Before the Supreme Court’s decision in Whren, police were constrained to lie about the reason for stopping a car they wanted to search for drugs. But the Court broke through the floor, allowing police to be honest about their dishonesty. When it comes to interrogation, the law has long been clear that lying is a very effective tool of law enforcement. The law protects lies.
This shocks many people. Aren’t the police supposed to be paragons of virtue, the embodiment of truth, justice and the American way? Well, one out of three ain’t bad. The reality is that it’s a lot easier to get people, in all senses of the word “get,” with a well-formed lie than it is with hard work and conformance to the rule of law. If we just tweak the rule of law to meet the efficacy of lying, combined with trusting that our police would never take advantage of it, problem solved.
So when the only thing that stood between Robin Harper and arrest was the screen door of her home, it was more than the police could stand. From RTV6 in Indianapolis:
Harper denied police entry to her home, but the court said an officer then lied to Harper by telling her she had to sign a form. Once inside, the officers handcuffed her and forcibly removed her wedding ring, citing jail procedure.
Harper was arrested for domestic abuse of her husband, The cops were used to visiting the Harper home, as they had a rocky relationship. They came this time at Robin Harper’s call, as a shoving match followed their screaming. When they caught up with the husband, Christian, they realized that he might have gotten the worst end of the dispute. From the opinion of the Indiana Court of Appeals:
Officers Gillespie and Hartman…observed that he had two small scratches on his head, a swollen left eye, and what appeared to be a small puncture wound in his abdomen. Christian told the officers that Harper had attacked him with scissors and had struck him multiple times with her fist.
Back they went to Robin’s home, where this time she refused to come outside. Instead, she stood behind the screen door to speak with police and expressly refused them entry. In the absence of a warrant for her arrest, Payton v. New York says that the one thing the cops cannot do is cross the threshold of a person’s home to take them into custody, unless they are allowed inside or there are exigent circumstances (such as hot pursuit).
Officer Gillespie explained his swift move:
She was reluctant to come to the door, but she did come to the door, spoke to us through the door and then opened it so that the screen door was still there and closed. We asked if she could step outside to talk to us. She said that she did not want to go outside due to the fact that it was cold. At that point in time we asked if we could step inside to speak with her and she said that we didn’t need to come inside. . . . [I]n order to get a hold of Miss Harper, I then asked her if she would sign a document for a protective order, to start some kind of protective order paperwork. At which time she opened the screen door and we stepped in to affect [sic] an arrest.
At the trial level, the judge sloughed off the Payton violation. After all, it’s not like she didn’t deserve to be arrested anyway. But the appellate court opinion questions the simple equation.
In emergencies, law enforcement officers are often called upon to make split second judgments as they do the dangerous work of protecting us all, judgments that we in a civil society endeavor to support as much as possible. But when, without any exigent circumstances, and after being denied consensual entry, a law enforcement officer lies to gain entry into someone’s home, is that officer “. . . lawfully engaged in the execution of the officer’s duties . . .” so as to justify the arrest of the owner or renter of the home and to charge her with the crime of resisting law enforcement?
What’s curious is that Harper was not prosecuted for the domestic assault on her husband, the one where the scissors punctured his abdomen, but for resisting the officers’ seizure after she figured out that they really weren’t there to get her to sign a form. The decision held that the cops, by having lied their way into her home, were not “lawfully engaged” in the execution of their duties.
While the court comes as near as a court can in its conclusion, nowhere does it address the core wrong here, that the police violated Robin Harper’s constitutional rights to gaining entry into her home by a lie.
In the case before us, Harper never abandoned the privacy interest in her home. She simply opened her front, prime door to answer Officer Gillespie’s knock, and after she did so, she stood behind the closed screen door to speak with him. Harper never crossed the threshold of her residence onto her stoop or porch. In addition, Harper expressly denied the officers entry to her home, and rather than obtain a standard warrant for her arrest, Officer Gillespie chose to use fraud to enter the residence to arrest her.
While it may be accurate that Harper’s prosecution for resisting arrest by an officer who was unlawfully in a position to arrest her mandates vacating her conviction, what if she hadn’t resisted, but been arrested for the battery of her husband? What if they lied their way in and decided not to arrest her at all? Would that have reduced he lie, the entry into her home, to a trivial constitutional detail?
While the outcome was correct, the court’s rationale was unsatisfying. By lying their way into Harper’s home, the police flagrantly violated the Constitution. She did not consent to their entry, but was tricked into allowing them to enter. When entry is gained by a ruse, it is not knowing, intelligent and voluntary, as required for consent, but the verbal equivalent of smashing down her door and forcing their way in. Regardless of what she was arrested for, resisting or battery, they violated her constitutional rights when they crossed the threshold.
This was a lie too far. Much as the lies of the law fly in the face of our naïve expectations of legitimacy of law enforcement, and run contrary to the ideal that the police are supposed to be honest, the good guys, when dealing with the public, at least call this lie out for what it is, and then there would be no need to strain the law to explain why lies to circumvent the Constitution are impermissible.
H/T Radley Balko