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Legal Questions "Short-Circuited" By Hudson v. Michigan:
In last June's decision in Hudson v. Michigan, the Supreme Court held 5-4 that the newly-constitutionalized common-law "knock and announce" rule — a rule that an officer executing a warrant normally has to knock, announce his presence, and then wait a bit before forcibly entering a home — is not enforced with an exclusionary remedy. In an opinion handed down on Friday, Judge Moylan of the Maryland Court of Special Appeals points out the very interesting questions that would have been raised in suppression hearings if Hudson v. Michigan had gone the other way:
  This case had promise of leading us to a hidden treasure trove of intriguing nuances about the phenomenon (or phenomena) of knocking and announcing, had not that inquiry been unceremoniously short-circuited by Hudson v. Michigan, 547 U.S. ____, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006).
  A vintage conundrum has always been that of whether there is any sound when a great tree falls in a forest but no animal ear is within range of the percussive impact. The answer depends, of course, upon one's conceptualization of sound. The same spirit of intellectual inquiry leads us to wonder whether it makes any difference if a policeman enters a home without knocking if there is no one within to hear a knock in any event. That answer will depend upon the purpose of the knock. Is it to give notice to an occupant of an impending police entry or is it only a mechanical drill movement in a required manual of arms?
  Another intriguing question, also rudely aborted by Hudson v. Michigan, is that of how to knock (or should one knock) on an open door. And how does one knock if there is no door at all? How does one knock on the flap of a tent? Should one knock on a classical Japanese paper house if the result would be a fist through the wall? Should the police carry a knocking board with them as standard equipment? Will we ever be reduced to measuring a knock's decibel level or to evaluating its acoustical carrying power? Was it for this that the embattled farmers stood at Concord Bridge? We were well on the way to drowning in contentious urging such silliness and triviality when Hudson v. Michigan administered a merciful coup de grace.
  Intertwined with these questions, of course, is the tantalizing semantic teaser of whether "knock and announce" is a single indivisible phenomenon or a double-barreled requirement in the unforgiving conjunctive. If the announcement of police presence is loud and clear, is a subsequent (or an antecedent) knock a relentlessly additional Fourth Amendment prerequisite, or is it merely an exclamation point? If the giving of notice is the animating purpose, does not the announcement alone do the trick? Is a police entry after a proclamation, with a bullhorn, "Put your hands in the air; we're coming in," unreasonable without an attendant knock? In short, is not the pairing of the words "knock and announce" nothing more than a linguistic convention akin to "goods and chattels" or "give and bequeath"?
  Interesting law geek questions — and no doubt the kinds of questions that helped get five votes for the view that suppression of evidence should not hinge on the answers.

  Thanks to fourthamendment.com for the link.
David M. Nieporent (www):
In Hudson, the state conceded that the knock-and-announce rule had been violated. I'm still not certain why it did so, but I've been convinced that (although it wasn't officially at issue in the case) this very issue caused the Hudson majority to cringe.

Because, in fact, in Hudson, the police did announce their presence. The violation was that they didn't wait sufficient time after announcing before they entered. But the prospect of the Supreme Court trying to draw a line and arguing that 15 seconds is okay but 13 seconds isn't must have seemed absurd to the majority. (Let alone the problem of applying this in the real world; how often would the police concede that their wait was two seconds short if those two seconds meant the difference between admissibility and suppression?)
9.10.2006 11:05pm
Wintermute (mail) (www):
"no doubt the kinds of questions that helped get five votes for the view that suppression of evidence should not hinge on the answers"

Orin, I've ceased to believe that you are in any stretch of the imagination a friend of the Bill of Rights.

[OK Comments: Wintermute, I'm not sure how my comment on the kinds of issues that Supreme Court Justices might find important is revealing of whether I am a friend of the Bill of Rights. Can you explain a bit how your comment relates to the post?]
9.10.2006 11:50pm
JonC:
I'm merely a 2L, and certainly no crim pro expert, so perhaps I'm wrong about this, but are we entirely sure that these kinds of questions about the knock-and-announce rule have been rendered completely moot by Hudson? After all, Hudson, from what I understand, did not abolish the knock and announce rule itself- the case merely held that exclusion is not the proper remedy for a violation of that rule, as Prof. Kerr notes. Hence, isn't it possible that a future court might indeed have to make the kinds of determinations that the Maryland court discusses- perhaps in the context of a Section 1983 action? Is the Maryland court possibly conflating the violation of the rule with the remedy?
9.11.2006 12:04am
OrinKerr:
JonC,

You're right in theory. But the issues would have been much more likely to be litigated if there were a suppression remedy.
9.11.2006 12:15am
JonC:
Fair enough- that is undeniably true. Thanks, Prof. Kerr.
9.11.2006 12:30am
Justin (mail):
This makes no sense - courts have to make these decisions all the time, even when the exclusionary rule is in play - see United States v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc) (deciding that certain "requests" to open the door for questioning can be construed as "demands," and thus creating an illegal search when the suspect opens the door and places evidence in plain view).

And as JonC has stated - these issues are indeed litigated in 1983 cases. So despite the interesting rhetorical wordmaking of the Maryland court, the answer would have been crafted in a case by case basis with a mindful eye, in 1983 cases, to the qualified immunity standard.

(BTW, JonC, the qualified immunity standard would make these outlier cases a moot point - regardless of the way the cases end up turning out in those fantastic situations, qualified immunity will attach).

The only reason the exclusionary rule shouldn't apply in knock and announce issues is that the availability of the evidence is too remote from the CONSTITUTIONAL harm (nobody has a constitutional right to destroy evidence rightfully seizable by a warrant to avoid conviction), and that unlike in search and seizure cases the evidence would have been obtained absent the police misconduct.
9.11.2006 12:32am
Wintermute (mail) (www):
Awww, Orin, on second thought, I may have been unfair to you; and I apologize if so. We go back too far on here for me to be flippant toward this blog or to you.

I just don't want to see more police officers die at the hands of citizens defending their residences against unannounced intrusions, in the name of the ill-managed "War on Drugs." For such to happen with greater frequency would undermine not just the Fourth Amendment but the Second Amendment also, all in the name of preventing people from dosing themselves. A cop's life is more precious than that, to me.

Now don't ask me what I think of Antonin Scalia....
9.11.2006 12:40am
Gumbey (mail) (www):
As a cop who has entered many homes with a warrant, I think Hudson was good law. It's good to see the court waking up to reality. The fifteen second rule was ludicrous from the outset.

As for officer safety, we are or should be prepared when we enter. If we take fire, we should be aware of that possibility, and take necessary precautions. If we've done our homework and it is believed the suspect is armed with serious firepower or there are multiple bad guys in the house - who are known to shoot - that's why we have SWAT.

John
9.11.2006 12:59am
Wintermute (mail) (www):
BTW, I invited Mr. "Gumbey" to give the police side of this issue on the VC. He is an amazing law enforcement data manipulator for my county and subject of a Microsoft case study, a 30+ year veteran deputy sheriff, a well-known blogger in my community, and my friend. Please welcome his perspective here, and check out his sites.
9.11.2006 1:15am
Huh:
John, that's IF "we've done our homework." The problem is that much of the time, police haven't done their homework. Or they've studied incorrect information from informants, so that they're entering the homes of people not expecting a swat team. A person in that situation has mere seconds to figure out if he's being invaded by criminals or police.

Hudson doesn't really do anything except encourage police to enter without announcing themselves, putting the officers and many innocent victims in unreasonable danger.

Is it difficult to create a workable standard? Perhaps. But that shouldn't mean people lose of their constitutional rights because there's no longer any meaningful remedy. It means you make a better rule.
9.11.2006 1:15am
OrinKerr:
Gumbey, very glad you've joined us. And Wintermute, thanks for inviting him.
9.11.2006 1:17am
fishbane (mail):
Now, we just need to get Radley Balko on, to discuss police overreach, wrong-door SWAT raids, and the continual stream of isolated mistakes that seem to cause a surprising amout of mayhem.
9.11.2006 1:25am
Gumbey (mail) (www):
Huh, no offense but, you're talking to someone who has been there, done that. I'm not speaking theoretically. As for prior knowledge of the occupants, I've developed a website here in Memphis, TN that is used by over 5,000 law enforcement officers from across the country. It's primary use is to locate people, places and things that we need to investigate crimes. Officers have access to local customer utility records, motor vehicle records, rap sheets, booking photos, etc. If the officers don't use the resources that are available to them, shame on them.

As for other jurisdictions, I am probably retiring soon . . . . Have notebook (and guns), will travel.(G)
9.11.2006 1:28am
amnyc (mail) (www):

The answer depends, of course, upon one's conceptualization of sound...Will we ever be reduced to measuring a knock's decibel level or to evaluating its acoustical carrying power?


To fully evaluate the knock's db level or carrying power, we would need to know such information as the material that makes up the door (or wall) which is being knocked on as well as the nature and contents of the space which the knock resonates in (for example, wood floors vs. carpeting).

There are devices which can be used to obtain this information (assuming the knocking officers do not know that information in advance), but the catch-22 is that the use of such devices may well violate Kyllo v. US (as per Scalia's majority opinion.)
9.11.2006 2:55am
percuriam:
I agree with Hudson. Why should the manner in which the police enters a home to search it pursuant to a warrant be a basis for excluding evidence that was found in the home? Unlike false confessions, physical evidence generally cannot be created (unless planted by the cops) as a result of the failure to knock and announce. And if the manner of execution was unreasonable, why can't the inevitable discovery rule save the fruits of the search? Can't another team go in later by knocking and announcing?
9.11.2006 10:53am
Oren Elrad (mail):
I, for one, had always intepreted the phrase "K&A" the same way OK suggests - as a linguistic convention that conveys the idea of giving fair warning. In that sense, I cannot imagine a trial court having too much difficulty sorting out what constitutes reasonable warning under the circumstances. This need not be the hypertechnical (80 dB for 15 seconds unless the concrete is 12" thick) parade-of-horribles that seems to be carrying the day here.

A second point, addressed in Hudson, was the sort of equivocal tying of K&A to danger to the polce officers. I see no empirical evidence (Gumbey, point me in the right direction) that K&A increases the danger to the officers serving the warrant. It's not unthinkable that some criminals would use that time to arms themselves or attempt flight BUT it's equally plausible that the announcement of police will cause some criminals (or innocents!) to disarm when they might have attacked someone barging through the door without announcement.

My point is that the effect of K&A on officer safety ought to be an empirical, not theoretical, question and that the conclusion should inform our fourth amendment law.
9.11.2006 11:02am
Huh:
Sheesh, Gumbey. You didn't say you had a database. Who needs a constitution when you've got Excel? I'm no officer, but I bet that criminals especially are reluctant to stay in one place too long. Are they diligent about notifying your database when they leave? Or when they switch vehicles? Does your database let new residents know that the prior occupant was a drug dealer?

New standard: As long as we've got a database and some dudes have checked it, it's per se a constitutional search. Now that's a workable standard.
9.11.2006 11:10am
Oren Elrad (mail):
PC: I don't think the point of K&A was evidentiary but rather ties in to the right of the homeowner to surrender peacefully instead of being violently subdued by the police.

If we are to take seriously the sanctity of the home then, even in the face of a judicial warrant, we ought to afford the occupant the right to put his weapons down, put his hands in the air and be taken into custody in a civilized manner.

I personally happen to own a pellet gun that looks for all the world like a .45 - should I now be in fear to be holding it near the front entrance of my home because the police might barge in and shoot me?

I'm not so naive to think that criminals would not abuse such a right but I still believe that a workable system could be arranged. For instance (and this is just off the top of my head so don't count it as a rigorous legal formulation), the magistrate issuing the warrant could simply attach whatever conditions or exemptions on the service of that warrant that are appropriate under the circumstances.

If you can go to the judge with an articulable reason that K&A is inappropriate or dangerous to the police in this cirumstances then she ought to be able to waive that requirement. This ought not to detract from my general proposition state earlier that everybody deserves a K&A absent specific information otherwise.
9.11.2006 11:21am
SimonD (www):
Hudson doesn't really do anything except encourage police to enter without announcing themselves, putting the officers and many innocent victims in unreasonable danger.
Surely Hudson - as a case purely about remedy - doesn't really do anything except discourage appeals that have always been frivolous and are now recognized as such by the denial of supression? And since Hudson explicitly says that knock and announce violations can be addressed by other remedies, isn't it a little conclusory to say how this will change police process on the ground? As I pointed out when the decision came down, supression of the evidence is not the principal factor motivating police to follow K&A:
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," [Hudson][,] slip op. at 7.
9.11.2006 12:41pm
T. Gracchus (mail):
A fair measure of the quality of the inquiries posed by the judge is his suggestion that there is any question about whether a falling tree makes a sound. As long as there it there is air, there will be a sound. The (silly) question has to do with noise. The rest of the queries are just as foolish.
9.11.2006 1:12pm
Huh:
Simon, you're certainly correct in suggesting that officers might well decide for themselves when to follow the constitution and when not to. That they do so through reasonable calculation is not surprising to me. But this scheme leaves much less protection for improperly (or properly) targeted individuals who have seconds to guess at the intruder before either attempting to flee or standing their ground with deadly force.

It leaves all the discretion on one side of the equation. I don't know how opponents of the no knock rule address that. Except to say either mistakes don't happen/aren't significant or "shit happens".
9.11.2006 1:36pm
Gumbey (mail) (www):
Sheesh, Gumbey. You didn't say you had a database. Who needs a constitution when you've got Excel? I'm no officer, but I bet that criminals especially are reluctant to stay in one place too long. Are they diligent about notifying your database when they leave? Or when they switch vehicles? Does your database let new residents know that the prior occupant was a drug dealer?

Well, Huh, I don't just have A database, I have many, and those databases get updated daily. An officer who does his/her homework before hitting a warrant SHOULD be able to find out whether or not the person they are looking for lives at the address or not. My "database" has helped put thousands of criminals in jail, and helped keep officers safe by giving them timely information.

If an officer hits a warrant without doing the requisite background work, they shouldn't be working in law enforcement. Additionally, data isn't the only resource an officer has. We also gather intel from other sources including surveillance and interviews.

Back to the subject of K&A, it has always been a ridiculous rule. It has never been about officer safety, it's been a 15 second head start to the toilet with the dope! Thank God we have finally gotten past that insanity.
9.11.2006 1:45pm
David M. Nieporent (www):
Hudson doesn't really do anything except encourage police to enter without announcing themselves, putting the officers and many innocent victims in unreasonable danger.
The problem is that this assumes that the police exist in a vacuum, rather than as part of a larger law enforcement system. Assume the ruling was the opposite: that all evidence seized in violation of K&A must be suppressed. Given that there's no bright line between violating and not violating the rule, there would be increased suppression, initially. Which would lead to police seeking out (and rubber-stamp magistrates granting) increased no-knock warrants, thus licensing the police to kick in doors.
9.11.2006 2:07pm
HIghlights:
Knock, knock!

Who's there?

Police!

Police who?

Police let us in; it's cold out here.
9.11.2006 3:23pm
Dan Hamilton:
In Texas the law is simple. If the Police use excess force in the application of a warrent the person being served has the right to defind himself upto and including lethal force. So if the Police do a no knock or a dynamic entry or whatever into your home and you are NOT a felon or someone else this might be justified with and you SHOOT and KILL the police you have not commited a crime.

The only problem is that in the entry the Police let alone SWAT just KILL anyone who resists. When it is over and they had the wrong house or whatever they are REAL sorry but nothing happends to THEM. They can't even be sued with any hope of winning anything.

I am sorry but there is amost NEVER a need for Dynamic entry, Fast Entry or any of the other BS. If there are people inside KNOCK until you get an answer. ANOUNCE that you have a Warrant and that they are to open up. If they still don't then let SWAT or whoever do their entry.

Dynamic entry and Fast entry are done for the SAFTY OF THE POLICE and for no other reason. It is believed to be the safist way to take the bad guys down. Shock and Awh you know. It also take the good guys down when a mistake is made and far to many mistakes are made.
9.11.2006 3:48pm
Matt Caplan (mail):
@SimonD


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,"



This is the federal government's position (in its capacity as amicus), almost perfectly. See oral argument (the first one, 1/9/06) at p.60, lines 8-14:

JUSTICE SOUTER: Wait a minute. What is this incentive inherent in the circumstances?

MR. SALMONS: It's not to be mistaken for an intruder and shot at, Your Honor.

Of course, Souter disagrees.

JUSTICE SOUTER: Well, it doesn't seem to work.

MR SALMONS: Well --
9.12.2006 9:31am
Oren Elrad (mail):
So if the police happen to conduct a no-knock warrant on my home and I plug a few before I realize they are cops (I live in a high crime neighborhood where, incidentally, quite a few gangs have taken to wearing SWAT clothing and conducting their burglaries while pretending to be police) do I still get fried??

Also, Gumbey, your two-faced argument finally comes to light. First we hear about officer safety and how K&A harms it and since we are all reasonable people and would like the cops to be safe, we go along. Then, once it's setteld, we hear another reason involving the destruction of evidence.

I support no-knock for the former, but not the latter reasons.
9.13.2006 8:19pm