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Hudson v. Michigan:

The big decision of the day was that in Hudson v. Michigan. The "knock and announce" case produced a 5-4, conservative-liberal split. Lyle Denniston summarizes the case here. Orin has several posts on the decision over at that other site of his.

gab (mail):
Speaking as a non-lawyer, I have a question. If evidence is allowed when gathered after the police don't comply with the law, then what incentive do they have to follow the rules? I don't get it.
6.15.2006 2:05pm
L.R. (mail):
Speaking as a non-lawyer as well: You admit in your question that the police aren't complying with the law, so that opens the door to possible criminal and civil actions, not to mention internal discipline (I'd imagine police departments have a harder job to do if people think/know the cops are out to get people).
6.15.2006 2:22pm
te (mail):
L.R.

Unfortunately, that just does not happen in the real world. Many states hold that individual officers and department cannot be sued for such things and, as for the internal discipline, I really doubt that a commanding officer would say, "Great job Office Jones on finding that dead body and 20 kilos of cocaine during the search, but since you violated the department policy by failing to knock and announce properly, I you will be suspended without pay for 30 days."
6.15.2006 2:34pm
byomtov (mail):
so that opens the door to possible criminal and civil actions

Right. what a fantasy.
6.15.2006 2:38pm
M. Simon (mail) (www):
I see this as leading to more dead police and subjects of warrants.

If the police kill some one who resists service of a no knock warrant will they be held liable? Or will the dweller be held liable if he kills an officer if he suspects home invasion?

Another drug war exception to the IVth. Which was instituted in part due to contraband cases. See John Hancock and the sloop Liberty.
6.15.2006 2:43pm
Houston Lawyer:
So, were the police supposed to wait until the people in the house had time to flush the evidence? It could reasonably take a person a minute or more to answer a knock at the door. During that same time period, a lot of evidence could be destroyed. The dissent's rule would have opened up a whole new line of attack on search warrants.
6.15.2006 2:58pm
AppSocRes (mail):
It is my understanding that only two countries on earth recognize an exclusionary principle like that first enunciated by Justice Holmes: the USA and the Phillipines. Holmes's justification for this principle was that the police would be "punished" for any unconstitutional siezures of evidence by seeing that evidence excluded at trial. In that sense he was formulating public policy. There is no evidence that the presence of the exclusionary principle in the USA or the Phillipines has reduced police misbehavior in these countries nor that its absence in, e.g., Britain, France, Scandinavia, etc., etc., has increased police misbehavior in those countries. Furthermore, the principle is absurdly difficult to implement: Every new application usually sees a series of reversals and re-reversals as the case works its way up the appellate chain, suggesting that even judges are unclear on how to apply the principle. Masybe it's way past time that the Supreme Court start untangling the country from this failed policy.
6.15.2006 3:00pm
Paleo (mail):
So what do you think of your hero, Alito, now?

It seems too often that libertarianism stops at the wallet's edge.
6.15.2006 3:14pm
M. Stack (mail):
Why don't we notify individuals at least an hour in advance that the police are going to execute a search warrant on their premises? Just to be on the safe side.
6.15.2006 3:24pm
KeithK (mail):
Where in the Fourth Amendment does it require that police officers knock before entering a house to search it when in possession of a legal warrant? The Amendment simply protects against "unreasonable" searches and requires warrants. Now one could argue that a search that doesn't knock first is automatially unreasonable. I'd disagree, but it's clearly a subjective determination. For better or worse it's SCOTUS that gets to make this decision and the current court has modified it's position.
6.15.2006 3:28pm
gab (mail):
I'm not admitting anything in my question. Isn't the rule that policemen have to knock? Did the court rule that they don't have to knock? I thought the ruling was that, even though they're supposed to knock, there's no penalty if they don't comply. Is that incorrect?
6.15.2006 3:39pm
Been There, Done That:
Radley Balko's agitator blog has been excellent in citing case after case after case where these "no knock" warrant executions have resulted in tragedy, often against people who were entirely innocent of any crime.

I believe Orin Kerr is working on the aftermath of one of the sadder instances of this policy, the Cory Maye case, where an innocent man was subject to a mistaken address "no knock" door busting in the middle of the night and did what any Bush-voting NRA member would do: fired his gun at the unknown intruder. Who turned out to be a cop. The victim of the raid got railroaded onto death row. Had the police knocked, the whole misunderstanding could have been avoided.

In our increasingly polarized "red" v. "blue" world, too much extremism is talking past its mirror image.

It is not hard to reasonably agree that yes, in most circumstances, police should give citizens -- yes, that's what they are, not "drug dealers" or "terrorists," but innocent until proven guilty American citizens with civil rights -- a chance to open the door. Not every subject of a search warrant is Pablo Escobar. We don't want to live in a society where the cops just go around kicking in doors.

After "no knock," the next logical step is just to open fire on suspects. No more "stop, police." We wouldn't want "the terrorists" jumping away down a toilet.
6.15.2006 3:39pm
M. Simon (mail) (www):
So here we are with the same rules in place that caused the IVth to come into being. Contraband must not be allowed. All to protect us from a phantom menace.
Is Addiction Real?

The new head of NIDA says "addiction" is 50% genetic.Which is why some folks have no trouble resisting drugs and others are drawn to them. We are doing the right thing punishing the genetically defective. It is the American way. Isn't it?
6.15.2006 3:49pm
jrose:
gab,

The remedy would be civil damages.
6.15.2006 3:59pm
frankcross (mail):
Well, AppSocRes, there is in fact some evidence in the US that the exclusionary rule has promoted more adherence to the Fourth Amendment. Bradley Canon did a 1974 study that so suggested.

Most of the research suggests that the exclusionary rule has very little effect. Evidence is very rarely excluded under the rule. However, if the rule did not exist, it's hard to say what might happen.
6.15.2006 4:03pm
frankcross (mail):
There's more research here than I knew of. A good, if somewhat dated review of the research, and a separate study, can be found at:

Craig D. Uchida and Timothy S. Bynum, "Search Warrants, Motions to Suppress and 'Lost Cases': The Effects of the Exclusionary Rule in Seven Jurisdictions." The Journal of Criminal Law and Criminology, Vol 81, No. 4, Winter 1991

It appears that the evidence shows some benefit in law adherance from the exclusionary rule. One should be careful about throwing around claims of "no evidence."
6.15.2006 4:12pm
Steve:
Well, the point has been made that many other countries get by without an exclusionary rule. The logical question is, how do they enforce compliance with their rules of procedure? Are the police more angelic over there?
6.15.2006 4:13pm
Mongoose388:
Did I miss the part where SCOTUS said they don't need a warrant before the search? Am I safe in assuming that police still need a warrant and that if they did a warrantless search evidence can still be dismissed if the search can't be justified under probable cause?
6.15.2006 4:18pm
frankcross (mail):
Steve, there are two possibilities. One is that the police in those countries are more abusive. Another is that the original claim is wrong. For example, a quick google found this:

Comparative analysis of exclusionary rules in the United States, England, France, Germany, and Italy
Author(s): Yue Ma
Journal: Policing: An International Journal of Police Strategies &Management
Year: Sep 1999 Volume: 22 Issue: 3 Page: 280 - 303
6.15.2006 4:55pm
htom (mail):
They've just turned all warrants into no-knock warrants. A lot of people (some of them mistake-making cops, some of them criminals, and a lot of them innocents) are going to die because of this.
6.15.2006 5:12pm
Houston Law Alum (mail):
Just a thought on the supposed congeniality of the "new" court: In Justice Breyer's dissent, he questions the logic of the majority opinion and refers to the majority, not as "the majority" or as "the Court," but instead, singles out the author---Justice Scalia---for its faults. On page 25 of the dissent, Breyer writes:

How can Justice Scalia maintain that the evidence here---a gun and drugs seized in the home---is not the fruit of the illegal entry.

Reminds me of the Scalia-Brennan battles of the past. (Michael H. v. Gerald D., Burnham v. Superior Court, etc.)
6.15.2006 5:13pm
Adam (mail):
Houston (and others), there is no knock-and-announce requirement when police reasonably fear that evidence will be destroyed, or that they may physically harmed by announcing their presence.
6.15.2006 5:18pm
Angus:
Where in the Fourth Amendment does it require that police officers knock before entering a house to search it when in possession of a legal warrant?

It doesn't spell it out, but the founders believed the did not have to spell everyting out in the Bill of Rights. Knock and announce was a fundamental part of the legal system in Great Britain, the American Colonies, and the United States for centuries.

The Constitution also does not require "innocent until proven guilty." Should SCOTUS be allowed to "interpret" that away as well?

This is a very, very bad decision in terms of personal liberty.
6.15.2006 5:18pm
SimonD (www):
Isn't the rule that policemen have to knock?
Yes, but:
This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.
Wilson v. Arkansas, 514 U.S. 927, 934 (1995).
6.15.2006 5:35pm
SimonD (www):
Just a thought on the supposed congeniality of the "new" court: In Justice Breyer's dissent, he questions the logic of the majority opinion and refers to the majority, not as "the majority" or as "the Court," but instead, singles out the author---Justice Scalia---for its faults. On page 25 of the dissent, Breyer writes "How can Justice Scalia maintain that the evidence here---a gun and drugs seized in the home---is not the fruit of the illegal entry."
I would speculate that until Justice Alito joined the court and made his intentions clear regarding this case, following re-argument, the decision was 5-4 the other way with Justice Breyer writing for the court and Justice Scalia writing the dissent. Following the switch, the two opinions changed places, and Breyer's law clerk may simply have neglected to make this one change, which would be far more in line with protocol were it contained in the opinion of the court, which often refers to dissenters by name.
6.15.2006 5:38pm
Angus:
Simon,

I think that supposition is correct, with one exception. I'd bet that Alito had his mind made up before re-argument. The reason he got offered the nod after Miers was because of his favor toward expanding police powers.
6.15.2006 5:46pm
Kate1999 (mail):
Is it true that no one saw the knock and announce requirement as a constitutional issue until the 1990s?
6.15.2006 5:56pm
OrinKerr:
SimonD,

It's possible, but Justice Breyer also uses somewhat unconventional terminology in some cases. For example, in Dickinson v. Zurko, a patent case a few years back, Justice Breyer rather oddly referred to the lower court (the Federal Circuit) throughout the opinion as if it were the litigant that was making the argument.
6.15.2006 5:59pm
gab (mail):
Katel - I finally broke down and read the ruling or the opinion or whatever it's called. Anyway, the answer to your questions is "no." And I quote here:

"The common-law principle that law enforcement officers must announce their presence and provide residents anopportunity to open the door is an ancient one. See Wilson v. Arkansas, 514 U. S. 927, 931–932 (1995). Since 1917, when Congress passed the Espionage Act, this traditional protection has been part of federal statutory law..."

I shoulda just read the thing first...
6.15.2006 6:17pm
Christopher Cooke (mail):
My take on this decision is that Kennedy is saying "no exclusionary rule" for violations of the knock&announce rule unless the violations become a big problem, and then maybe I will change my mind on this issue.
6.15.2006 6:24pm
Kate1999 (mail):
gab,

I don't understand your reponse. The opinion says that the rule is an ancient common law rule, and it has been statutory since 1917. But my question is about when the rule was considered part of the Fourth Amendment.
6.15.2006 6:35pm
Angus:
I'm not gab, but my response would be that since "knock and announce" was widely accepted as necessary at the time of the adoption of the 4th Amendment, it therefore must be a part of any "reasonable" search.
6.15.2006 6:39pm
te (mail):
Further proof that Scalia is a schmuck, as if any more evidence were needed.

He sarcastically says that those opposed to no-knock entry are worried about people suffering the indignity of being seen in their pajamas or some other nonsense.

Having 6 or 8 armored SWAT guys with assault weapons bust down your door and throw concussion grenades through your glass windows is a bit more troubling than being seen in one's pajamas.
6.15.2006 6:39pm
Anderson (mail) (www):
Looking hopefully forward to Orin Kerr and Radley Balko taking up each other's interpretations of the decision ...
6.15.2006 7:19pm
M. Simon (mail) (www):
Mongoose388,

This latest rule re:IVth means that a warrant is carte blanche for police to break and enter.

I predict an uptick in battering ram sales for those forces inadequately equipped for the new rule.
6.15.2006 8:32pm
David Berke:
Does anyone else find it amusing that an apparent conservative has suggested that we look to the laws of other countries to interpret our own Constitution?
6.15.2006 8:39pm
Anonymous Koward:
Unfortunately, that just does not happen in the real world. Many states hold that individual officers and department cannot be sued for such things and, as for the internal discipline, I really doubt that a commanding officer would say, "Great job Office Jones on finding that dead body and 20 kilos of cocaine during the search, but since you violated the department policy by failing to knock and announce properly, I you will be suspended without pay for 30 days."

Don't you mean "suspended with pay?"
6.15.2006 9:06pm
M. Simon (mail) (www):
Adam 4:18PM,

In petty drug cases there is always a problem with destruction of evidence. Cases where the drugs are for personal use are especially more problematic.

In other words smaller crimes warrant greater intrusiveness.

It would be like saying the government can break your door down for jay walking but hit and run requires a knock.

Proof positive that drugs lead to insanity.
6.15.2006 9:10pm
M. Simon (mail) (www):
M. Stack says:

Why don't we notify individuals at least an hour in advance that the police are going to execute a search warrant on their premises? Just to be on the safe side.

For Congressmen the rule is nine months. I think ordinary citizens could be accorded an hour.
6.15.2006 9:22pm
silverpie:
This is not really an interpretation of the Constitution so much as it is an interpretation of the common law that predates America, which the Constitution actually incorporates by reference in one place (the respect for jury decisions on questions of fact) and remains an important source of law when not overridden by more explicit forms. In this matter, considering interpretations made by other countries that share the common-law tradition may be helpful--but not when we're discussing the written provisions of the Constitution proper.
6.15.2006 11:54pm
David M. Nieporent (www):
Having 6 or 8 armored SWAT guys with assault weapons bust down your door and throw concussion grenades through your glass windows is a bit more troubling than being seen in one's pajamas.
The problem is that this case illustrates the problem with the entire knock-and-announce doctrine. The cops did not kick in the door without an announcement here. They knocked, waited a few seconds but not long enough, and then walked in (through an unlocked door). The problem is that there's no clear definition of what "long enough" is.

Although the issue of whether this was a violation at all was not before the court (because the state conceded the point), you could see the wheels churning in Scalia's head. He likes bright line rules. How does the Supreme Court decide what "long enough" is? What principle does it use? And if it DOES set a limit -- say, 15 seconds -- then what? If you create an exclusionary rule for this situation, then every single search will lead to a suppression hearing where the suspect will allege that the cops only waited 12.4 seconds and the cops say, "No, we waited 15 seconds." Good luck.

This was not, contra your rhetoric, a "may police kick down doors?" case. That issue is long settled. This is just an issue of whether they have to wait 5 seconds or 15 seconds before doing so, and if not, what do we do about it?

I admit I would much prefer that police knock on my door and wait for me to come to the door to let them in, instead of kicking down my door without knocking, or kicking down the door because I didn't come fast enough. But my preference is not the same thing as a constitutional command.
6.16.2006 5:46am
SimonD (www):
my preference is not the same thing as a constitutional command.
I didn't realize you weren't a liberal, David! ;)

M.Simon (Congress comment) - LMAO!

Angus - I'm not sure that's really true; Alito had long been a favorite potential nominee beyond the White House bubble, and so when you've just had your ass handed to you by a rebellion, the natural thing to do is to say to the rebels, "hey, I like this guy, you like this guy, let's get this guy to do it." To be sure, though, Alito has generally been sympathetic to the needs of law enforcement than drug dealers (in some quarters, that's apparently a bad thing), and I'm delighted that he was there to make this result possible.
6.16.2006 10:14am
Duncan Frissell (mail):
Reinforced concrete houses, steel doors. Constitutional problem solved by technology.
6.16.2006 11:11am
Medis:
As an aside, some commentators seem to be assuming this case somehow changed the substance of the knock-and-announce rule. Of course, it didn't--it was purely about remedies.

Anyway, as someone who thinks it is just fine to look to other countries for helpful ideas and a sense of possible consequences of legal rules--as long as foreign sources are not treated as authoritative where inappropriate--I agree it is useful to consider whether our version of the exclusionary rule is indeed a good idea in light of the experience of other countries.

Basically, my sense is that many other comparable countries do indeed rely more heavily on other remedies, particularly administrative remedies (eg, you could get an officer or official fired with a complaint), but sometimes private rights of action as well. And this different emphasis seems to work as well or better in many of these other countries.

But as always, it is difficult to know whether such an alternative approach could be imported, even if we wanted to. The basic problem is that in the United States, we do not have a strong tradition of regulating police actions through such alternative means. And, of course, our federal system makes it hard to guarantee adequate administrative remedies for police misconduct in all locales.

So, it may not be possible to import a system with a different emphasis on how to remedy police misconduct. Unfortunately, however, this may cause a vicious cycle, insofar as the exclusionary rule itself is actually a factor in our permissive attitudes toward police misconduct.

That could happen in at least two ways. First, we may rely too heavily on the exclusionary rule, which at most has proven to have only limited benefits, and therefore not develop adequate alternative remedies as well. Second, the exclusionary rule--or at least popular perception of the exclusionary rule--may in fact be contributing to our permissive attitudes toward police misconduct through a perception of a need to compensate (ie, we may think it is too easy for criminals to go free because of the exclusionary rule, so we compensate by being more tolerant of police misconduct in other ways).

So, the root problem seems to me to be our relatively permissive attitude toward police misconduct, which makes it very difficult to devise an effective system for limiting police misconduct (ie, one way or another, we will find a way to be permissive). This, of course, is part of a general cultural attitude toward crime and criminals (eg, we also permit, and even demand, things like very high relative incarceration rates). And insofar as this is a deeply embedded aspect of our culture, there may be little that legal rules or reform can accomplish, at least in the short term.
6.16.2006 11:35am
TJIT (mail):
SimonD,

You said

"Alito has generally been sympathetic to the needs of law enforcement than drug dealers (in some quarters, that's apparently a bad thing)"

That comment is aggravating on a number of levels.

Making sure the police follow correct procedures is not designed to protect the drug dealers it is designed to protect innocent citizens.

Your comment makes it painfully obvious you don't have a clue how many mistakes paramilitary swat teams make when executing these types of search warrants. Going to the wrong address is a consistent problem.

You are also ignorant of how many bad faith practices are used to obtain these types of warrants. The Tulia case and the corrupt narcotics informant in Dallas are two examples of this.

Worst of all you are ignorant of just how lethal these types of mistakes can be.

A letter to the Memphis Commercial illustrates this problem.

"Last month a drug raid by the Horn Lake Police Department, which entered the wrong home, resulted in an elderly couple being beaten and hospitalized (March 23 article, "2 hurt in botched meth lab raid"). The reaction by most people has been, "Oh! What a tragic mistake!" I have a different viewpoint .

A few years ago, in Henderson County, Tenn., my niece, Stacey Renee Bailey Walker, was shot and killed by a deputy (on the force for a week or so) during a drug raid that went to the wrong address."

Take a look at this link Paramilitary swat raid mistakes for a listing of some of these cases.

No knock / dynamic entry warrants are not benign and are highly dangerous to citizens and police officers. They should be used only when the benefits outweigh the risks to the police and innocent citizens.

The Hudson ruling makes it possible for the police to execute any type of search warrant as a no knock warrant with no fear of any sanction. This increases the risks to both paramilitary swat teams and citizens.
6.16.2006 11:39am
M. Simon (mail) (www):
SimonD said,

"Alito has generally been sympathetic to the needs of law enforcement than drug dealers (in some quarters, that's apparently a bad thing)"

Apparently you believe police can cure addiction. Perhaps we can put them on the cancer problem once they have addiction licked.

The new head of the NIDA says addiction is 50% genetic. Which might lead one to believe the police are in the forefront of genetic modification. I suppose if you count the users and dealers they kill you might be right. Such methods of genetic control are, however, hardly considered civilized.

BTW I am glad you like my sense of humor - despite our other differences.
6.16.2006 12:23pm
SimonD (www):
No knock / dynamic entry warrants are not benign and are highly dangerous to citizens and police officers. They should be used only when the benefits outweigh the risks to the police and innocent citizens. The Hudson ruling makes it possible for the police to execute any type of search warrant as a no knock warrant with no fear of any sanction. This increases the risks to both paramilitary swat teams and citizens.
If no knock / dynamic entry warrants are "highly dangerous to . . . police officers," it stands to reason that the police will not use them in situations other than "when the benefits outweigh the risks to the police." As the court noted, the police have several strong non-constitutional incentives to avoid make an unannounced entry, not the least of which being the prospect of being shot "in supposed self-defense by the surprised resident," slip op. at 7.

I really quite strongly agree with Medis' comment about the misrepresentation of the Hudson holding, but I'd suggest that there is an additional component of that misrepresentation in the text quoted above, viz., that TJIT almost seems to be implying that what Hudson permits, it thus requires. What it actually holds is that the police are free - as I think they should be - to execute warrants based on their own judgement as to needs of the circumstances, without facing the mind-boggling dillemma that the dissenters (and TJIT) would presumably impose on the police, viz., that they must time their entry into a narrow and ill-defined window, bookended with the evidence disappearing if they wait too long, and the evidence being suppressed under the exclusionary rule if they don't wait long enough.

(Nor, incidentally, is it clear to me that the other problems that TJIT claims plague the execution of warrants are susceptible to remedy by the needless suppression of evidence, or still less, to remote control from Justice Breyer's chambers.)

Apparently you believe police can cure addiction.
There is no need for them to cure addiction. An alcoholic who has stopped driking is still an alcoholic, he is simply an addict who has found a solution to his problem. Even if addiction is genetic, which I'll be interested to see the evidence of, that does not mean that society necessarily indulges it by failing to enforce neutrally-applicable prohibitions.

BTW I am glad you like my sense of humor - despite our other differences.
I have to admit that I'm pretty contemptuous of the House's venal and self-serving assertion of privelege in the Jefferson search, so that joke sits pretty well with me.
6.16.2006 2:19pm
msmith (mail):
Miami
AP-Reuters
June 18, 2006

..."Apparently Armando was asleep at his post at the estate guardhouse", said Mr. Limbaugh. "What's this country coming to when the rich like me here at El RushBo, or the Kennedys at their compound, or O.J Simpson at his estate can't keep the gangstas and the police out? Well, I guess Officer Det. Fuhrman did make the righteous bust there. Good work."

"Anyway, Armando was asleep and we had shut off the electrified wires after the President asked me to conserve energy. I don't know why those gangstas thought there might be a huge drug stash at Estate El RushBo but they climbed right over the 12 foot fence. Thankfully, my pool boy Manuel saw them coming and as we had rehearsed many times, he immediately flushed my pain killers into the septic tank. Then, per my instructions, he shot both gangstas dead."

"Happy days, you say. Not really. Unfortunately in the excitement Manuel forgot that Armando was now awake and the gate was now open so he did not recognize the responding police officers. Plucky Manuel got off one shot, but the officers returned fire. I liked Manuel."

"Still, it could be worse. Looking at a nuisance 10,000 dollar wrongful death suit from Manuel's family but I bet the Republicans kick his family out of the country before they see a RushBo penny. And I have my world class criminal lawyer, Mr. Roy Black, ladies and gentleman, looking out for the Rush again. Don't see Mr. Black on TV too much like those talking head TV legal mongrels. He focuses on crushing people in court."

"And", said Mr. Limbaugh, "those ACLU hippies will probably help me out again. I'm all for civil liberties--mine. The rest of you dittoheads can kiss my big Rush-boil that kept me out of Vietnam. Now, Mr. Black says I should shut up."
6.16.2006 2:59pm
te (mail):

This was not, contra your rhetoric, a "may police kick down doors?" case. That issue is long settled. This is just an issue of whether they have to wait 5 seconds or 15 seconds before doing so

What in the world are you talking about? Here is what happens: There is a guy with a battering ram. He swings it back and at the top of his backstroke another guy knocks on the door and yells police as guy 1 is swinging the ram forward. Look up the footage of raids. They are all over the internet. There was one recently here in SF where 60 (yes 60) agents of the local police, FBI, ATF, etc busted into a residence and clubhouse of someone in the "hells angels". The camera crew was there filming as it happened. (Interesting isn't it that it is so dangerous and they are so concerned about loss of evidence that they can tip off the local news crew anyway.) (Oh, by the way, they found a bag of what might be crystal meth in an outbuilding and also a shotgun - I feel safer)

With the Hudson ruling, the above will be the norm.

And if you want to read a real howler, see Scalia's opinion where he writes:

"modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect."

Yes, our liberty now rests with precinct captains who will discipline their officers for conducting searches IN A PERFECTLY LEGAL WAY AS RECOGNIZED BY THE SUPREME COURT. Christ almighty.
6.16.2006 3:01pm
SimonD (www):
Look up the footage of raids. They are all over the internet.
I don't think that some grainy internet footage or a regular viewing of "Cops" are an adequate substitute for a reliable and quantitative study.
6.16.2006 3:13pm
Baseballhead (mail):
Overturning century-old precedences. Damn you, activist judges!
6.16.2006 3:16pm
David M. Nieporent (www):
What in the world are you talking about?
I am talking about the actual facts of the actual case before the actual Supreme Court, rather than hypothetical facts about hypothetical cases. This wasn't a bash-down-the-door situation.
Here is what happens: There is a guy with a battering ram. He swings it back and at the top of his backstroke another guy knocks on the door and yells police as guy 1 is swinging the ram forward. Look up the footage of raids. They are all over the internet. [...] With the Hudson ruling, the above will be the norm.
The Hudson ruling has nothing to do with that scenario. You seem to mistakenly think the Hudson case is about whether no-knock entry was permitted. It isn't about that. That issue is settled. No-knock is permitted, with a no-knock warrant. In the cases you describe, police were presumably employing no-knock warrants.

The utilization of no-knock warrants would have continued to remain permissible, regardless of the ruling in Hudson.

Yes, our liberty now rests with precinct captains who will discipline their officers for conducting searches IN A PERFECTLY LEGAL WAY AS RECOGNIZED BY THE SUPREME COURT. Christ almighty.
Christ almighty is right. First, the Supreme Court does not generally declare searches legal or illegal; it declares searches constitutional or unconstitutional. The state and federal legislatures are free to declare this illegal (as are state courts based on state constitutions.)

Second, the Supreme Court did NOT DECLARE THIS TO BE LEGAL OR CONSTITUTIONAL. (Wow, you're right: arguments become much more compelling when written in capital letters.) That question was not before the Supreme Court. All parties agreed that what happened was unconstitutional. The REMEDY for this unconstitutional activity was the only issue before the Court. All the Court found was that suppression was not the appropriate remedy.
6.16.2006 5:28pm
te (mail):
Nieropent

Oh please - rights without remedies are about as useful as my dog's vomit. The REMEDY now will be up to supervising police officers. If you think that there is police officer in the world who is going to discipline an officer for not observing the niceties of procedure - where all of the evidence obtained following his or her actions is admissible - you must be smoking crack.

I'd done with you.
6.16.2006 6:22pm
David M. Nieporent (www):
Oh please - rights without remedies are about as useful as my dog's vomit. The REMEDY now will be up to supervising police officers. If you think that there is police officer in the world who is going to discipline an officer for not observing the niceties of procedure - where all of the evidence obtained following his or her actions is admissible - you must be smoking crack.
There are remedies. Just not exclusion. Have you heard of 42 USC 1983?

The point remains: no knock entry was legal before Hudson, and would have been legal regardless of the ruling in Hudson. So if that's what you're worried about, your anger is focused on the wrong target.
6.16.2006 6:56pm
te (mail):

Have you heard of 42 USC 1983?


ha ha ha ha ha ha ha ha ha haha . . . ah ha ahaha ha hahahaha ha (that is laughing by the way)
Yes, your sitting in your home watching TV, when you hear someone yell something outside and your door is busted off its hinges, you dog starts barking in the backyard and gets shot and then you see 6 guys in body armor with automatic weapons pointed at you in the second before you are thrown to the ground and handcuffed while one guy knees with his knee on your neck.

You discover that the po-lice should have announced and given you a few seconds to make it to the door first.

What to do? Well you go sharpen up your pencil and file a suit in federal court, that's what you do.

If you make it past the string of immunities, the motions for summary judgment and get to trial (not likely) you will very likely get a miniscule award.

Yes, that is a fine and dandy remedy.

The truly sad thing is that you, apparently, actually believe that this remedy. Just like Scalia apparently believes that police officers are all such professionals nowadays that they really, really care about protecting people's rights (even if they get to introduce the evidence obtained in violation of those rights.)

But, of course, this is just a hypothetical problem to you, I imagine - just like it is to me. I'm a rich white guy who lives in the suburbs and the chances are vanishingly small that I will ever have an encounter like the above. And that's the reason why the Supremes can get away with such decisions - the people who will get screwed by it don't have any power.
6.16.2006 9:04pm
David M. Nieporent (www):
If you make it past the string of immunities, the motions for summary judgment and get to trial (not likely) you will very likely get a miniscule award.

Yes, that is a fine and dandy remedy.
As opposed to what, TE? Should the defendant in this case have received a large award because the police didn't wait ten extra seconds before entering? How much are those ten seconds worth? Should he get the large reward of escaping guilt for his crime?

If you're innocent, the exclusionary rule isn't worth anything to you. The hope is that it will deter police from entering without knocking. But if you're innocent, the lack of knocking is far less significant than the search itself, and this ruling has nothing to do with searches. Remember, this is not a warrantless search. The search here has already been approved by a judge. We're talking about a matter of a few seconds, that's all.

Nor does this ruling have to do with the principle of no-knock searches, which the court has already accepted. In any of those drug cases with the big raids, the police are likely to have secured a no-knock warrant, which obviates this entire debate. And if you make the penalty for entering without sufficient delay as draconian as the exclusionary rule, then that will just encourage law enforcement to seek, and judges to issue, even more no-knock warrants.
6.16.2006 10:31pm
TJIT (mail):
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SimonD
If no knock / dynamic entry warrants are "highly dangerous to . . . police officers," it stands to reason that the police will not use them in situations other than "when the benefits outweigh the risks to the police."
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If you take a look at the link I provided in my post you will find numerous examples where paramilitary swat teams were used in situations where no reasonable risk/benefit analysis would justify them.


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SimonD

the police will not use them in situations other than "when the benefits outweigh the risks to the police."

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I find it interesting that the risk to innocent citizens never enters into your calculus.

I know this ruling does not change the state of things on the ground very much. It does have the impact of turning every search into a potential no knock search. And no knock searches are dangerous to innocent civilians and police officers.
6.17.2006 1:31pm
glangston (mail):
I came across this novel approach that was offered by a lawyer. It attempts to balance the realities, rather than the competing philosophies.

"This case would be remanded to the District Court to determine just what administrative actions were taken against the police officers involved in the 'no-knock' raid, before the merits of the Constitutional issues were addressed.

The specific search involved in this appeal occurred in 1998, so Detroit authorities have had at least 8 years to punish the officers, initiate administrative remedies to prevent the re-occurence of this sort of 'police blunder' (as it is called in the Majority Opinion), and to otherwise make certain that these 'police blunders' do not happen again.

So, let's see what has been done....by the authorities.

If nothing....then the search and the evidence seized will be tossed.

And this fellow will be released back into the Detroit community... (picture of original defendant)
6.17.2006 1:33pm
SimonD (www):
If you take a look at the link I provided in my post you will find numerous examples where paramilitary swat teams were used in situations where no reasonable risk/benefit analysis would justify them.
In all but the most self-evidently egregious cases, I decline to second-guess trained law enforcement with an understanding of the situation on their streets as to what is or is not justified when executing a warrant. See Ornelas v. United States, 517 U.S. 690 (1996):
[A] a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.

A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference. For example, what may not amount to reasonable suspicion at a motel located alongside a transcontinental highway at the height of the summer tourist season may rise to that level in December in Milwaukee. That city is unlikely to have been an overnight stop selected at the last minute by a traveler coming from California to points east. The 85-mile width of Lake Michigan blocks any further eastward progress. And while the city's salubrious summer climate and seasonal attractions bring many tourists at that time of year, the same is not true in December. Milwaukee's average daily high temperature in that month is 31 degrees and its average daily low is 17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that a Californian stopping in Milwaukee in December is either there to transact business or to visit family or friends. The background facts, though rarely the subject of explicit findings, inform the judge's assessment of the historical facts.
To be sure, that is dicta applying to probable cause, but it articulates a point I find pursuasive. What seems excessive force to a police office executing a warrant here in a peaceful Indiana suburb might be insufficient force to order a cheeseburger to a copin Washington, D.C.

I find it interesting that the risk to innocent citizens never enters into your calculus.
Of course it enters into the calculus, just not in the way you suggest. You seem to be hung up on the risk you see this ruling creating for victims of mistaken identity, while I see this ruling as safeguarding the victims of criminals who escape jail time because they managed to suppress evidence. Even assuming that this ruling will increase the chances of such searches - and for reasons pointed out above, I think it unlikely that it will,given the more practical restraints on police usage - I think that the risk to innocent civilians that handicapping law enforcement in the manner you advocate far outweighs any incidental increase in the risk from searches where the police do not knock-and-hang-10.
6.17.2006 4:24pm
D K Warren (mail):
In Hudson, Scalia talks of civil lawsuits as an effective deterrent (i.e. – an alternative to the exclusionary rule) and how that's been bolstered by the authorization of attorney’s fees for civil-rights plaintiff's. As he so eloquently notes, "This remedy was unavailable in the heydays of our exclusionary-rule jurisprudence, because it is tied to the availability of a cause of action." According to him, since some violations would yield damages too small to justify the expense of litigation, 42 U.S.C. § 1988(b) has come to the rescue and allowed attorneys to be paid despite any small judgments for the plaintiff.

Not so fast, Nino.

As a decision out of the Tenth Circuit from earlier this year makes painfully clear, that's not always true, and it certainly wouldn't be true for Hudson himself. This is a case that should be on everyone's radar as they so passionately discuss the merits of civil lawsuits to combat violations of the Fourth Amendment rather than applying the exclusionary rule.

Ralph Robbins (the plaintiff) was arrested for several outstanding traffic warrants against him. During his apprehension and arrest, the police officer smashed the driver’s side window of the vehicle Robbins was in. He was eventually charged and convicted of aggravated assault on a law enforcement officer and incarcerated.

While he was in prison, he filed a § 1983 lawsuit alleging violations of the Fourth Amendment by the officer during his arrest. The court ruled that the use of force in breaking the car window in an effort to arrest the plaintiff was unreasonable, but because he suffered no physical injuries he was awarded only nominal damages of $1.00. That's one dollar.

It's imperative to note that damages in a § 1983 action must be based on damages actually suffered, as the purpose of such a lawsuit is to compensate persons for injuries caused by the depravation of constitutional rights. Memphis Community School District v. Stachura, 477 U.S. 299, 307 (1986) (citing Carey v. Piphus, 435 U.S. 247, 254, 257 (1978). Courts have permitted awards of compensation for the emotional shock or physical harm caused by an unconstitutional search or seizure. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (emotional damages for unconstitutional search of apartment and arrest).

Nonetheless, absent actual injury, only nominal damages recoverable for § 1983 violations unless punitive damages are awarded to deter or punish the malicious deprivation of rights. Piphus, Id. at 254-55.

Now back to our $1.00 victory for the plaintiff in this case.

The plaintiff's lawyer sought attorney's fees under § 1988 (remember, Scalia's "bolstering" reference in Hudson) and the court awarded $9,680. A panel of the Tenth Circuit upheld this award, 402 F.3d 1047 (10th Cir. 2005), but on rehearing en banc, the full court reversed and awarded the attorney a fee of $1.50. That's one dollar and fifty-cents. 435 F.3d 1238 (10th Cir. 2006).

The court ruled that the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d) limits attorney-fee awards in civil-rights suits filed by prisoners to 150% of the money judgment. It did not find this outcome to be absurd. The panel stated:

"Certainly, Mr. Leatherman's performance at oral argument before this court indicates how fortunate Mr. Robbins was to have such a compelling advocate on his side. But any temptation we may have to reward Mr. Leatherman for his service is overcome by our duty to respect an Act of Congress."

$1.50 to litigate a Fourth Amendment claim under § 1983 all the way up through an en banc panel of a federal appeals court.

So what's the upshot of all this?

Smashing down your front door and raiding your home in violation of the knock-and-announce rule to execute a warrant (like smashing the driver's side window of a vehicle you're sitting in to arrest you on outstanding warrants) might well violate the Fourth Amendment, but unless you suffer physical injury – or death – you're likely to receive only nominal damages (unless your able to successfully prove intentional or malicious misconduct on the part of the officers).

And if you're in jail, whether because of the original charges leading to the raid or derivative evidence discovered thereafter (remember, no more suppression after Hudson), your attorney is severely limited in the amount of fees they're entitled to.

Remember, it makes no difference that the misconduct occurred before the plaintiff's conviction or incarceration. The court flatly rejected any interpretation of the PLRA that limited it to litigation concerning their post-incarceration treatment. "We see nothing absurd about reducing that incentive for all civil-rights claims filed by prisoners, not just those challenging conditions in prison." 435 F.3d at 1244 (emphasis in original).

So Scalia's rose-colored vision of § 1988 coming to the rescue of those civil-rights claims which don't provide large judgments is, at least partially, inaccurate. Yet, this is being touted as an effective alternative to the exclusionary rule which will serve as a deterrent to police misconduct.

Unless you're injured, killed, or completely innocent and not jailed (i.e. – police raided the wrong house and didn't discover any other incriminating evidence during their unannounced visit), you cannot collect anything in damages that will make it worth the while of any attorney out there to take on your case (except those willing to do it pro bono).

With both state and federal legislatures currently engaged in a serious wave of tort reform and capping of attorneys' fees, it's unlikely that any exception is going to be opened up to allow meaningful Fourth Amendment claims (i.e. – those which would operate as effectively and efficiently as the exclusionary rule) on behalf of "criminals" and those who are otherwise presumed guilty.

When the police violate the knock-and-announce rule (at least as it now stands in my home state of Florida because we're chained to SCOTUS Fourth Amendment decisions via a 1982 amendment to our state constitution), you get convicted and nothing happens to the police (absent the aggravating circumstances mentioned above). When you can violate a rule or the law without any consequences then the rule is meaningless. It may as well not even exist.

Some might find this perfectly acceptable, but it certainly undermines the significance of the Court's decision in Wilson, 514 U.S. 927 (establishing the knock-and-announce rule as part of the reasonableness requirement of the Fourth Amendment). Moreover, I'll quote professor Wayne R. LaFave (a highly recognized preeminent authority on the Fourth Amendment) who has said:

The "violate now and pay later" character of the tort remedy would permit the government to buy itself out of having to comply with constitutional commands. To abolish the exclusionary rule and replace it with an action for damages against the government treasury is to have the law speak with two voices. The Fourth Amendment does not grant the government the discretion to decide whether the benefits of infringing the public's right to be protected from unreasonable searches and seizures are worth some expenditure of the public's funds; the language of the amendment is an affirmative command."

Search &Seizure, § 1.2(c) (3d ed. 1996). We're headed for serious trouble when we start permitting the police to violate the constitution based upon the dollar value we attach to their misconduct.

Back to the Robbins decision from the Tenth Circuit, I'm going to borrow from a post over at appellatedecisions.blogspot.com:

"So Robbins' attorney did all that work for free. But as a consolation prize, the Court applauds his performance at oral argument, calling to mind a certain credit card advertisement:

Winning a civil rights case . . . $10,000 . . .

Losing on appeal . . . $1.50 . . .

The unanimous praise of an en banc panel of the Tenth Circuit . . . priceless."

I'll add one more to that list:

The value of the knock-and-announce rule after Hudson . . . . worthless.
6.19.2006 12:31am