Hudson becomes absolute: 2d and 9th Cir. weigh in

The issue was an alleged knock-and-announce violation, and Hudson was decided after appellant’s briefs were filed but before argument. In an effort to avoid Hudson, appellant argued then that the federal violation of 18 U.S.C. § 3109 should be treated differently than a Fourth Amendment violation, but the Second Circuit disagreed. They are essentially the same and protect the same interests, and they should not be treated differently in application of the exclusionary rule. United States v. Acosta, 502 F.3d 54 (2d Cir. 2007) [This case may be known as United States v. Carvajal when published; it appears on the Second Circuit’s website with that name. Carvajal was the only appellant of the three in the case when it came up with this issue; all three were in the government’s cross-appeal, which it dismissed.]:

Given the common law origins of § 3109 and the Fourth Amendment’s knock-and-announce principle, it is unsurprising that they overlap to a considerable extent. Indeed, we have often observed that the contours of § 3109 coincide with the reasonableness inquiry of the Fourth Amendment. … Because § 3109 “codifies the common law in this area,” while “the common law in turn informs the Fourth Amendment,” Fourth Amendment cases necessarily “serve as guideposts in construing the statute.” …

Because of this cross-fertilization, both § 3109 and the Fourth Amendment knock-and-announce principle have been held subject to the same exceptions and found to protect similar interests. …

In the Ninth Circuit, the court dealt with an alleged unreasonable search conducted under the aegis of a knock-and-announce violation that included alleged unnecessary use of force with a flash bang device and shooting up the place. The unreasonableness of the entry, if it was, was not causally related to the seizure of evidence under Hudson. United States v. Ankeny, 502 F.3d 829 (9th Cir. 2007) (amended and reissued):

Here, the discovery of the guns was not causally related to the manner of executing the search. The police had a warrant, the validity of which is not questioned, and the guns, money, and other contraband were not hidden. Even without the use of a flash-bang device, rubber bullets, or any of the other methods that Defendant challenges, “the police would have executed the warrant they had obtained, and would have discovered the [evidence] inside the house.” Hudson, 127 S. Ct. at 2164; cf. United States v. Hector, 474 F.3d 1150, 1155 (9th Cir. 2007) (holding that suppression was inappropriate where “[t]he causal connection between the failure to serve [a] warrant and the evidence seized is highly attenuated, indeed non-existent”). Accordingly, we affirm the district court’s denial of Defendant’s motion to suppress the evidence.