Exclusionary Rule Wounded By SCOTUS
By Justin Gardner | Related entries in Supreme Court
Yes people, the cops don’t have to knock and announce anymore when they have a warrant. And to the best of my knowledge, the exclusionary rule has been part of the fourth amendment for about 100 years now. Knock and announce has been part of that for about as long.
I’m sorry, what does the right-wing say about activist judges? Of course, it’s okay in this case because it means we’re putting more people in prison, not letting gays get married…
And just in case you think I’m being dramatic about the “activist” part, read this passage from the opinion:
We cannot assume that exclusion in this context is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.
Hmm…yeah…so why are we supposed to think things are better now? Well, because cops are more “professional” now.
Moreover, 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. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.
Heh…okay…
The Supreme Court’s 5-4 ruling on Thursday in the Michigan “knock-and-announce” case raises significant new questions about how sturdy the “exclusionary rule” is as a remedy for constitutional violations by police — especially, but not solely, Fourth Amendment violations. It also suggests — perhaps more strongly — new doubt about the continuing validity of the “knock-and-announce” rule. Those implications seem to emerge in some of the language used, and certainly between the lines, of the ruling in Hudson v. Michigan (04-1360). The three opinions in the case can be found here.When the case was argued on May 18 (the second of two arguments in the case this Term), it seemed clear that a major Fourth Amendment ruling was in the making. The final opinions justify that impression.
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.
Listen, the cops are more “professional” now, because they have lawyers come in and tell them exactly where the gray areas are in search and seizure laws so they can push the boundaries as far as possible without breaking the rules. So this new “professionalism” that the SCOTUS holds up as being a reason modern police don’t have to obey knock and announce is pretty intellecutally dishonest. In fact, cops know more ways how to violate the law and still have things seem legal now.
You want to know what’s gonna happen? More people aren’t going to go to jail, but I’m guessing that more cops are going to get shot. Because if people think their home is being invaded, they’re going to open fire. And guess what? The suspect now has a valid excuse.
Slippery slope…here we come…
Also, more from CNN.
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June 15th, 2006 at 10:27 pm
The Evolving 4th Amendment
The Supreme Court just issued a 5-4 decision (along the normal lines) in Hudson v. Michigan. The opinion looks to dramatically restrict the potency of the exclusionary rule, which has served as a check against police excesses since the 1960s. What th…
June 15th, 2006 at 11:26 pm
The question here is: Is the social costs of fewer convictions (from evidence obtained unconstitutionally) a price too high to pay for the deterrence effects of the exclusionary rule?
With the (perpetual, infinite) “War on Drugs”, yes, absolutely, the social costs are far too high. And it really has very little to do with professionalism or competence of law enforcement. The “War on Drugs” simply taxes our civil liberties too much as it is and the practical effect of this ruling will be to weaken cops incentive to be constitutionally aware. As a drug user and one with a fantastic number of barely legal firearms in his house, this causes me distress.
But, the fact is – cops can already kick in my door before I can either get to the toilet or the Mini-14. My constitutional right to have cops knock expires a second before the reasonable amount of time it takes me to flush the 20 sack down the kamode. That is what I read in this case. (someone, meredith, correct me if I’m wrong on that).
This is wrong – the issue is remedy. You still have the same constitutional right, but not the exclusionary remedy, which is not the ONLY remedy, but the only one that will keep you out of jail. There is still a federal statute that allows one to sue LEO for violations of your constitutional rights which SCOTUS points out.
JG, as far as your “activist” thing please tell me when SCOTUS held the exclusionary rule applied to voilations of the no-knock searchs with a valid search warning? What case did this decision overrule? Shifting winds do not equate to judicial activism.
June 15th, 2006 at 11:37 pm
This means I’m going to have to stop burning the fag in the privacy of own home. These people suck!!
June 16th, 2006 at 10:10 am
So you’re an English smoker then?
June 16th, 2006 at 11:03 am
Thanks, Dos Peros, for the insight into the practical side of this knock-knock issue. Your comments about burning the flag indicate that you see come common thread here. Hmm.
And forget the “slippery slope” malarkey. With Republicans/conservatives controlling the Senate, House, majority of state legislatures, Supreme Court — and a president who doesn’t obey the law anyway — our civil liberties are about to fall off a cliff.
Does anyone have a list of earlier close Supreme Court decisions that we can expect to be overturned by our new activist/conservative/Christianist court?
June 16th, 2006 at 12:34 pm
[...] Justin Gardner [...]
June 16th, 2006 at 12:51 pm
Lets see, all this banter about “civil liberties” because the police no longer have to knock on your door, although DosPeros covered it well.
While I can see both sides here, we have two scenarios.
You are innocent, the cop bust down your door. You’re scared out of your wits and annoyed as hell, but the police find nothing and leave.
OR
You are guilty and you’ve got your big stash hidden away, with your gun in the other room. The Cops enter and instead of a shootout or a crack-flushing, you apprehend the suspect and neither he nor the police get hurt.
In short, I can see how this can have both positive and negative effects, but quite frankly I think some annoyed homeowners is a small price to pay for the safety of both police and criminals caught off guard.
As to “not letting gays get married”, the court in Massachusetts enacted an interpretation of the Constitution that SHOT DOWN ALL the state laws regarding marriage, effectively removing the right of the state to regulate and decide what kind of marriages they allow, with what benefits, and for what reasons. The court argued that the Constitution says the states have no right to regulate marriage in their own state. Those single-digit in number, unelected hacks on one court are trying to decide who marriage should be applied to for the whole state, and their supporters are crusading for the entire country to follow THEIR ruling.
What we have here is an interpretation of the law that says “police don’t have to knock on your door, but they are still bound by the 4th Amendment “unreasonable search and seizure” passage, requiring them to have a warrant.
This is as opposed to a constitutional amendment that was designed to put the power back into the hands of the people, and that Amendment would have required support from The majority of every possible representative body in the US of A. For all this talk about an oppressive amendment, it needs the support of the representatives of at least 200 million people, whereas a few hacks on the Massachusetts court decided to pronounce their judgement from Sinai on the other 99.999% of the population that isn’t in Massachusetts wearing black robes.
“Activist judges” indeed, Justin. Thats the difference between the judicial branch and the legislative branch. The Judicial branch operates outside the people for the people’s rights. The Legislative branch operates in direct representation of the people to make sure the executive and the judicial branches don’t circumvent the right of the people to determine how their government should run.
June 16th, 2006 at 2:49 pm
Brian,
For one thing, I’m not clear on why or how gay marriage has anything to do with the discussion about the Exclusionary Rule. The decision by the Supreme Court in Hudson is judicial activism because it undercuts over 100 years of legal precedent. If you have them, I would like the citations and/or names of these Mass. cases so I can read them myself. It’s not possible for one state supreme court ruling (or even multiple rulings) to force the entire country to adopt a certain law. Maybe I’m out of it today, but I don’t even really understand what your argument about the Mass. cases anyway.
In any event, it is possible to have judicial activism from conservatives and liberals alike. However, the term “judicial activist” is a little intellectually dishonest anyway because sometimes judges have to do that as part of their job. Usually they follow precedent, but sometimes things get overruled and we have new rules. If people don’t like it, the legislative branch can amend statutes or make new ones to correct it. Remember that judges merely interpret laws; they don’t make or enforce them.
June 16th, 2006 at 2:59 pm
To begin, I’ll just put it out there that I, in fact, make my meager living prosecuting cases in state court on appeal. And, just started a case involving the “exclusionary rule” this week, and I think this is a very scary Supreme Court ruling.
Sure, it would make my job a lot easier if every area of the law went, “sure you have a right, but if its violated, we’re not going to do anything about it.” My guess that the requirement to knock will become so hollow and meaningless now that eventually it will become a laughable anachronism, such as, “remember back in the day when the police actually stopped and knocked before storming into houses unexpectedly? ha, oldtimes.”
The exclusionary rule is tough, it’s not meant to vindicate the rights of the accused at all, but rather as a way to keep the power of the state in check. Sure, it’s easy to point to the 500 pounds of individually packaged crack rocks as overwhelming evidence of guilt and argue that the failure of the police to politley tap on the door a few seconds before coming in and seizing it should not mean that Mr. Tons-o-Crack should get off. But what about the next guy? That’s what the exclusionary rule is…ahem, was…about. Protecting the public at large, by ensuring the police have heavy, devastating consequences if they don’t follow the rules.
This isn’t the kind of thing to argue on a case-by-case basis, because the exclusionary rule is not meant to be a remedy for a violationn of an individual’s rights, but for an abuse of power. The remedy does not absolve a person who was not afforded her rights based on innocence, but rather punishes the state for overstepping its bounds. Or at least it did…
This should really make people stop and think. Sure, some people may run to the toilet to flush their stash when they here a knock and “it’s the police, open up”, but some may move their children to another room, god-willing put on some clothes, or engage in some other two-second activity that helps them hold on to a shred of human dignity. Remember, not everyone inside a home the police get a warrant for is a criminal, or even a suspect, or even involved.
Of course this may just be bringing into line home invasion with the government’s other favorite invasive hobbies of late, they don’t have to knock first before tapping our phones or reading our e-mails, so why not just let them come on into our homes, at least they have to still get a warrant for that — for now.
June 16th, 2006 at 4:14 pm
Dos,
You’re right that the opinion just changed the remedy, but without that remedy, the cops basically don’t have to knock anymore. Civil suits against them are a joke. Sure, a person CAN sue the government, but they shouldn’t have to. Plus, I’ve been involved on some of those cases, and they are quite a hardship for the plaintiff. The police officers, department and city government usually all get named as defendants, and they tend not to like that, so they intimidate witnesses and threaten the plaintiff and stuff. As far as the “activist” judge thing, it’s true that the exclusionary rule was not a mandatory remedy for violating the knock and announce rule. However, the exclusionary rule is never mandatory for any 4th amendment violation. For about 100 years it has been the law that the exclusionary rule could be used as a remedy, and this case overruled all of that precedent. And, if you read the opinion, it seems clear to me that the justices are definitely opening the door for future attacks on the exclusionary rule and other 4th amendment law. As I said before, it has never been the rule that the exclusionary rule is mandatory because there is always a balancing test the court can use to determine if exclusion is appropriate. Therefore, why did the SC need to take the case? The answer is they didn’t. They wanted the case, and it is clear that they intend to continue to eat away at the 4th Amendment.
June 16th, 2006 at 5:24 pm
[...] In this post yesterday at Donklephant, “Exclusionary Rule Wounded By SCOTUS” one more long-term right has been eroded, possibly eliminated, to the detriment of our “democratic” society. We’re about to see many, many more police searches on our homes performed without a knock or disclosure. This “violates” a long held principle of over 100 years and appears to be a direct result of what is becoming known as a Supreme Court that has been “weighted” in a certain direction. [...]
June 16th, 2006 at 5:47 pm
You know, I consider myself a civil liberties fanatic, but this just doesn’t bother me for some reason. The police have a warrant, which satisfies the main concern. All we’re debating about is whether they have to knock, and how long they have to wait before entering.
There are practical concerns, like “who pays for my broken-down door” and Justin’s armed homeowner problem. But those aren’t civil liberty questions, in my mind.
I appreciate Meghan’s explanation, but it still doesn’t persuade me.
I feel like I’m in Opposite World…. ;)
June 16th, 2006 at 7:03 pm
Meredith,
Justin went down the “judicial activism” meme. You certainly can’t fault me for addressing it.
Quote:
“I’m sorry, what does the right-wing say about activist judges? Of course, it’s okay in this case because it means we’re putting more people in prison, not letting gays get married…”
He posted it, I addressed it. THAT is what gay marriage as an example of judicial activism has to do with this topic.
As to “Court decisions never overriding all state laws”. You’ve heard of Roe v. Wade, right? Overturned all 50 of the state’s laws on abortion in favor for the courts “constitutional finding”.
And lastly, it is not “activism” just because it overturns a precedent. Brown v. Board of Education overturned a precedent that existed at this countries founding, but I dare anyone to tell me that Brown was “activism”, or if they do, explain to me how all forms of activism are somehow wrong simply by nature of being activism.
Besides, if what I’ve heard this means the police DON’T HAVE TO knock, not that they CAN’T. Chances are if they have dealt with you before and know you are a generally armed citizen, they’ll have more tact about it.
This isn’t like that emminent domain garbage last year. They aren’t rewriting the constitution to mean something other than explicitly stated, they are stating the method to enforce that amendment does not require a polite knock on your door. They still havw no right to search and seize your home or other possessions without a warrant.
June 16th, 2006 at 11:34 pm
I agree with everything you said Meredith. In fact, if I was a prosecutor, I would with a straight face argue against the exclusionary rule where there was no warrant, but a very large quantity of drugs or other evidence of serious criminality was discovered based on this case. Although the opinion does deal extensively with the exaggerated “attentuation” of the constitutional violation and the discovery when there is a valid search warrant. It goes on about “causalty” of the violation relative to the discovery forever. Isn’t there an “inevitable discovery” rule that I’ve seen on Law & Order that has the same effect of overcoming the exclusionary rule? It seems to me that the court relied on much the same analysis.
June 18th, 2006 at 1:37 am
Brian,
Roe was a US Supreme Court case, and they do set precedent for all the states, except that state supreme courts still have a chance to fight it. What I am talking about is your comment that Mass. supreme court was acting (or could act as) precedent for the entire country. I stated that no one or more state supreme court decisions are binding upon the entire country. And as to Roe, you try to make it sound like all 50 states had laws against abortion, and the SC came along an overturned the entire nation. That’s not true.
I dare say that Brown was activism. And it was much needed. All forms of activism are not bad just because they’re activist. I, as a liberal am not concerned about being labeled as an “activist.” People in this country who worked to end slavery were activists. Also, people who campaigned for women to have the right to vote and people who are concerned about our human rights. Activists are also passionate about preserving human life, or preserving a concept of marriage. Many times in this country, our courts have pushed us in the right direction. The SC guided this country towards fair labor laws, equal rights for african-americans, freedom of religion and free speech. I sometimes disagree with the way the SC sometimes entangles its opinions with circular arguments, intellectual dishonesty, and good old fashioned bias. However, for the most part, the SC helps the country move forward when it needs a push. Activism can be a great thing, and I don’t personally think we should completely condemn it. I think conservatives are using that term to scare people with regard to liberal policies. They want everyone to believe that liberal judges are making up rules to serve their special interest groups or to force their liberal agendas on the entire nation. Liberal judges don’t engage in that behavior any more or less than conservative judges do.
I know this has been a subject before, and I have explained how the eminent domain case did not overrule anything, and therefore, it certainly did not rewrite the Constitution.
July 10th, 2006 at 10:09 am
As usual, you liberals seem to tie everything you disagree with to some “right-wing” conspiracy. It’s kinda funny (and somewhat sad) to watch. You seem to miss a pretty important point regarding the “no-knock.” The cops already have the warrant for the location to be searched, so they are going to search. Also, the warrant gives the authority to the police to go on the property. The only thing that the “knock” component allows for is a “warning” for the property owner. Could this warning give this suspect time to destroy evidence? Perhaps…