A Man’s Home is His Castle…

Much of the foundation of our nation’s laws has a basis in English law of the day.  For example, the saying “A man’s home is his castle” comes from a quote by Edward Coke in 1604 who stated, “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.”  The case where this came into play was Semayne’s Case, where it was ruled that the King could not, without just cause, search and/or seize private property, without the proper warrant(s) in place that detailed what property or persons were to be searched and/or seized.

Move forward, now, to 1754 when general warrants for seizure were often used to go into private homes for the purpose of inventorying the taxable items within the residence and collecting of taxes on those items.  In some events, liquor that had been consumed over the previous year by those living in the home had been accounted for by these warrants so as to force a double taxation on that liquor though it wasn’t even present at the time of the search.  These were called writs of assistance, and authorized the search of colonists’ homes and seizure of any “prohibited and unaccustomed goods.”

In 1760, King George II died, leaving all writs of assistance with an expiration date six months after the king’s death, unless specifically renewed by King George III.

In 1761, James Otis, representing some fifty merchants in protest over the writs, denounced such broad powers of search and seizure laws of the time.  He lost in court, but would later become an elected member of the Massachusetts colonial legislate, where he would successfully pass a law that allowed for special writs that “granted by any judge or justice of the peace upon information under oath by any officer of the customs” and barring general writs.

John Adams took interest in the proceedings and was present in the Otis hearings, viewing the events “as the spark in which originated the American Revolution.”  As such, Article XIV of the Massachusetts Declaration of the Rights, which was written by John Adams, cleared the way for the Fourth Amendment by defining that all searches and seizures in order to be lawful,  must be warranted only with probable cause and with specific details as to who and what was to be searched and/or seized.

Now, tie this in to what I said earlier about being lawfully responsible by mandating what and where you are searched, in regards to privately owned property.   I didn’t know about this until twelve years ago when a friend of mine on a big-city police department told me about it.  The conversation began when a mutual friend of ours had his apartment searched, unlawfully, after an original call about a loud party was made by a neighbor who was already not happy with Patrick, my friend.  The cops showed up and told Patrick that his party was too loud and that he needed to tone it down.  Patrick and a few buddies had their guitars out and were playing, but they agreed to be quieter.  The officer then asked to come into the apartment.  Patrick, not wanting to ruffle the cops and being generally cordial by nature, agreed.  The officer walked into the living room with Patrick and watched the others playing guitars for a few little bit and then he turned to the patio door.  The patio door was open and the person who had complained lived behind Patrick’s place.  The cop walked over, closed the patio door, stating that would probably help keep the neighbor from being cranky, laughed, and then began opening drawers in the coffee table and moving things around. Upon doing so, he found a baggie of marijuana.  Immediately, the cop’s demeanor changed from mild curiosity that a few guitar-playing college kids could be so loud to a drug bust intensity event.

I won’t go into all of the things that transpired but, in the end, Patrick and everyone there was cleared of all charges.  Why?  Because the cop had no right to start searching.  First of all, the complaint was for excessive noise (it was still early in the evening, so even if he and his buddies were being excessively loud, the neighbor can’t complain with any validity until the apartment noise ordnance took effect at 9:30 PM).  Second, the cop had no legal reason to search, much less without asking to search, and without stating that he would search the premises.  Even though Patrick had an illegal substance in the residence, he could not be brought to trial or even charged with it because the offending article was unlawfully found during an illegal search and seizure by the cop.  The whirlwind of activity that ensued as a result of the find that evening included two days of jail time while trying to find a legal reason to charge Patrick with possession, was all reimbursed by the city in a nice chunk of change.  The cop also had to apologize for the duress he had put Patrick and his family under.  The court did not give back the weed, but they could not prosecute because he had it.

The cops’ buddy, who is also a friend of mine, said that Patrick did not have to let the guy in.  He had served his office by telling Patrick to quiet down, Patrick had agreed to do so, and that was that.  Patrick, now the wiser for wear, does not let cops into his house to this day.  Perhaps it’s because he doesn’t want to have to go through the likes of what he went through on that uncomfortable day a while back.  I know that he hasn’t changed his recreational habits, so perhaps that is why.  Or, perhaps, it’s just because he doesn’t trust cops anymore.  I know my cop friend isn’t welcome over there.

Anyway, what I’m getting at here is this.  Unless you have murdered somebody in your home, you show up to the door with the murder weapon in hand, or the cop at the door can see the results of your deed, he is not automatically allowed to enter.  I know that’s an extreme example, but you get what I mean.  STOP LETTING GOVERNMENT OFFICIALS USE THE LAW TO THEIR ADVANTAGE BECAUSE YOU DON’T KNOW WHAT THE LAW ALLOWS.  Yes, be a “barracks lawyer”, if that’s how you want to see it.  I call it being informed.  The more you know, the less you can be bullied about by strong-arm tactics designed to intimidate the average citizen into self-incrimination.

“Knowing is half the battle.”  -G.I. Joe

~ by kyodan75 on May 23, 2010.

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