Supreme Court: Knock, don't knock, we won't exclude
The Supreme Court today, by a 5-4 divided court, upheld the conviction of a defendant who objected to the use of evidence to convict him, which was discovered in his home and on his person subsequent to an admittedly (by the State) illegal, unconstitutional search. The case is Hudson v. Michigan, No. 04-1360 (PDF).
Of course, it wasn't a search made without a warrant, as Scalia happily notes. That would be offensive to notions of privacy which are, essentially, as old as the hills.
It was a search made with a warrant, but not in compliance with the usual rule of "Knock, announce, wait, and then enter." Knock & announce is intended, among other things, to:
Further, the language in Mapp v. Ohio (1961; incorporating the exclusion rule of U.S. v. Weeks against the States via the Fourteenth Amendment), Scalia notes, was widely sweeping dicta, and should be ignored.
Some rules, Scalia wants it to be known, matter. Some rules, when violated, produce outrageous and offensive results.
Others, such as rules which, when violated, prevent a criminal defendant from arming himself or destroying evidence, present no such repugnant situation. There's not only no right of a perp to shoot back, Scalia is implying, but there's also no right to flush the junk (or in this case, the rocks).
What does Scalia use in order to determine when a rule requires exclusion and when it doesn't? A balancing test. When are society's needs sufficiently great as to overcome the harm to the defendant from ignoring the rule.
The inevitable result will be that guilty (or guilty-seeming) defendants will never get the protection of any constitutional rule, and innocent-seeming ones will always. This is Scalia's rulemaking for you: a bright line. If you're guilty, don't bother looking to the Constitution for protection.
Useful links
Previous Scalia posts chained below.
Of course, it wasn't a search made without a warrant, as Scalia happily notes. That would be offensive to notions of privacy which are, essentially, as old as the hills.
It was a search made with a warrant, but not in compliance with the usual rule of "Knock, announce, wait, and then enter." Knock & announce is intended, among other things, to:
- prevent bloodshed, as when residents "defend" themselves against unidentified "invaders" trespassing suddenly on their property,
- avoid needless confrontation, as when residents would comply with a request to open for a lawful search, or when they would even consent to a warrantless search, and
- allow a modicum of privacy, so an inhabitant may put on clothes or get out of bed.
Further, the language in Mapp v. Ohio (1961; incorporating the exclusion rule of U.S. v. Weeks against the States via the Fourteenth Amendment), Scalia notes, was widely sweeping dicta, and should be ignored.
Some rules, Scalia wants it to be known, matter. Some rules, when violated, produce outrageous and offensive results.
Others, such as rules which, when violated, prevent a criminal defendant from arming himself or destroying evidence, present no such repugnant situation. There's not only no right of a perp to shoot back, Scalia is implying, but there's also no right to flush the junk (or in this case, the rocks).
What does Scalia use in order to determine when a rule requires exclusion and when it doesn't? A balancing test. When are society's needs sufficiently great as to overcome the harm to the defendant from ignoring the rule.
The inevitable result will be that guilty (or guilty-seeming) defendants will never get the protection of any constitutional rule, and innocent-seeming ones will always. This is Scalia's rulemaking for you: a bright line. If you're guilty, don't bother looking to the Constitution for protection.
Useful links
- Case background at Medill
- Coverage at the NY Times, and opinions (thanks to Bashman for links) are available:
- "Alito vote loosens limits on evidence" (which reflects the fact that the case was reargued after O'Connor left the bench; query whether she really would have voted to exclude, despite her language during the arguments)
- Scalia opinion for the Court (as to parts I to III) (PDF)
- Kennedy's opinion concurring in the judgment and joining the majority as to parts I to III, but not IV (PDF)
- The dissenting opinion (PDF)
- The original Supreme Court arguments transcript and the transcript of the re-argument (with Alito) (PDFs)
Previous Scalia posts chained below.
Related Posts (on one page):
- Supreme Court: Knock, don't knock, we won't exclude
- Scalia: a non-controversy with rude gestures
- Scalia and language
- Scalia MP1 followup: Branding and Casey
- Scalia Mega-Post: the Big One (part I. section A. subsection 1.)
Posted by Eh Nonymous on
Thursday June 15, 2006 at 2:40pm
Clearly that can't apply when the warrant is for weapons, as was the case here. Knock-and-announce has the opposite effect, essentially creating a "right to lock-and-load."
I don't recall whether the warrant was for weapons. The conviction was for drugs, and a gun was found between the cushions and armrest of his chair. In any case, the police, who entered "3-5 seconds" after knocking were not in fact threatened, let alone harmed, to my knowledge.
I am not familiar with the origins of the Knock rule. I would hope there were explicit exceptions for highly armed and/or dangerous felons, and flight risks, and hostage situations.
There's no right to lock and load, as I think you pointed out in your previous post, about the right to "flush it down the toilet".
But is it a reasonable search when done in the way presented? Was it a priori reasonable? Did they think they needed 3-5 seconds, or that Hudson would in fact lock and load?
The police "right" to blindside suspects is suspect in my view. I don't mind if there's a judge willing to sign off on a warrant (or something) authorizing the use of no-warning, non-lethal force (gas, foam, rubber bullets, whatever's likely to not-kill the suspect), and I don't mind if the suspect suddenly escalates to the use of lethal force, if the police defend themselves.
Why can't a warrant for "felon in possession" involve a knock? Are felons presumed dangerous? How about potheads? Did Hudson have any arrests for violence?
A warrant for drug trafficking on the other hand, or a warrant for killing a police officer serving a warrant? Different story in my book.
*Not all comments welcome. Flippant, facetious, fierce, or fatuous, fine. Fraudulent, felonious, fabricated, facially insufficient, and farkin' futile, fuggeddaboutit.