BOEHM: Court got it right on warrantless entry case

October 8, 2011

Ted BoehmYou may have read of the recent fuss over a decision of the Indiana Supreme Court dealing with the rights of citizens to resist police entry into their homes. As you know, or should know, both the Constitution of the United States and the Indiana Constitution prohibit unreasonable searches and seizures. In general, these constitutional rights prohibit police entry unless a court has issued a warrant.

There are a few exceptions to the warrant requirement. The one most frequently invoked allows police to enter where there is not time to get a warrant if it is necessary to prevent an injury. The concept is simple: If the officers can save a life or prevent an injury, it is not unreasonable for them to enter, even if it results in an intrusion into a citizen’s home.

Courts have long struggled with the nuances that various fact situations produce, and although multi-volume treatises have been written on the subject, some general rules are pretty well settled.

There is no doubt that a warrant is ordinarily required before police may enter a home over the objection of the residents. So if the police show up at your door and ask to come in to discuss a claim that someone has issued a forged check, you may refuse, and they are required to try to get a warrant and persuade a court that there is a good reason—usually that there is probable cause to believe you are harboring evidence of a crime—to invade your home.

But what if the police show up not at 3 p.m. with a request to enter, but at 2 a.m. in response to a 911 call from a hysterical person reporting a bloody domestic brawl, and when they arrive they hear apparent screams of pain?

I expect few courts would find either of these cases difficult, and would deny entry in the first and allow it in the second. But what happens in the real world is often not so clear. There are thousands of variations of the facts between these two extremes, and reasonableness of an entry is often fairly debatable. Police are faced daily with split-second decisions in situations where witnesses offer differing accounts and the available information is incomplete.

The issue is, what happens if police insist on entering when the law does not allow it? The courts have developed the rule that a citizen may deny entry, but if officers nonetheless insist on entry, the citizen may not use force to resist. You can’t shoot him or punch him in the nose.

That’s the rule, widely accepted as standard doctrine, that the Indiana Supreme Court was following in rejecting the defendant’s claim that he was justified in responding with a shove of an officer seeking to investigate a claim of domestic violence.

This accepted doctrine is wise, and those who advocate legislative change to address the court’s recent ruling should proceed cautiously. We can sympathize with the homeowner faced with overly aggressive law enforcement, but the consequences of permitting a violent response are unacceptable.

It is a bad idea to tell citizens they may respond violently to an unlawful entry by an officer. Whether the entry is reasonable under the facts known to the officers will be judged by hindsight in a court sitting months after the event. Officers routinely arrive at homes where many if not all of the occupants are impaired by one or more substances.

And we cannot have confidence in the ability of ordinary citizens, impaired or not, to know the ins and outs of all the principles that allow warrantless entry. Even minor physical confrontations can erupt into serious injuries endangering both police and ordinary citizens.

Permitting citizens to make that ruling on the spot and respond with a gun or a fist to a perceived illegal entry is a formula for violence.•


Boehm is a retired Indiana Supreme Court justice who previously held senior corporate legal positions and helped launch amateur sports initiatives in Indianapolis. Send comments on this column to ibjedit@ibj.com.


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