greater accountability across all levels and branches of government, and this ruling throws that need into stark relief. Join me and conservative Hoosiers across the state to make your voices heard on this issue, so we can fight back and prevent this attack on our liberties from taking hold in Indiana.

God Bless America

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