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PostPosted: Mon Oct 06, 2003 5:29 pm 

Joined: Mon Nov 20, 2000 6:01 am
Posts: 493
Location: Framingham, MA USA
Subject: Can you resist an unwarranted police entry into your residence that is later to be determined to be unlawful, or is the right forcibly to resist police limited by the rule of Commonwealth of Massachusetts v. Moreira, 388 Mass. 508 (1983) to resistance against, excessive or unnecessary force upon your person by police?

The warrantless arrest was made on suspicion by police that the residence was involved in a breaking and entering.

The court decided that absent the use of excessive or unnecessary force by police upon his person, and individual may not forcibly resist seven an unlawful entry into his residence by one who he knows or who has good reason to believes is a police officer engaged in the performance of his duties.

The court went on to state “ We follow numerous other jurisdictions that prohibit a defendant from invoking the exclusionary rule to suppress evidence of his own unlawful conduct in response to police actions in violation of constitutional protection against unlawful search and seizure…

The police did not burst through a closed door unannounced in the dead of the night. Although Officer Coynes actions were neither conscience shocking nor egregious …Nor did they warrant dismissal of criminal charges resulting from the subsequent physical resistance to police by defendant x y and z , and other codefendants.

The remedy for all but the most egregious Fourth Amendment or art. 14 violations is suppression of the evidence and its fruits, not dismissal of the resulting charges….

We leave to another day the determination whether the circumstances under which the entry occurs might be so provocative outrageous as to preclude imposition of a criminal penalty for resistance We agree with those jurisdictions that limit the right to resist police forcibly to situations where force is used against the person, rather than against the property or to effect an entry.

One judge, although he concurred with the opinion, announced that he believed that this case should not prevent jury assessment of what is reasonable or unreasonable in a lawless entry such as closing the door in the face of the police to much better define what action of the defendant and under what conditions were permissive for the defendant. He wanted the grounds to be narrowed which this decision did not do.

In this case the court said that the defendant had no right to resist and therefore concluded that defendants convictions would not be overturned.

The Supreme Court of the United States (SCOTUS) has several cases involving search and seizures in cases where the driver or other defendant was in or out of the vehicle and warrantless searches were made, to the person and/or to the vehicle.

It will be interesting to see, between now, where SCOTUS has just opened for the current term and until the close of the term, which cases will be accepted.

Alan K

"The Goddess of Justice is Blind"

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