Saturday, June 17, 2006

Where Are the Marines When You Really Need Them?

We could have used some Marines at the Supreme Court on Thursday. That's the day when five men in black robes decided to deal the Fourth Amendment another body blow.

The Supreme Court made it easier Thursday for police to barge into homes and seize evidence without knocking or waiting, a sign of the court's new conservatism with Samuel Alito on board.

The court, on a 5-4 vote, said judges cannot throw out evidence collected by police who have search warrants but do not properly announce their arrival.

It was a significant rollback of earlier rulings protective of homeowners, even unsympathetic homeowners like Booker Hudson, who had a loaded gun next to him and cocaine rocks in his pocket when Detroit police entered his unlocked home in 1998 without knocking.

The court's five-member conservative majority, anchored by new Chief Justice John Roberts and Alito, said that police blunders should not result in "a get-out-of-jail-free card" for defendants.

Dissenting justices predicted that police will now feel free to ignore previous court rulings requiring officers with search warrants to knock and announce themselves to avoid running afoul of the Constitution's Fourth Amendment ban on unreasonable searches.

"The knock-and-announce rule is dead in the United States," said David Moran, a Wayne State University professor who represented Hudson. "There are going to be a lot more doors knocked down. There are going to be a lot more people terrified and humiliated."

The case is Hudson v. Michigan.

The New York Times condemned the ruling on its editorial pages yesterday.

... Since 1914, the Supreme Court has held that, except in rare circumstances, evidence seized in violation of the Constitution cannot be used. The exclusionary rule has sometimes been criticized for allowing criminals to go free just because of police error. But as the court itself recognized in that 1914 case, if this type of evidence were admissible, the Fourth Amendment "might as well be stricken."

The court ruled yesterday that the evidence could be used against Mr. Hudson. Justice Antonin Scalia, writing for the majority, argued that even if police officers did not have to fear losing a case if they disobeyed the knock-and-announce rule, the subjects of improper searches could still bring civil lawsuits to challenge them. But as the dissenters rightly pointed out, there is little chance that such suits would keep the police in line. Justice Scalia was also far too dismissive of the important privacy rights at stake, which he essentially reduced to "the right not to be intruded upon in one's nightclothes." Justice Stephen Breyer noted in dissent that even a century ago the court recognized that when the police barge into a house unannounced, it is an assault on "the sanctity of a man's home and the privacies of life."

If Justice Sandra Day O'Connor had stayed on the court, this case might well have come out the other way. For those who worry that Chief Justice John Roberts and Justice Samuel Alito will take the court in a radically conservative direction, it is sobering how easily the majority tossed aside a principle that traces back to 13th-century Britain, and a legal doctrine that dates to 1914, to let the government invade people's homes.

Orin Kerr notes the irony rank hypocrisy in Justice Scalia's distinctly non-originalist argument that the availability of civil litigation and advances in police professionalism have made Fourth Amendment protections against use of tainted evidence no longer relevant. Kerr quotes from Scalia's published opinion:

Congress has authorized attorney's fees for civil-rights plaintiffs. This remedy was unavailable in the heydays of our exclusionary-rule jurisprudence, because it is tied to the availability of a cause of action. For years after Mapp, "very few lawyers would even consider representation of persons who had civil rights claims against the police," but now "much has changed. Citizens and lawyers are much more willing to seek relief in the courts for police misconduct." ...

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities ... but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. ... Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. ... Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. ... 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.

and then asks:

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!

Steve Verdon responds to the "Why should we let bad guys go free just because the police made a technical error?" argument:

Great, so evidence found in no-knock raids is just fine. Technically, these kinds of searches are illegal and the usual response by the courts is: sorry the evidence isn't admissable in court. The benefit to society at large is: the cops have to play by the rules.

Think about that last one for a few minutes. It says, "Playing by the rules is no longer necessary. Want to use more no-knock raids? Go right ahead." The problem is that the police, like the rest of us, make mistakes. Sometimes these mistakes result in very bad outcomes which Radley Balko has documented (1, 2, 3, 4, 5, 6, 7, 8, 9, 10) The benefit of getting the police to "play by the rules" protects us all. Weakening the incentives to have the cops play by the rules puts all of us in more danger. First we had Kelo now Hudson. Pretty soon the only thing we'll be "free from" are a couple of gay guys getting married.

Jill over at Brilliant at Breakfast has more on police mistakes:

For those tempted to parrot the talking point that if you have nothing to hide, you have nothing to worry about, ask Philip Petronella. Or ask Roy and Belinda Baker. Or ask Sharon and William McCulley. Or ask Rodolfo Celis. Or Loraine Adams, whose 61-year-old husband was shot to death by police during a drug raid on the wrong house. Or Lloyd Miner. Or any of the many other people who have found themselves staring down the barrel of a policeman's gun in a wrong-house search, whether our privacy rights should be so summarily dismissed.

Lindsay Beyerstein has a very lucid and simple explanation for why the knock-and-wait requirement is so crucial:

The "knock-and-announce" rule is supposed to guard individual privacy and dignity. We don't want to live in a society where the police can burst into our homes unannounced. Innocent people shouldn't live in fear, as they do in many dictatorships, that the cops could bust in at any moment.

It's not such a hard concept. You're a free and equal citizen, innocent until proven guilty, minding your own business in your private residence. If the cops want to enter your home and search your property, they have to ask you first. If they've got a warrant, it's an offer you can't refuse, but they do have to ask.
We all have the right to be secure in our persons, houses, papers, and effects against unreasonable search and seizure. Knock-and-announce has been integral to our definition of a reasonable search decades. The State of Michigan concedes that arrested man's rights were violated by the no-knock.

Throwing out illegally gathered evidence advances the rights of the arrestee and everyone else by making us more secure by deterring illegal searches in the future.

The police want to convict bad guys. If we throw out evidence gathered from unreasonable searches and seizures, the police will be less likely to search us in unreasonable ways, lest they lose precious evidence.

Publius takes a different view:

First, I think people are overreacting a bit to Hudson's result. Some background on the exclusionary rule will help put it in perspective.

First, the exclusionary rule is not a right. It's a remedy. For instance, let's say the police barge into your house and see the blow, assault rifle, kiddie porn, and emails from Ken Lay sitting on your table. For you to be convicted, this contraband must be admitted into evidence. Otherwise, there is (logically speaking) no factual foundation for your conviction. To be grossly general for now, the exclusionary rule "excludes" this stuff from being admitted as evidence if the police violated your Fourth Amendment rights to get it. Thus, the exclusionary rule itself is not a right. It's the remedy that vindicates your Fourth Amendment right and gives that right its teeth. [There's a deeper philosophical question about whether the line between right and remedy is a coherent one, but let's put that aside for today.]

The exclusionary rule, however, is not the only possible remedy. For instance, the remedy could be a federal civil rights suit against the police department, or even throwing the offending officers in jail. The point is that there is a whole range of potential remedies. The exclusionary rule is just one of many. And it's an extreme one because, in order to deter bad conduct, it always lets a guilty person go free.

The second thing to keep in mind is the distinction between a warrantless search and a search conducted pursuant to a warrant. If the police have a warrant, that means (in theory) they did their job and gathered enough evidence to establish probable cause before a judge, who then executed the warrant. On the other hand, they could have just barged in without a warrant. These two situations are very different.

Finally, before police enter your house, they are constitutionally required to perform a "knock-and-announce." It's an old tradition. As Scalia explained, the rationale behind the K&A is (1) to prevent unnecessary violence and property damage; and (2) give people a second to gather themselves (e.g., put their pants on). For instance, if the police just barged in, people would be surprised and might attack or shoot the perceived intruder. Also, if the police knock, a lot of people will comply and open the door, making busting down the door unnecessary.

Ok -- with all that in mind, you can understand why the opinion was right. The precise question in Hudson is not "what should the remedy be when the Fourth Amendment is violated?" The precise question is "should the exclusionary rule be the remedy when the K&A requirement is violated?" I don't think so.

First, as Scalia explains well, you have to consider whether the remedy matches the purpose of the right. Unlike the warrant requirement, the K&A right is not intended to protect you from government scrutiny. It governs the manner in which the police may enter after they've already decided to enter. And it does so to prevent violence, damage, and to protect your dignity. That's not to say there shouldn't be any remedy for this violation, but it seems like excluding evidence is a bit drastic for this situation.

The warrant requirement, however, is completely different. The purpose of this right is to prevent the police from intruding to your house without a good reason that has been approved by a court. It doesn't govern the manner of the entry, but the entry itself. Thus, there's a lot more at stake. And for that reason, the more extreme exclusionary rule makes a lot of sense in this context. (In Hudson, the police had a warrant and were authorized to go in).

While it's true that police may be less deterred to violate the K&A rule following Hudson, there are -- as Scalia surprisingly noted -- some practical reasons to think police will still be deterred. First, police training is better than it used to be. Second (and this is mine), it's often in the self-interest of the police to K&A to avoid getting treated as a burglar.

Bottom line -- Hudson isn't ending the exclusionary rule. It doesn't allow police to enter homes when they otherwise couldn't. It simply says that a certain remedy is not appropriate in certain circumstances.

Lyle Denniston at SCOTUSblog thinks that the decision in Hudson suggests that the exclusionary rule may be on the way out.

Pandagon agrees with Publius.

Kieran Healy at Crooked Timber has some acid commentary on Justice Scalia's willingness "to set his originalism aside." Kevin Drum says this is why he "declines to take originalism seriously." Professor Bainbridge declares, "Anybody who thinks Scalia is an originalist is either ill-informed or being disingenuous."

Kieran also refers us to Radley Balko on the ominous implications of "no-knock-and-announce, no-exclusion." Balko is a policy analyst at the Cato Institute, which filed an amicus brief in Hudson.

How Appealing links to the case, to Justice Scalia's opinion, to Justice Kennedy's concurring opinion, to Justice Breyer's dissenting opinion, to transcripts of the oral arguments, and to additional information on the case.

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