Outside the Beltway

Knock and Announce Not Subject to Exclusionary Rule

James Joyner · Friday, June 16, 2006 · 7 comments

The Supreme Court yesterday ruled that evidence gathered through illegal “no knock” searches did not necessarily need to be excluded from trial if the search was otherwise legal.

NYT’s Linda Greenhouse:

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 despite that constitutional violation, the Supreme Court ruled on Thursday. The 5-to-4 decision left uncertain the value of the “knock-and-announce” rule, which dates to 13th-century England as protection against illegal entry by the police into private homes.

Justice Antonin Scalia, in the majority opinion, said that people subject to an improper police entry remained free to go to court and bring a civil rights suit against the police. But 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.”

WaPo’s Charles Lane:

The Constitution does not require the government to forfeit evidence gathered through illegal “no knock” searches, the Supreme Court ruled yesterday, in a far-reaching ruling that could encourage police with search warrants to conduct more aggressive raids.

The 5 to 4 decision broke with the court’s modern tradition of enforcing constitutional limitations on police investigations by keeping improperly obtained evidence out of court. The “exclusionary rule” has been imposed to protect a series of rights, such as the right to remain silent in police custody and the right against warrantless searches. But the broadly worded majority opinion by Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., suggested that the nation has moved into a new era of improved policing in which such strong medicine may no longer be justified.

[…]

At issue in yesterday’s case, Hudson v. Michigan , No. 04-1360, was the “knock and announce” rule, which has deep roots in Anglo American law. In 1995, the court made it part of what defines a “reasonable search” under the Fourth Amendment, without saying how it should be enforced.

[…]

Before yesterday’s decision, police executing a search warrant in most jurisdictions had to worry that they might lose a case if they did not first knock on the door, announce themselves and wait a reasonable time for a response before forcing their way in. Now, unless state law says otherwise, the most they would face is administrative discipline or a lawsuit for damages. Civil liberties groups and defense lawyers had argued to the court that those deterrents are far too weak to enforce the “knock and announce” rule, which, they argued, is often all that stands between an innocent citizen and an errant SWAT team.

Lyle Denniston has a superb discussions of the implications of the case on the exclusionary rule more broadly.

The bare holding of the case is simple: if police have a warrant to search a home, and they enter in a way that violates their constitutional duty to knock first and announce themselves, the evidence turned up in the search can be used in a criminal prosecution.

[…]

First, the Court made clear — with an emphasis not previously employed — that it will insist on a demonstration that the interest that a constitutional right serves will, in fact, be directly advanced by barring the evidence obtained from a violation of that right. Thus, it would not matter that the violation itself was the source of the evidence, if the right would not gain from excluding the evidence. As Justice Scalia summed up that point: “What the knock-and-announce rule has never protected…is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” Thus, at least in the context of the knock-and-announce rule, a Fourth Amendment violation that makes a search invalid will not keep out the resulting evidence.

Kieran Healy argues that Scalia is “happy to set his originalism aside” when it suits his public policy preferences. Kevin Drum, who sees this ruling as “viscerat[ing] the Bill of Rights a bit further,” agrees, saying this demonstrates “why I decline to take originalism seriously.” Orin Kerr is less sure but at least amused by the concept. “Am I right that Scalia is saying that the meaning of the Fourth Amendment can change over time as the staffing of police departments and public interest law offices changes? The Constitution — It’s alive!”

I would note, however, that the Exclusionary Rule is a judicial invention (Weeks v. US) that was applied on a large scale (i.e., applicable to states and municipalities) only relatively recently with Mapp v. Ohio (1968). It is noteworthy, too, that while Greehouse points out that the “knock and announce” requirement goes back to the earliest conceptions of citizen rights under the Common Law, the society which gave us the Common Law, England, does not have an exclusionary rule and, indeed, their judges consider punishing society for the actions of over-eager cops absurd.

Radley Balko quite eloquently describes the reasons we don’t want cops, even those with warrants, kicking down doors:

the terror and fright associated with having once door beaten down in the middle of the night by armed, masked men; the unimaginable predicament a homeowner is unwillingly put in when he must decide if the intruders are cops or criminals, and whether to confront them or succumb to them; the injury and death that often transpires (to police, suspects, and bystanders) as a result; the right to assume one’s home is his castle and place of asylum, and the idea that one should have the opportunity to answer police and avoid the fright and property destruction resulting from a forced entry; and the fact that the perilousness of the situation can lead to police themselves mistaking harmless gestures on the part of suspects as threatening or menacing, again resulting in unnecessary death and injury.

Ron Coleman believes that excluding evidence so obtained is the only realistic way to protect that right. Dean Esmay, answering in the comments, suggests some sort of points system for cops. Scalia suggests civil penalties. Ultimately, I’m unsure how well any of these penalties work.

Indeed, the cop in this case had every reason to believe the Exclusionary Rule would apply and violated the law anyway. Thus, whatever of the violations Balko describes that the accused experienced occured. The question, then, is what to do about it? Should a criminal be allowed to go free even though there was nothing unreasonable about searching his home per se, including the fact that a warrant had been properly issued, simply because the cop kicked down the door? It’s far from clear to me that makes any sense.

UPDATE: To be clear, it seems to me that our public policy interest in preventing “no knock” searches is in the fact that the cops are often at the wrong house or otherwise incorrect in their presumption that they are dealing with violent criminals and, to a lesser degree, lessening the chance that frightened criminals or nervous cops will instinctively start a shootout that might otherwise have been avoided. There may or may not be better ways to enforce that than the Exclusionary Rule.

There is zero public policy interest, however, in releasing criminals because the lack of knocking did not give them sufficient lead time to destroy the evidence for which a valid warrant was issued.

UPDATE: For a dissenting view, see Steve Verdon’s post Cato’s Mark Moller on Hudson v. Michigan.