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The Plight of Marco Sauceda and the Loss of Our Freedoms - Page 2 PDF Print E-mail
Commentary/Politics - Guest Commentaries
Written by John W. Whitehead   
Thursday, 28 July 2011 08:20

We are once again being subjected to broad search warrants, government agents trespassing on property without regard for the rights of owners and the blurring of all distinctions – for purposes of searches and seizures – between what is private and public property. Once again, the courts and state legislatures are seen to favor the interests of government officials, especially law enforcement, even if it comes at the expense of civil liberties. Indeed, there is no true justice in a court system where the judge, the prosecutor, and the police form a triad against the accused. And once again, Americans are finding themselves underrepresented, overtaxed, and forced at gunpoint, practically, to dance to the government’s tune. The similarities to pre-Revolutionary America are startling.

For example, since the time of the nation’s founding, Americans’ homes have been their most important physical possession. The colonists took to heart 18th Century British Prime Minister William Pitt’s sentiment: “Every man’s home is his castle.” The Third Amendment addressed the framers’ particular grievance with the Quartering Act of 1774, a policy that forced the colonists to provide accommodations for British troops in their homes at night while these same soldiers terrorized their towns by day. This constant invasion of the colonists’ privacy by the British soldiers was condemned in the Declaration of Independence and was ultimately outlawed by the Third Amendment.

People often question whether the Third Amendment, which says our homes are off limits to the military, is germane to our lives today. Although it is true that Americans’ homes have generally been safe from government agents since the Revolutionary War and the military may not threaten private property per se, the right to keep the government out of our homes is an important safeguard against government abuse. It also reinforces the principle that civilian authority is superior to the military and paramilitary police units such as SWAT teams.

Unfortunately, in May 2011, the Indiana Supreme Court broadly ruled in Barnes V. State that people don’t have the right to resist police officers who enter their homes illegally. The court rationalized its 3-2 ruling legitimizing any unlawful police entry into a home as a “public policy” decision. On its face, the case itself is relatively straightforward: An Indiana woman called 911 during an argument with her husband. When the police arrived, the man blocked and then shoved an officer who tried to enter his home without a warrant. Despite the fact that the wife told police her husband hadn’t hit her, the man was shocked with a stun gun and arrested. Insisting that it would be safer for all concerned to let police proceed even with an illegal action and sort it out later in court with a civil lawsuit, the court held that residents can’t resist police who enter their home – whatever the reason. The problem, of course, is that anything short of complete and utter acquiescence and compliance constitutes resistance. Thus, even the supposedly protected act of free speech – a simple “Wait, this is my home. What’s this about?” – constitutes resistance.

Added to that, recently the U.S. Supreme Court effectively decimated the Fourth Amendment in an 8-1 ruling in Kentucky V. King by giving police more leeway to smash down doors of homes or apartments without a warrant when in search of illegal drugs that they suspect might be destroyed if the Fourth Amendment requirement of a warrant were followed. In this particular case, police officers in pursuit of a suspect they had seen engage in a drug deal in a parking lot followed him into an apartment complex. Once there, the police followed the smell of burning marijuana to an apartment where, after knocking and announcing themselves, they promptly kicked the door in – allegedly on the pretext that evidence of drugs might be destroyed. Despite the fact that it turned out to be the wrong suspect, the wrong apartment, and a violation of every tenet that stands between us and a police state, the court sanctioned the warrantless raid, saying that police had acted lawfully and that was all that mattered. Yet as Justice Ruth Bader Ginsburg, the lone voice of dissent among the justices, remarked: “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?”

The Fourth Amendment, which provides that the people have a right to be secure in their persons and property against unreasonable searches and seizures, arose out of colonial experiences as well. It also states that valid warrants require “probable cause” and a particular description of the place to be searched and the persons or objects to be seized. Unfortunately, increasing numbers of state laws – including the one used to convict Marco Sauceda – make it illegal to resist a law-enforcement official in any way, leaving Americans virtually helpless in the face of a wrongful arrest and reliant on the courts to right the wrong. As to the need for probable cause in issuing warrants, that bar has been greatly lowered by a succession of court rulings to such an extent that there is virtually nothing to stop the police from entering one’s home based on the mere suspicion of wrongdoing.

As government invariably oversteps its authority, Americans are faced with the pressing need to maintain the Constitution’s checks against governmental power and abuse. After all, it was not idle rhetoric that prompted the framers of the Constitution to begin with the words “We the people.”

We must remember that our freedoms were created with extraordinary care and foresight, but they were not meant simply for the moment. Our precious liberties were to be passed on to our descendants indefinitely. As the preamble to the Constitution declares, the document was drafted to “secure the blessings of liberty to ourselves and our posterity.” Formally adopted on September 17, 1787, it has long served as the bulwark of American freedom. And we the citizens are entrusted as guardians of those freedoms. When we shirk that duty, we leave ourselves wide open for an authoritarian regime to rise to power, place restrictions on our freedoms, and usurp our right to govern ourselves.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute ( His book The Freedom Wars is available at, and he can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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