Third Party & Independents Archives

Divided Supreme Court Weakens 'Exclusionary Rule'

Yesterday the Supreme Court announced their decision in Hudson v. Michigan, a high-profile case that was reargued after the retirement of Sandra Day O’Connor to presumably break a 4-4 tie without her vote. New Justice Samuel Alito joined the conservatives in a 5-4 ruling to side with law enforcement officers who improperly entered the home of Booker Hudson by not appropriately “announcing their presence” even though they had a search warrant to enter the premises.

Traditionally, police knock on the door and wait approximately 15-20 seconds before serving a warrant on a suspect. In this case police did not knock and waited between three and five seconds before entering Hudson's home - not giving Hudson enough time to hide (or use) his loaded gun and dispose of his cocaine rocks.

The opinion of the court, written by Justice Antonin Scalia, does not give police a free pass to conduct business as they wish or shield them from disciplinary action or civil suits, but instead says that evidence found by police officers who enter a home to execute a search warrant without first following the requirement to "knock and announce" can be used at trial.

Before yesterday's ruling, evidence inappropriately collected could be excluded by a trial judge as part of the "exclusionary rule" established in the 1961 landmark case Mapp v. Ohio.

In his opinion joined by new Chief Justice John Roberts, new Justice Samuel Alito, and Justices Clarence Thomas and Anthony M. Kennedy, Scalia argued that the evidence was going to be found anyway, which is the point of serving a warrant in the first place. "The cost of entering this lottery would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card."

Moderate-to-conservative Justice Anthony Kennedy joined in most of the ruling but came short of wanting to end the knock requirement. "It bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry," he said. He also noted that legislatures can intervene if police officers do not "act competently and lawfully."

Justice Stephen G. Breyer, writing for the dissenters, said the ruling "weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection." He said the majority's reasoning boiled down to: "The requirement is fine, indeed, a serious matter, just don't enforce it." He was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

I support the majority's opinion because it rightfully weakens the "exclusionary rule" that at one point in history may have been necessary to combat corrupt police who subjected innocent people to a sub-par judicial system.

In today's time the "exclusionary rule" does more to help the bad guys than anything else because crucial evidence needed to convict might not make it to trial if not collected exactly by the books. In the case of Booker Hudson, had the liberal justices got their way and the "exclusionary rule" applied, the seized weapon (which was loaded) and rocks of cocaine would not have been admissible, and Hudson would have likely been set free had there not been other charges pending.

Scalia argued that the evidence was "going to be found anyway," but that's simply the best-case scenario. Had the cops waited an additional 30 seconds as the liberal justices would have preferred, the evidence could have easily been flushed down the toilet and the suspect could have used the extra time to reach his gun and assault the serving officers.

Alas, in the debate over civil rights and police procedure, officer safety is often downplayed, as it has been in this case. To be sure, we must not forget that all persons are innocent until proven guilty, but that's for the courts to decide. If police find a dead body, it should be admitted into evidence whether it was found legitimately or not.

Many court watchers see Hudson v. Michigan as a sign of a Supreme Court that has become more conservative with the addition of two new justices last term. When it was first argued before she retired, Justice O'Connor sounded ready to side with the defendant.

But from an originalist approach the majority got it write. The Fourth Amendment of the U.S. Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nowhere is a timetable established to define "unreasonable." As long as police have a warrant -- and they did here -- there's no violation. Nowhere are police instructed to knock first. That the Supreme Court still upholds the basic "knock first" principle is a victory for all sides.

Posted by Scottie at June 16, 2006 9:15 PM
Comments
Comment #158558

Scottie, thank you for writing this article. If you hadn’t, I would have. This is very, very serious business. The Sup. Ct. just gave carte blanche to police authority across this nation to stretch the laws and indeed break them in order to obtain evidence to convict someone, in some cases, anyone, to keep their public image of making our communities appear safe in ship shape, especially around election time.

The Colonialists fought the British on this most provocative of practices of entering people’s homes without leave. Appears we are coming full circle, but instead of the British being the bad guys, its the Republicans justifying power over its own citizens in whatever ways they find expedient.

Like our colonialist forefathers with muskets, it is important that we citizens today stay practiced with our firearms, and versed in the methods of putting down authoritarian regimes which view citizen rights as a nuisance to be done away with dispatch.

Posted by: David R. Remer at June 16, 2006 10:34 PM
Comment #158560

Scottie:

I’d have to agree with you. If the police have a warrant that is legally based on probable cause, then there is nothing in the Constitution that says they must wait outside the door, allowing the alleged criminal to do as they please.

If 15-20 seconds is the norm for the wait, why not make it 60 seconds. Why not 30 seconds. Why not 30 minutes. These are all just numbers—time frames—that can be seen as reasonable or unreasonable.

If I’m a cop and I have reason to question that the person inside the home might have a weapon, I’d prefer not to give them time to find it, cock it, and aim it before I take action.

As long as the warrant is present, law enforcement has met their committment to justice.

Posted by: joebagodonuts at June 16, 2006 10:45 PM
Comment #158567

And how long before a Warrant is waived aside?

“As long as the evidence is found, law enforcement has met their committment to justice.”

FYI… the Government can already spy on you without a warrant. NSA anybody?

Posted by: Aldous at June 17, 2006 12:11 AM
Comment #158576

Anyone breaking down my door unannounced is liable to get the business end of my .38 For their own safety if nothing else the cops should at least identify themselves before kicking a door in. While there are criminals that will shoot a cop just as fast as they would someone else or faster, there’s also a lot that won’t. But they will shoot someone kicking in their door unannounced.
I know if I was a cop that I wouldn’t want to have to wait 15 seconds after announcing myself before entering a place that might have guns in it. Like I said there are those that will shoot a cop in a heartbeat.

Posted by: Ron Brown at June 17, 2006 12:40 AM
Comment #158666

Wondering what the result would be if there had been no cocaine nor firearm?

Posted by: womanmarine at June 17, 2006 3:47 AM
Comment #158681

JBOD, the Supreme Court already ruled many years ago that police MUST abide by the law which requires they knock first. Congress makes the laws, and that law is still on the books and the S.C. upheld it. Today, the new Conservative S.C. said “if the police don’t knock, violating the law themselves, any evidence found is still admissable.”

So, in light of these facts, do you still back the S.C. saying there should be no consequences for police power when it breaks the law, that is reserved for the rest of us? Until now, the huge and primary incentive police had to follow the laws regarding search and seizure was that the evidence would be INadmissable if illegally obtained. The S.C. ruling now says such evidence illegally obtained is admissable.

Your conservative slip is showing - follow party line - screw the law.

Posted by: David R. Remer at June 17, 2006 7:38 AM
Comment #159144

David,

The case that established the knock and announce rules didn’t actually say that the police had to announce in every case. It also did not make any judgements to the final outcome of the case but remanded to the lower courts to decide if their was a reason that the police should not have had to announce their presence.

http://www.law.cornell.edu/supct/html/94-5707.ZO.html

It appears that the SC has just extended that ruling to say that it will not be cause for exclusion of evidence.

While I’m not completely decided on how I would have ruled if it were me in a robe, I think your interpretation of the knock and announce decision rendered in 1995 actually implies. They did not explicitly make a violation subject to the exclusionary rule.

Also, it may be worth a look at the facts in this case. The court did throw out most of the evidence on other grounds. The police did announce but did not knock. They waited only 5 seconds instead of the “customary” 15. I can’t find any reference to the 15 second rule so this seems to have developed out of custom rather than law.

Posted by: Rob at June 19, 2006 2:06 PM
Comment #159146

Sorry,

Interpretation is broader than the decision implied. Should have proofed.

Posted by: Rob at June 19, 2006 2:07 PM
Comment #381155

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