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Hudson v. Michigan and Remedies in Complex Systems:
Gina Holland has a report on the oral argument this morning in an interesting Fourth Amendment case, Hudson v. Michigan. The case considers the scope of a suppression remedy for a police officer's failure to follow the "knock and announce" requirements that the Supreme Court has recently held are required by the Fourth Amendment when the police execute a warrant. For a summary of the case, see this helpful post from SCOTUSblog.

  I haven't followed Hudson closely enough to have specific views of it, but the case does bring up some of the broader dynamics of Fourth Amendment law that may be worthy of more general rumination. Specifically, I think Hudson illustrates some of the difficulties inherent in devising a remedy in complex systems. Here's my thinking. Imagine you're a Justice who really values the knock-and-announce rule and wants to make sure the police follow it. Your instinct will be to impose a strict requirement, such that slight deviations from the rule lead to suppression of the evidence obtained. Your thinking will be that a strong remedy means that the rule will be followed. Greater judicial scrutiny will bring greater compliance with the rule.

  Perhaps, but perhaps not. The problem is that the knock-and-announce rule has to coexist with all the other rules that govern searches, and any one rule may end up exerting an unintended hydraulic effect on police behavior. Consider how the knock-and-announce remedy will coexist with the longstanding Fourth Amendment preference for warrants. As precedents like Illinois v. Gates suggest, the Supreme Court has generally tried to encourage warrants by providing less post-indictment judicial review of searches pursuant to warrants than warrantless searches. The idea is to give police officers an incentive to get warrants: Officers know that the chances their searches will be upheld are much greater if they get warrants, so they'll get warrants more often.

  A tough knock-and-announce rule may threaten that preference, because the knock-and-annouce rule does not apply at all to warrantless searches. As a result, the greater the judicial scrutiny on the knock-and-announce rule, the more the police will look for alternatives to warrants. At the margins, at least, ratcheting up the protections of the knock-and-announce rule may have the unintended consequence of lessening judicial oversight by encouraging more warrantless searches. As a result, crafting the remedy for knock-and-announce violations is much harder than just picking the value to be served; to have the desired effect, the remedy has to fit within the regime of preexisting legal rules.
Bruce:
So a strong knock-and-announce rule could produce warrant turbulence? Interesting.
1.9.2006 6:46pm
LTEC (mail) (www):
The idea of disallowing evidence no matter how legitimate, of a crime no matter how terrible, as a remedy for an incorrect police action no matter how trivial, is absurd. Just about anything else would be better, for example executing the policeman's first born. At least the policeman would be directly harmed and only one innocent person would suffer.

Why are such things being decided by the courts, rather than our legislators?
1.9.2006 7:22pm
Anderson (mail) (www):
Interesting post. We don't like to think about judges' fashioning such "legislative" policies, but I'm not sure there's a better way.

(I take it as obvious that legislatures will be so reluctant to "protect the criminals" that they are not terribly desirable guardians of our rights.)
1.9.2006 8:20pm
Wintermute (www):
Extending a knock-and-announce requirement to warrantless searches where it would make sense, as I suppose in exigent circumstances cases not exactly involving murder in progress, is prefereable to using this argument against prohylaxis against intrusions that too often result in people, many police among them, getting shot as home invasion robbers/burglars by frightened residents. We just had one of those here, where a cop got shot around his vest and killed in a drug raid. The jury believed the other cops who swore they announced, but that did not resurrect the officer. This prophylaxis would also improve the atmosphere in many cases of wrong address drug raids where the government ends up sued successfully because of gung-ho damage to property and innocent people.
1.9.2006 8:54pm
AppSocREs (mail):
For over 100 years the Republic did quite well without an evidence exclusion principle. It is my understanding that currently only two countries in the world -- the USA and the Phillipines -- have an evidence exclusion principle like that originally devised by Chief Justice Holmes and which we see being applied here. Holmes's original intent was to reduce police misconduct by excluding improperly obtained evidence. I don't think there's any evidence that his principle has had that effect. Certainly I do not think there is any less police misconduct in the US and the Phillipines than in the many Common Law countries that do quite well without this principle.

Instead precedent has so complicated the principle inn this country that we see cases being reveresed and re-reversed all the way up the appelate chain. Clearly judges, the police, and the public are all confused. The only parties that are clearly advantaged are criminals and defense attorneys. Innocent victims of improperly conducted searches with a valid warrant generally have little recourse. Maybe it's time to rethink the whole principle even if this means going against nearly a century of precedent. I expect Holmes would never have ennunciated the principle if he could have foreseen the ridiculous extremes to which the inertia of precedent has driven it.
1.9.2006 9:38pm
Bruce Wilder (www):
The first result on Google of "evidence exclusion" is this paper on British law:
http://webjcli.ncl.ac.uk/articles3/stone3.html
1.9.2006 10:16pm
byomtov (mail):
For over 100 years the Republic did quite well without an evidence exclusion principle.

Sounds nice, but since we are speaking of evidence, perhaps you could supply some as to the harm or lack thereof done by free-wheeling police procedures "for over 100 years."
1.9.2006 10:26pm
John Jenkins (mail):
Actually, exclusionary rule precedent isn't that hard. It's like this: get a warrant or find an exclusion. For cops it comes down to: get a warrant.

The biggest problem is the Rambo-fantasy that a lot of cops have who, instead of peacefully arresting someone as he leaves his house or somewhere else decide to bust in like SpecOps guys in the middle of the night. Revert to daytime warrants and all this silly shit will stop.
1.9.2006 10:44pm
minnie:
I agree with Wintermute and John Jenkins. Get a warrant. What's the big deal? That also stops all these cases where valuable evidence is excluded and society suffers. Just get a warrant, and that will stop.
1.10.2006 1:19am
18 USC 1030 (mail):
I've been waitin for this case to be posted here, last semester I did a moot court on this case in defense of the Michigan. Three points were apparent to me:

1. Exclusion is absurd, it provides the oppertunity for collusion between corrupt officers and criminals. As an officer, I'd only have to violate knock and announce and bam insta-innocence.

2. The knock and announce can be seperated from the search. The warrant outlines the place(s) to be searched and the person(s) or object(s) to be seized, it also provides the right to be in the places outlined. The knock and announce is merely the method by which to gain access, if it is violated the officers should be accountable. Exclusion harms society, not the officers.

3. Knock and announce does also aim to protect the officer, thus it ought to be followed without such a threat as exclusion. There was a case from I believe Arkansas? that Prof. Kerr posted about in which officers executing a warrant did not announce, entering the apartment through a back entrence, were shot at by the resident believing it was a criminal. One officer was killed and the resident is facing the death penalty. Had the officers announced, probability is high there would not have been shots fired. This should be the threat of violating announcement requirement, not exclusion.
1.10.2006 3:32am
Huggy (mail):
The problem is that Prosecuters and Police have strong incentives to not follow the rules. Thats why NYPD has a corruption scandal that is made into a movie every 20 years. Prosecuters, Police, Doctors, Lawyers,... are policed loosely at best. Current solutions are better than nothing.
1.10.2006 7:41am
John Jenkins (mail):
There's also the fact that cops will lie about whether they announced if they think they have the right person.

18usc1030, your premise 1 doesn't work. Corrupt cops could as easily violate the warrant requirement: go in without a valid warrant or exigency and the evidence is excluded. However, it seems unlikely at best given that the cops could just tip the criminals and thereby find (1) nothing or (2) no one.
1.10.2006 8:43am
LTEC (mail) (www):
"What's the big deal? Get a warrant."

1) Warrants are very complicated about what exactly they permit and what they don't, and they can even have errors, including typos. The rules about when warrants are needed are also complicated.

2) If a "proper" warrant wasn't obtained what should be done? Automatically excluding evidence is a particularly obscure "solution", and I can think of many that are better. We need to seriously discuss various solutions, comparing their pros and cons, rather than point to court decisions or proclaim "what's the big deal" to avoid talking about it. One bad consequence (slightly less obvious than that mentioned above) of excluding valid evidence is that it corrupts the trial process: any intelligent juror should interpret the presentation of weak evidence by prosecutors to mean that the real evidence has been excluded. (This is similar to, but opposite from, the way belief in police dishonesty corrupts the process.)

3) Courts making what should be legislative decisions is a very big deal indeed.
1.10.2006 11:09am
Aaron:
I agree with John Jenkins; daytime warrant requirments shortcut alot of the silly shit. NYC has such a requirement, so the only major warrant issues you see come from an over-exuberant ESU entry (flash-bangs and heart attacks). Otherwise, you hardly ever have exclusion issues.
1.10.2006 12:05pm
18 USC 1030 (mail):
John, this is true. However, here I was stating the criminal doesn't need to get rid of anything; walk in, find all sorts of contraband but it all gets excluded. It was taken from an opinion written by then judge Cardozo in 1926 whilst sitting on the NY court in which he said: '[the] criminal is to go free because the constable has blundered...

"[H]ow far-reaching in its effect upon society the exclusionary rule would be when… [the] pettiest peace officer would have it in his power through over zeal or indiscretion to confer immunity upon an offender for crimes the most flagitious."
1.10.2006 12:18pm
JGR (mail):
It is hard to argue with the assertion that we could hypothetically come up with better alternatives than the exclusionary rule; BUT, any serious argument of this sort ought to at least outline 1) What that alternative is. 2) How that alternative will be enforced.
Let's deal with point number one. In his book Lost Rights, James Bovard presents the case for the Exclusionary Rule: "Since it is effectively hopeless to rely on suits by wronged civilians to control police conduct (courts rarely vindicate such suits), the only effective restraint that can be imposed is for policemen to know that if they violate people's constitutional rights, the unlawfully seized evidence will be thrown out of court. To repeal the exclusionary rule would effectively give policemen a blank check to violate other people's rights." The attitude of the court can arguably be called commonsensical at least in this realization - A constitutional right that is effectively meaningless is effectively not a meaningful right and is only words on paper (This was the case in many totalitarian countries, which had written constitutions at least as noble-sounding as America's). It is also worth pointing out that although many people think of the exclusionary rule as a liberal product of the Warren court, it dates all the way back to 1914. The 1961 decision only extended the federal rule to state and local law enforcement.
Now I think we can agree that Bovard was at least technically wrong to say that this was "the only way" that we could have come up with to protect the fourth amendment. The court could have come up with an elaborate and even more effective scheme where policemen automatically lost their job or faced some other penalty if the court ruled that they obtained evidence illegally. While this is outside my area of expertise, I am pretty sure that this would have created due process problems.
Point number two: It is worth noting that ANY alternative that the court came up with would still be met with the same objection that it was judicial legislation, a court-imposed set of rules that was created from scratch. (Which would be true). The current rule is at least based on precedent that dates back to 1914.
The best solution would be if Congress declared that they would create a system that effectively found a way to punish cops who violated the rules, then turned to the Supreme Court and said, "The historical reasons for the exclusionary rule are no longer valid, so you might want to look into over-turning it." But the chances of that are essentially zero, which returns us to our present predicament.
1.10.2006 2:56pm
John Jenkins (mail):
18usc1030-The evidence may be excluded, but any contraband is still siezed and destroyed by the police. You don't get to go to the property room after your successful suppression hearing and ask for your kilo of cocaine back (speaking to not wanting to get rid of anything).

As to Cardozo's opinion; that's why we train cops and try to have simple rules. Cardozo is overwroght there because (1) the criminal is not immune, some evidence must be suppressed; (2) sometimes someone will go free once. Believe me when I tell you that the cops will continue to keep track of that person and he or she will get arrested again if he or she so much as jaywalks. Now, this can have overly bad consequences (go free on attempted murder and finish the job) but I would submit they are rare fringe cases and we ought not make the law based on the fringe case, but rather on what a proper, workable rule is.

LTEC's objections, I think, are not well-taken, in that the exigency exceptions to the warrant requirement are intended to be EXCEPTIONS. Perhaps there are more than we need, or they are overly broad, but a cop gets a facially valid warrant and executes correctly and in good faith, no evidence discovered will be excluded.

As to the "judicial legislation" argument; I wonder where in the hell people get the idea that we are a civil law country (apologies to Louisiana). The Constitution constrains judges. To an extent the Congress can, by statute, constrain them as well. Within those constraints it is fully within our jurisprudence for courts to find workable solutions to problems. I have read interesting articles against the exclusionary rule, but given how easy the Fourth Amendment rules are to comply with, I don't see the problem (particularly given the good faith exceptions). People who think these rules are arcane or obscure just aren't paying attention (or are laymen for whom they might very well be). Police know the rules and they know EXACTLY how to testify in court (they get classes on that and they get extensively prepped by D.A.s). Evidence is typically excluded only in the most egregious cases. If there is a better, workable rule I'd love for someone to articulate it, but I quite frankly don't think it exists.
1.10.2006 8:24pm
M. Simon (mail) (www):
The Fourth Amdmendment came about in part due to police excesses in searches for cotraband.

And here we are back in the same fix 230 years later.

A look at the history of John Hancock and the sloop Liberty would be instructive.

We are in this fix because neither citizens nor Supreme Court Justices understand the genesis of our laws. Liberty has given ground to order. And yet the lost liberty has not gained us order. In fact the opposite is the case.

Well what can you expect when the goverenment tries to regulate the personal habits of its citizens. As any good socialist government ought to do. It is not just economic socialism that is to be feared.
1.10.2006 8:30pm
John Jenkins (mail):
You're right. None of the readers of this blog (who would tend to be (1) lawyers or (2) fairly well educated have any idea of our nation's history and we probably aren't citizens anyway. It's very disorderly outside my house every day. People talking loudly, cars driving too fast, and all that. The forces of chaos and disorder are gaining ground every day. How about wringing a coherent argument out of your list of platitudes?

For example, so long as the government regulates the possession of certain things, then the government will want to search your home (legalize drugs, okay, we get that. What about howitzers or child pornography? Explain why they are excludible from your absolute rule, or why you're fine with anyone having either of them; if my neighbors get a howitzer, I'm moving).

Explain why it is that you think people don't "understand the genesis of our laws." Setting aside the whole genesis thing (did the laws come into being in an instant or did they evolve? Who can say?). you're assertion is flatly false as demonstrated by some rather sophisticated statutory analysis going on in various threads on the site.

How big was the name written on the Sloop Liberty and how far away would King George have had to have been to read it? (Yes, I know that's not the real reason.)

The Fourth Amendment came about as a compromise because one faction believed that failure to specifically list certain rights would cause the government to restrict them, despite the concerns of another faction that was afraid that a list would make people think it was exclusive (thus the Ninth Amendment, for all the good that did).

Yes, we are in quite the same fix. I understand that President Bush is sending infantry platoons to roust people out of bed at all hours of the night and look for untaxted tea and pamphlets reviling his rule; of course all he'd have to do is get the collected subscribtion lists for The Nation, The New Republic, and a handful of others and he could round up the whole lot at once and send them off for "re-education" or try them for treason to the crown, er flag, er imperial presidency, er, ah what the hell just shoot them.
1.10.2006 10:13pm
John Jenkins (mail):
For the record, if my neighbor has child porn, then I'm getting the howitzer.
1.10.2006 10:14pm