Home insecurity: two privacy cases hit us where we live.

• Author: Sullum, Jacob
• Position: Columns - Column

A YEW YEARS AGO, two police officers were chasing a suspected crack dealer at an apartment complex in Lexington, Kentucky, 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. In May 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 unlawful search can challenge it in court after the fact, three of the five justices agreed, "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...