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Can a No Trespassing Sign Keep Police Away?

Can No Trespassing Signs Prevent the Police from Entering Your Property for a Search and Seizure?

There are many misconceptions about a person’s right to be free of unreasonable search and seizures, especially when it concerns searches of private residences.

Can a No Trespassing Sign Keep the Cops Away?One common mistaken belief is that no-trespassing signs will keep the police off private property if they don’t have a warrant. Similarly, it is also a common belief that even if the police have a warrant, they must knock before entering a home or even announce themselves as the police. Surprisingly, none of these actions by the police are covered under the protections of the 4th amendment.

So What Does the 4th Amendment Protect Against?

The 4th amendment’s protection against search and seizure is the bedrock of all law concerning the search and seizure of a citizen’s person or property. It was the unfettered discretion and abuse of the police power that led to 4th amendment protection. It is important to be familiar with the exact phrasing, in order to appreciate the limitations of the police’s power to enter a home or search one’s property. The 4th amendment states that:

“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.”

However, over the last century, it has been the job of state and federal courts to interpret these words and create exceptions. As the challenges to searches make their way through the courts, such as the police entering property despite the presence of no-trespassing signs, the courts consistently rule against the suspect. Below is more explanation to this complicated area of law.

What Can Keep the Police from Searching My Property?

The law states that there is an intrinsic right of people to enjoy an “expectation of privacy.” This means that, generally speaking, the police are not permitted to enter one’s home without a warrant. If they have a proper warrant there is very little one can do to challenge a search.

When it comes to merely entering a person’s property to speak with a suspect, the courts have recently ruled that the police may enter without a warrant. The reasoning is that the general public has an implied license to knock on a door without actually entering and, therefore, the police can as well. Unfortunately, a no trespassing sign is not enough to revoke the right. However, there have been a few successful challenges to the “implied right” to enter the property. The suspect may be able to keep their right to privacy to keep the police from walking on the property at all by:

  • locked gate
  • call box or a sign with a telephone number directing the visitor to police to call first
  • Guard dogs if there is a sign announcing they are present

Finally, the police can actually enter a home or property without a warrant, if certain conditions exist. Exceptions to the 4th amendments warrant requirement include:

  • Open Fields Doctrine – any open or undeveloped property that is not intimately used for dwelling (including curtilage.) An example would be the suspicion that the suspect is growing marijuana in a wooded area. They can enter the area without a warrant.
  • Abandoned Propertywhen the owner does not maintain possession of the property
  • Consent – when the owner or person in possession of the property voluntarily gives their consent. The police do not need to inform the owner of this right. Also, recently the Supreme Court ruled that if a person is arrested and refuses to give their consent, they can ignore that consent and search if the remaining occupant gives consent.
  • Exigent Circumstances – immediate action is necessary. The time it will take to obtain a warrant could lead to the evidence will be destroyed, death or escape.
  • Plain View – the police can seize any item they have probable cause to believe is associated with criminal activity that he sees in plain view. This item can be seized even if it is not named in the warrant and will likely be added to the suspect’s charges.

Do I Need Legal Advice?

If your home has been searched and you feel that your expectation of privacy has been violated, you should immediately contact an experienced criminal law attorney. Even if the police try to use one of the exceptions to the requirement of valid warrant, an attorney will help ensure that you put forth the best defense possible.

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Why Stand Your Ground Laws Are Bad for America

Stand your ground” laws have been controversial since Trayvon Martin’s death. With stand your ground laws in twenty-three states, the unfortunate case of Trayvon Martin was only the beginning. In a recent case, 17-year-old Diren Dede, a German exchange student, was killed when he was shot four times by Markus Kaarma in Montana.

stand your ground laws and Diren DedeMarkus Kaarma was arrested and charged with homicide. Teens “garage hop” in Montana—a game that involves sneaking into random garages to steal beer. Kaarma’s home had been the target of two recent burglaries. In response, Kaarma, father of an infant, installed motion sensors and video cameras to monitor his home. A witness told police that Kaarma had been waiting three nights with his shotgun “to shoot some kid.”

It’s not clear whether Dede entered Kaarma’s home to steal alcohol or the marijuana Kaarma had on his property. Nevertheless, Germany is calling for justice for Dede’s death.

Dede’s death is comparable to Trayvon Martin. In both cases, the state removed requirements for self-defense arguments. In Florida, the state removed the duty to retreat from public places if the person was lawfully there as long as the person didn’t start the conflict. In Montana, lawmakers lowered resident use of deadly force from belief that assailants would use violence to a reasonable belief that deadly force was necessary. The underlying logic is the same: the gun owner’s right to self-defense is paramount.

The problem with this change in self-defense laws is that it undermines the rule of law. If Dede had been captured by the police, he probably would have had a few years in prison for burglary.  Instead, he received the death penalty at the discretion of one man. Dede was put to death for a crime which would have warranted at most a few years of jail. And Dede was put to death without trial. Compare that to the murderers and rapists, real vicious criminals, who spend decades on death row with years of appeals before they are executed. Under stand your ground law, young people like Trayvor and Dede are given fewer rights than serial killers.

Politically, this case trades the explosive internal racial tension of Trayvon Martin for international hypocrisy. It’s difficult to sell political rights in countries like China when foreign citizens are being killed for burglary without trial in our own backyard. In 1994, Singapore wanted to cane Michael Fay for vandalism. President Clinton convinced Singapore to commute the sentence from six strokes of a cane to four, even though Singapore canes its own citizens six times for vandalism. Since Dede is dead, Germany cannot ask for clemency for a punishment that Germans feel is barbaric. It’s impossible, given that Dede’s “punishment” is not given to American citizens for the same crime. Somehow, Singapore has more social equality than we do.

“Cleaning Fairy” Clips Her Own Wings, Pleads Guilty to Attempted Burglary

In these unstable economic times, business owners will go to great lengths to increase business. Susan Warren, owner of Sue Warren Cleaning, decided to go beyond advertising though and give potential consumers a sample of her services. The problem, however, is that Warren rarely bothers to get the consumer’s permission first.

Warren entered the home of Sherry Bush on May 22, 2012 in order to clean the dishes, vacuum the floor and take out the trash. She didn’t take anything. Mallory Bush, the homeowner’s eighteen year old daughter, was asleep upstairs and assumed it was her mother when she heard all the noise. But when Mallory came downstairs, she found a napkin with Warren’s phone number, address and a bill for seventy-five dollars. Sherry told Mallory no cleaning lady had been hired, so Mallory called the police.

Ohio police called Warren, who insisted she hadn’t cleaned the Bush house by mistake, but that Warren randomly cleaned people’s houses all the time. Warren was arrested and charged with burglary and criminal trespass. She recently pled guilty to attempted burglary.

Some readers might be confused why Warren was charged with burglary if she didn’t take anything from the Bush household. However, the crime of burglary is not trespassing to steal; burglary is trespassing to commit a crime. Most burglaries are done to commit a robbery, rape or murder, but cleaning a house is not a crime in any state, so the underlying crime for burglary is absent in this case.

The prosecution could have argued the un-consented billing of seventy-five dollars was a claim of ownership over the money. Since the Bush family never consented to the job, Warren’s expectation of being paid could be viewed as theft by trickery. However, it is highly doubtful most judges would believe that “theft” should be stretched to include unwanted work. The guilty plea to attempted burglary might have been unnecessary given that the prosecution would have a difficult time proving actual burglary.

More importantly though, Warren’s story is a textbook example of why the right to remain silent is so important. In one phone conversation, Warren wavered her strongest defense and multiplied the number of possible charges the District Attorney could bring against her. If a criminal defense attorney had been present with Warren when she spoke with the police, the attorney would have advised Warren not to disclose she had the correct house or that she often went into people’s homes to perform un-consented cleanings.

Although neither the defendant nor the attorney can lie, the burden is on the prosecution to raise charges and disprove defenses. By saying she had the correct house, Warren shot down any mistake of fact defense she could have made. Mistake of fact means that the defendant meant to do the right thing, but got confused about how to follow the law. In this case, Warren could have said she meant to do a legal job, but mixed up the addresses instead. Of course the police could have asked for Warren’s business records to see if she actually had a legal job that day, but it’s doubtful the police would have pursued a nonviolent crime this closely if Warren hadn’t been so defiant about what she made done.

However, not only did Warren kill one of her best defenses, she also gave the police more ammunition to give a harsher sentence. If a defendant says she has done a supposed crime before, that statement doesn’t excuse the defendant from committing the crime. Instead, the police will investigate other burglary reports so that they can hold Warren responsible for those crimes as well.

So remember, if you are ever charged with a crime and the police are speaking with you, ask for an attorney and then be quite until that attorney arrives. Doing otherwise might result in your case becoming a wash.

Drug Sniffing Dogs Go To The Supreme Court

The old saying is that a dog is a man’s best friend, but this proverb wouldn’t apply if the best friend assisted in getting the man arrested. The use of dogs has continued to climb since the Supreme Court announced in U.S.  v. Place (1983) that the use of dogs to find drugs was not a search under the Fourth Amendment’s prohibition against search and seizures without a warrant. However, the latest case before the high Court asks whether the use of dogs triggers the other half of the Fourth Amendment: obtaining a search warrant through probable cause.

In 2006, Florida police received a tip that Joelis Jardines was growing marijuana in his home. A few weeks later, the police created a parameter outside Jardine’s house. They had Franky, a dog trained to find drugs, sniff the front porch of the home.  When Franky confirmed the drug tip, the police knocked on Jardine’s door. Although Jardine didn’t answer, the officers could smell marijuana. The police returned a few hours later with a warrant. Jardine, meanwhile, attempted to flee through the back door but was caught and arrested.

At trial, Jardine’s attorney conviced the judge not to allow any evidence obtained from the search; the defense counsel argued Franky was not enough of a probable cause to permit the use of the warrant. The case has slowly gone through the Florida judicial system, until it has finally reached the nation’s highest court.

Preceding case law appears to be on the government’s side, but is much more conflicted than the first few cases suggest. In 1983, the Supreme Court ruled that the use of dogs did not constitute a search. In Illinois v. Caballes (2005), the use of dogs in routine traffic stops was considered legal, based on the idea that the stop was already legal to begin with and that the use of the dog was legal provided that it wasn’t unreasonably invasive of the person’s privacy. However, the Supreme Court has also ruled that the police cannot violate the privacy of the homeowners through the use of invasive technology, such as thermal devices. Kyloo v. United States (2001).

Unfortunately for Mr. Jardine, the Supreme Court is likely to strike down the trial court’s order to exclude the evidence collected. Although a citizen can expect a certain amount of privacy in their home, Franky was simply outside the front door when the area was examined. The Court denied the constitutionality of thermal devices because the device allowed the police to look into the house. In this case, Franky was detecting the odors leaving the house. Given that the officer himself could smell the drugs once he knocked on the door, it wasn’t a matter of the police looking into the house so much as the defendant’s crime being noticeable from outside the house’s walls. It’s important to note that the use of dogs is not considered a search while the use of the thermal devices was.

 The Court will likely limit the use of dogs to a “reasonable expectations of privacy” again. Oddly, this was the point raised by the lower courts in Florida: the use of the dogs was invasive of property. The police enclosed the area around the defendant’s house before obtaining the warrant. It is also highly questionable if placing dogs in front of a person’s house wouldn’t be invasive of privacy. The Court has created a “front door” test, limiting privacy questions to everything inside the house rather than on the property as a whole.

The ultimate question though, and one which dissenting justices on the Supreme Court has raised, is whether dogs are truly a reliable means to detect drugs. Dogs can be trained to find drugs, but the assumption that a dog can never be wrong is a dangerous one when the issue of personal liberty is at stake. A dog’s sense of smell is much more accurate than a human’s, but it would be legally safer to rule that the officer smelling the marijuana was a better reason to ask for a warrant. That opens up its own can of worms though, as some judges might not want to extend the “plain sight” doctrine to an officer’s nose as well. Given the alternatives though, relying on an officer’s senses while the officer is standing outside the defendant’s front door is better than relying on a dog who cannot testify on its own reliability.

Court Says No Right to Resist Cop’s Unlawful Home Entry

Not in Indiana.

It’s generally accepted in the United States that a person has a right to physically resist unlawful entry into their home by someone else. This sometimes includes the use of lethal force, in cases where the lives or safety of the occupants.

However, what happens when a police officer mistakenly, but unlawfully, enters a home? Do the occupants have a right to resist in those cases? This is especially relevant when police have “no-knock” warrants, which allow them to enter without first announcing themselves. If they go to the wrong address, the occupant may well believe that he is the victim of a home invasion, and respond accordingly. This sometimes leads to tragic cases we occasionally hear reported in news, where a law-abiding homeowner is gunned down by police after they mistakenly serve a no-knock warrant at the wrong address, and the homeowner shoots at the police, thinking they’re common criminals.

For years, there has been an intense debate over what right a person has to physically resist unlawful actions by law enforcement officers acting in their official capacity. The arguments on both sides are pretty straightforward. Proponents of the right argue that this country was founded on, among other things, the right to be secure in one’s home against everyone, including the government, and that the burden should be on police officers to ensure that they are at the right address before entering a home, and should announce their presence. They assert that a homeowner can’t be expected to determine, in a second or two, that the people bursting into his or her home are police officers, and he or she should be able to exercise his right to self-defense, which would clearly apply in a home invasion by anyone else.

On the other hand, opponents argue that such a right would simply encourage violent confrontations between citizens and police, and a police officer acting in the good faith, but mistaken, belief that he is being fired upon by a criminal has a right to defend himself, as well. Furthermore, they argue that the average person is in no position to determine whether the conduct of a police officer is legal, in most situations, and that cases of citizens acting in self-defense against unlawful police action should be judged after the fact, on a case-by-case basis.

Recently, the Indiana Supreme Court weighed in (PDF) on the issue. The case involved police officers responding to a domestic disturbance. When they arrived at the home in question, one of the residents told them not to come in, and began yelling at them. He then shoved one of the officers against a wall, and was subdued with a stun gun. He was tried and convicted of disorderly conduct, and battery on a police officer.

His attorney submitted jury instructions to the judge that mentioned a right to resist an unlawful entry or arrest by police officers. The judge refused to use these instructions, and made no mention of such a right when instructing the jury.

He appealed his conviction based on that jury instruction, and it went to the Indiana Supreme Court. The Court ruled that allowing a blanket right to physically resist unlawful police action would simply increase the risk of violent confrontations, the risk of injury to both the arrestee, and the arresting officer, and would be highly unlikely to actually prevent an unlawful arrest.

Honestly, I’m conflicted about this decision. The right to resist unlawful police conduct has been part of our common-law tradition for hundreds of years, and arguably serves as a very important check against abuses of government power. However, it started hundreds of years ago, long before dedicated, organized police forces were commonplace, and there were no trained, professional law enforcement officers. This means that day-to-day law enforcement activities were usually undertaken by members of the local community, and abuses of power might be more common. Furthermore, firearms were far less common than they are now, so a violent confrontation was far less likely to result in the death of one or both parties.

Also, other remedies, including criminal prosecution of police officers, suppression of unlawfully-obtained evidence, and civil rights lawsuits are now available.

Of course, if a police officer is clearly engaged in unlawful activity, and threatening to hurt or kill a person for no reason, nobody would, or should, blame that person for acting in self-defense, and a court should judge their actions accordingly.

However, whether or not you agree with this decision, one thing is certain: the reaction of some people to it has been unacceptable. In Indiana, some police officers, as well as justices of the State Supreme Court, are receiving death threats in response to this decision. This is never an acceptable response to a decision that you don’t like.

It’s perfectly understandable that this decision is going to create some controversy. Even though times have changed a lot since the old-school common law reigned supreme, it’s still an important part of our legal and cultural tradition. That does not mean, however, that threatening judicial officers who made a decision that you don’t like is the way to go. If anything, it simply gives more ammunition to their decision.