Gone Fishing in Indiana

(This post is in response to comments left at Hitpiece Interview Targets Newton Co, IN, Sheriff Hartman; for additional background, see also Sheriff Hartman Controversy Update.)

The reason I did not want to debate the Constitutionality of probable cause and hot pursuit was not to end the discussion. Indeed, I expected that, if the discussion continued, I would learn something, and sure enough, I have. My point is this: probable cause and hot pursuit are not random.

I reiterate that there are law enforcement personnel who abuse their power; police power is easy to abuse.

However, random searches are not an abuse of lawfully-derived police power; they are unconstitutional from the start, a police power that is not lawfully-derived, but which is rather the very thing our Constitution is intended to defend us from.

Sheriff Hartman has stated he will not do random searches. I believe him. As any other law enforcement officer, he has the opportunity to abuse his power, to say he saw or suspected something, and to do a search which from a Godseye view would be random, but which he could deceitfully defend in court. This is not the issue here. The issue here is blatantly going down a street where no criminal activity is believed to be occurring, and searching houses anyway, to see if something can be dug up - a random search; goin' fishin' - under the authority of a state supreme court ruling which some claim can be interpreted to mean that such blatantly unconstitutional conduct is in fact Constitutional. I have seen no evidence to suggest that such blatantly unlawful conduct would be anything but repugnant to Sheriff Hartman, or that he would do anything other than arrest the law enforcement officers who attempted it.

Your basic premise, however, seems to be not whether probable cause authority was exceeded, but rather that probable cause itself is unconstitutional, and is itself the problem. For example, you stated:

There's only one clear understanding of the fourth amendment. The discretion of probable cause is forbidden to anyone but judges and grand juries. No warrant = no search, seizure, or arrest.

This is erroneous.

The Fourth Amendment reads as follows:

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.

The Fourth Amendment offers us protection against unreasonable searches and seizures, and then states that warrants shall be issued upon probable cause.

However, certain searches and seizures, limited in scope and under exigent circumstances, have been allowed as being reasonable even despite the absence of a warrant which was deemed unobtainable due to the exigency.

For example, in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court opinion stated that "the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct"; thus, "its major thrust is a deterrent one ... and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that, without it, the constitutional guarantee against unreasonable searches and seizures would be a mere 'form of words.'"

This, to me, seems to argue in favor of what I hope would be obvious: random searches of homes are a gross violation of civil rights, and evidence seized thereby is not admissible in court. Furthermore, I feel this is an argument against the "scope-and-grope" and "pornoscanning" that now routinely accompany efforts to travel by air in the US. However, if the intent of such a search is not to secure admissible evidence for a criminal prosecution, but merely to intimidate the people, then such unconstitutional conduct does indeed serve the interests of those in power; this situation would have to be addressed in a different and more comprehensive manner other than using the exclusionary rule in a criminal case.

The court went on to say:

Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary, and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.

The court upheld that even something portrayed as outside the bounds of the Fourth Amendment, such as a "stop-and-frisk", is indeed a Fourth Amendment seizure and an act that subjects the person to more than a "petty indignity" and went on to say:

We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure ... But we deal here with an entire rubric of police conduct -- necessarily swift action predicated upon the on-the-spot observations of the officer on the beat -- which historically has not been, and, as a practical matter, could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.

After pointing out the necessity to use a balance of the need to search against the invasion it would entail as the only ready test for reasonableness of a search or seizure, the court held that

in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that, at some point, the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And, in making that assessment, it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate?"

The court also cautioned that "[a]nything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction."

(Please see the Terry v. Ohio, 392 U.S. 1 (1968) for links and footnotes which I omitted in my quotes.)

The difference is probable cause versus random searches and seizures.

The Supreme Court has upheld, and I agree in principle, that probable cause is not unreasonable, provided it meets certain criteria.

The incendiary allegation against Sheriff Hartman is that he is ready to use random house-to-house searches with essentially no legitimate reason. He has denied this, and I believe him.

In the wake of that Indiana Supreme Court ruling, someone did indeed go fishing in Newton County, Indiana - and it was not the county sheriff!

Sheriff Hartman Controversy Update

From my perspective, this is hilarious.

For those of you who find this less than amusing, please accept my apologies - they are sincere.

My information shows that hits on my previous article regarding the controversy around Sheriff Hartman and some comments he allegedly made are coming from a discussion topic at the Free Republic.

There, they identify the internet journalist who quoted Sheriff Hartman as one Allison Bricker. Later on, the comments regarding Bricker become rather insulting.

Previously, I did not know (and really didn't care) how this polemic got started. But, at that point, things became quite humorous, as I now find myself defending Bricker.

When I posted a link to my previous article at the page at Facebook calling for the removal of Sheriff Hartman, one of the commentators had this to say regarding the link (included in the image is my response to a previous commentator, and then to this one):

It was the author herself who questioned my post on this topic. No wonder she did not agree with my methodology (which I had characterized as a "cursory investigation")!

The original article appeared at The Smoking Argus Daily - to which I now link in my sidebar.

The question came up as to why Bricker had not recorded the conversation; her response was:

Truth be told, I am writer by choice as my oratory skills are usually lost in my indignant exuberance for liberty.

Thus, coupled along with the fact that I cannot stand to hear myself recorded I will most likely stick with :Attribution.

Dare I suggest that both Bricker and Sheriff Hartman were caught a little off-guard during that conversation, and so what one heard was not exactly what the other was saying? Perhaps the question was not understood the same way it was asked, and perhaps the answer was not understood the same way it was intended.

It appears Bricker was (justifiably and thankfully!) concerned about the Indiana Supreme Court ruling. Perhaps her "indignant exuberance for liberty" garbled the answer she was hearing, which may not have been communicated as clearly as intended to begin with.

Depending on where you look online, there are discussions of lawsuits against Bricker for "slander".

Her defense against any accusation of libel is easy: Sheriff Hartman is an elected government official, and this polemic goes to the heart of speech that is protected by the First Amendment. To have a case against her, reckless disregard for the truth would have to be proven, and that is not going to happen in Amerika. (If this were the UK, she could be in deep trouble! But, thanks to Rachel Ehrenfeld, we now have some protection against application of foreign libel laws in the US.)

I intend to follow Bricker's work, as she seems to share some of my concerns about how this country is developing. I appreciate that she calls local officials for their comments regarding important matters, and what impact those matters will have on government. Hopefully, she can get those comments in writing, or learn to appreciate hearing her own voice asking such important questions in order to record the answers.

I expect Sheriff Hartman would be among the first to defend Bricker's concern for this country, even if he might suggest a better documentation process to support her future work.

I am convinced this was a misunderstanding.

Now, back to the real issue at hand: the Indiana Supreme Court's ruling is of grave concern, and it seems to be part of a trend in this country lately.

Hitpiece Interview Targets Newton Co, IN, Sheriff Hartman

I was checking out a website, Oath Keepers, and came across a link I found there: Indiana Sheriff: If We Need to Conduct RANDOM HOUSE to HOUSE Searches We Will. I posted the link to Facebook - one of many links I post.

Today, I did an internet search on this controversy, which I see is growing.

Almost all the links that turn up are to alternative media sites spreading this notion that Sheriff Don Hartman Sr., of rural Newton County, Indiana, wants to conduct warrantless house-to-house searches, and that he feels a recent Indiana Supreme Court ruling allows for this.

The allegation is spreading fast that Sheriff Hartman believes this; there is even a page on Facebook calling for Sheriff Hartman's removal: Remove Newton County Sheriff Don Hartman Sr.

However, it seems the allegation is being taken at face value, and is not being investigated. A cursory investigation yields substantial reason to suspect that Sheriff Hartman was (perhaps inadvertently) ambushed by a (perhaps overzealous) reporter.

First, the ruling in RICHARD L. BARNES v. STATE OF INDIANA summarizes:

A jury convicted Richard Barnes of Class A misdemeanor battery on a law enforcement officer, Class A misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. Barnes contests that the trial court's failure to advise the jury on the right to reasonably resist unlawful entry by police officers constituted reversible error and that the evidence was insufficient to sustain his convictions. We hold that there is no right to reasonably resist unlawful entry by police officers. We further hold that the evidence was sufficient and affirm Barnes's convictions.

The court ruling held "that there is no right to reasonably resist unlawful entry by police officers."

This is having explosive ramifications, and explosions can be quite indiscriminate in the damage they do, as is the case with damage being done to the reputation of Sheriff Hartman.

The Newton County Sheriff's Office has a website; the explanation of what happened can be found there:

On May 16, 2011, I was contacted by a reporter of an internet radio station. Her question concerned a recent Indiana Supreme Court decision, allowing police officers to make random warrantless searches. I advised her that I was not clear on that particular ruling; she then asked how the Sheriff's Office conducted searches of residences. I informed her that searches were only conducted with a warrant, probable cause or when an officer is in hot pursuit. When questioned about the Supreme Court ruling, I advised her that as police officers, we enforce those laws set forth by our legislative branch. This reporter then asked about the violation of Constitutional Rights. This State Supreme Court ruling in my opinion cannot override our U.S. Constitutional Rights and I'm sure this state ruling will be revisited.

When I was asked about my thoughts on random searches and how people would react, I gave her the scenario of looking for a criminal or escapee. I advised her that if people were aware of this situation, they would gladly let you search a detached garage, outbuilding, etc., if it meant keeping them safe, but this would only be after securing permission.

This court ruling is just open for lawsuits if a police officer would attempt a random search without due cause. Somewhere in this conversation things were definitely taken out of context. I'm now quoted as saying the Sheriff's Office will be conducting random house to house searches.

I want the citizens of Newton County to rest assured that no member of the Newton County Sheriff's Office will enter the property of another person without first having a warrant or probable cause to do so. I strongly stand behind my oath to uphold the Constitution of the United States of America, as well as that of the State of Indiana.

Sheriff Donald E. Hartman, Sr.

I do not know who the reporter was that started this, but this whole thing has a peculiar smell to it.

What I think happened is this:

- The Indiana Supreme Court made a bad call, looking perhaps at the peculiarities of one case, and perhaps not thinking enough about the broader ramifications. I agree with Sheriff Hartman that this ruling will be revisited.

- It appears Sheriff Hartman received a call from a reporter, and wanted to do the right thing by taking the call and trying to answer the questions; communication between law enforcement and the public is a good thing, even if it is occasionally misconstrued.

- I am assuming the ambush question was not deliberately misleading, but rather, that the internet reporter was, perhaps, some kind of citizen-journalist whose enthusiasm outweighs her skill and judgment. Perhaps her report itself was taken out of context?

Regardless of how it played out, the information on the internet is turning out to be a giant hitpiece.

Sheriff Hartman's position is correct: In the circumstances where there was a fugitive (perhaps from Chicago, parts of which are an hour's drive or so away from Newton County) believed to be in the area, many people, if asked by sheriff's deputies for permission to search some of their rural property, might gladly give the deputies permission to do so; no warrant would be necessary.

Sheriff Hartman and his deputies have taken an oath to uphold the laws, the most important of which is the United States Constitution; I see no reason to suspect they will fail to uphold that oath to the best of their ability.

If we were in Newton County, and our lives were in danger, Sheriff Hartman and his deputies would hurry in, risking their lives as necessary, to save us. If we were in Newton County, and our civil rights were being trampled upon, Sheriff Hartman and his deputies would defend our civil rights, risking their lives if necessary - even if they disagreed with what we were saying; even if we were falsely accusing them of seeking to infringe those rights.

Do we owe them nothing in return?

If you want to support law enforcement, you can start by giving Sheriff Hartman the benefit of the doubt on this one.

__________

Afternoon update on this story.