Petitioner's conviction for drug possession is affirmed over his claim that evidence seized following police's premature entry of his home should have been suppressed since a violation of the "knock-and-announce" rule does not require suppression of evidence found in a search.
-- Hudson v. Michigan (Findlaw summary)
[Case citations and cites to other parts of the opinion are removed from the below excerpts without notation.]
Another re-argued case, another in which Justice Alito probably was the deciding vote. It was 5-4 with Justice Breyer writing a forceful and well argued dissent. Justice Kennedy, doing his O'Connor impression, wrote a concurring opinion trying to temper the breadth of the opinion. He didn't join a section that tried to fit the ruling, and thus put it on firmer precedential ground, into past rulings.
This gave it a more new rule flavor. He reaffirmed the importance of the knock and announce rule: "The Court's decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law's concern." And, the majority touched upon them such as "protection of human life and limb," "the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry," and "privacy and dignity that can be destroyed by a sudden entrance."
The competing costs? Well, though the case is only about "knock and announce" cases (those where warnings would be dangerous, such as armed suspects), the rundown has an wider feel to it, as if the majority is not a big fan of the exclusionary rule generally:
The costs here are considerable. In addition to the grave adverse consequence that exclusion of relevant incriminating evidence always entails (viz., the risk of releasing dangerous criminals into society), imposing that massive remedy for a knock-and-announce violation would generate a constant flood of alleged failures to observe the rule, and claims that any asserted Richards justification for a no-knock entry had inadequate support. The cost of entering this lottery would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card. ... Another consequence of the incongruent remedy Hudson proposes would be police officers' refraining from timely entry after knocking and announcing.
Kennedy also raised the possibility that "if a widespread pattern of violations were shown, and particularly if those violations were committed against persons who lacked the means or voice to mount an effective protest, there would be reason for grave concern." This is notable, since the whole point for exclusion is that alternate remedies are hard to come by. As Justice Breyer's dissent noted, even the state admitted "in cases like the present one ..., damages may be virtually non-existent." And, he has statistics to prove it. Justice Scalia is less concerned:
But ignoring knock-and-announce can realistically be expected to achieve absolutely nothing except the prevention of destruction of evidence and the avoidance of life-threatening resistance by occupants of the premises--dangers which, if there is even "reasonable suspicion" of their existence, suspend the knock-and-announce requirement anyway. Massive deterrence is hardly required.
The "absolutely nothing" comment in connection to "avoidance of life-threatening resistance" sort of rubs one the wrong way, does it not? What if -- now surely this never will happen, but still ... -- they are not "reasonable?" The majority also noted that there were other situations where only civil suits realistically was the only remedy -- nothing to brag about, even without ignoring that over a century (back to the 1880s) of precedent that did provide a remedy in search and seizure cases. Finally, the fact that the remedy will only be used in limited cases is not really a great reason to suggest it is not necessary, or rather, too much of a risk to public safety.* As with the recent whistleblowing opinion, however, the Bushian theme that even defending against claims of official misconduct pops up once again. Justice Breyer has a telling rejoinder:
Indeed, why did the prosecutor not argue in this very case that, given the likelihood of guns, the no-knock entry was lawful? From what I have seen in the record, he would have won. And had he won, there would have been no suppression here.
That is the right way to win. The very process of arguing the merits of the violation would help to clarify the contours of the knock-and-announce rule, contours that the majority believes are too fuzzy. ... Regardless, if the Court fears that effective enforcement of a constitutional requirement will have harmful consequences, it should face those fears directly by addressing the requirement itself. It should not argue, "the requirement is fine, indeed, a serious matter, just don't enforce it."
Why indeed? The reason is obvious -- it wanted to do away with a troubling nuisance, knowing that even if they lost, comparable cases would offer alternative ways to obtain the materials. The point of such cases are the more in between situations, where due care brings fruit as well as a general feeling of security / trust of authority. There will be relatively few knock and announce cases where police misconduct is present, but the extreme nature of the procedure underlines the need for special care. A person has the right to protect one's home ... a misplayed knock and announce can be lethal to both sides. Property damage and threats to one's dignity (or those of minor children who can be scared shitless ... how about poor little Elian?) is the least of one's problems. To steal a phrase, "The costs here are considerable."
Thus, it is somewhat interesting that though the majority made it clear the case was purely about the remedy (state admitted to a violation), Justice Kennedy confused things a bit by saying: "In this case the relevant evidence was discovered not because of a failure to knock-and-announce, but because of a subsequent search pursuant to a lawful warrant." But, the case began with the clear statement -- after gratuitously saying the drawing lines (e.g. proper time to let inhabitants voluntarily answer door) in this area is troubling --- that the state admitted the violation. A knock and announce violation -- in other words, "the manner" the seized material was obtained.
The assumption, underlined by the majority opinion, appears to be that they had the right to search after all. They could have just as easily, or relatively so, obtained it by following the law. Well, that is sort of the point. As noted by the dissent, if a warrant is for a specific day, does this mean they can go the day before? The statement, which as noted is a bit confusing and tacked on, appears to invite some sort of narrowing while the majority itself (matching its author) welcomes a more clear-cut rule. I put that aside. Overall, removing a core remedy against misuse of a potentially dangerous (as various tragedies underline) and probably overused (no expert, but some have so noted) practice is an unfortunate if limited result. [See also, here.]
One without Justice Kennedy would probably be even broader. As to Justice Alito, given Kennedy was a bit hesitant to join the opinion in full form, it is dubious if Justice O'Connor would have. She was a pragmatic case-by-case sort of justice and likely not to support such a clear rule. Some, including liberals, ridiculed her for such fine tuning. Still, especially in the Fourth Amendment area (with its "reasonableness" requirement), it had benefits. Messy to be sure, but what is more messy and case specific than Fourth Amendment law? Some judges might not like it for just that reason, but just leaving things to the executive is not quite our system. And, non-productive safeguards to such unilateralism (e.g., congressional oversight) is just a tad bit of a copout.
Yes, I am looking beyond the contours of this case/area, but writ small or large: "The costs here are considerable."
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* It bears mentioning that Scalia tossed in the argument that police departments are much more professional these days, so there is a less of a need for exclusionary rule protections of this sort. This is a bit ironic, since studies have shown that court safeguards encouraged such professionalism. Thus, we have a situation like those who want to remove union protections since workers have it great these days vis-a-vis the past.
Anyway, this particular type of search is relatively new, especially with modern police resources and funding encouraging SWAT teams and so forth. So, it has a bit of a unique flavor to it in a notable way.