TWO PRIVACY RULINGS HIT US RIGHT WHERE WE LIVE

A few years ago, two police officers were chasing a crack dealer at a
Lexington, Ky., apartment complex when they lost sight of him as he
ducked into one of two units at the end of a breezeway. Detecting "a
very strong odor of burnt marijuana" coming from the apartment on the
left, they figured that must be the one, so they banged on the door
and shouted, "Police!" Hearing "the sound of persons moving," the
officers later reported, they feared evidence was being destroyed, so
they kicked in the door.

It turned out to be the wrong apartment, but inside the cops
discovered a guest smoking pot and, during a "protective sweep" of the
apartment, saw marijuana and cocaine powder "in plain view." A more
thorough search turned up crack, cash and drug paraphernalia.

So much for the alleged destruction of evidence. So much, too, for the
doctrine that a man's home is his castle, not to be forcibly entered
by government agents on a whim or a hunch. Last week, the U.S. Supreme
Court said the "exigent circumstances" that exist when someone might
be flushing drugs down a toilet allow police to enter a home without a
warrant, even if their own actions create those circumstances.

As the lone dissenting justice, Ruth Bader Ginsburg, noted, this
decision "arms the police with a way routinely to dishonor the Fourth
Amendment's warrant requirement in drug cases." Instead of "presenting
their evidence to a neutral magistrate," they can retroactively
validate their decision to break into someone's home by claiming they
smelled something funny and heard something suspicious.

While the U.S. Supreme Court said police may force their way into a
home to prevent the destruction of evidence, the Indiana Supreme
Court, in a less-noticed decision issued the week before, said police
may force their way into a home for any reason or no reason at all.
Although the victim of an illegal search can challenge it in court
after the fact, three of the five justices agreed that "there is no
right to reasonably resist unlawful entry by police officers." They
thereby nullified a principle of common law that is centuries old,
arguably dating back to the Magna Carta.

The case involved Richard Barnes, whose wife called 911 in November
2007 to report that he was throwing things around their apartment.
When police encountered Barnes outside, he shouted that they were not
needed because he was in the process of moving out. His wife emerged,
threw a duffle bag in his direction and told him to collect the rest
of his belongings. When two officers tried to follow the couple back
into the apartment, Barnes blocked the way, while his wife said "don't
do this" and "just let them in." Barnes shoved one officer against a
wall, and a scuffle ensued.

After he was convicted of battery on a police officer, resisting law
enforcement, and disorderly conduct, Barnes appealed, arguing that the
jury should have been instructed about "the right of a citizen to
reasonably resist unlawful entry into the citizen's home." The Indiana
Supreme Court could have ruled that the officers' entry into the
apartment was lawful given the possibility of violence, especially
since Barnes' wife had called 911 and arguably invited them in. The
majority suggested as much but inexplicably decided a far broader
question. "Because we decline to recognize the right to reasonably
resist an unlawful police entry," the court said, "we need not decide
the legality of the officers' entry into Barnes's apartment."

This backward approach suggests the justices were eager to repudiate a
straightforward extension of self-defense that struck them as an
outmoded impediment to law enforcement. Like the "sniff, knock, listen
and kick" rule endorsed by the U.S. Supreme Court, the decision
illustrates the steady erosion of security in the name of security,
even in the setting where our right to be left alone is supposed to be
strongest.