CA1: Overwhelming “shock-and-awe” entry would not lead to exclusion of the evidence

Officers executed a no-knock warrant to search defendant’s residence. The entry was accomplished with an armored vehicle, a large complement of officers, noise-flash accompaniment, and a formidable show of force. Even this “shock-and-awe” entry would not lead to exclusion of the evidence under Hudson and Herring. United States v. Garcia-Hernandez, 659 F.3d 108 (1st Cir. 2011):

For one thing, the circumstances to which the defendant adverts do nothing to satisfy the requirement of but-for causation. Even if the officers had knocked, announced, and politely entered the defendant’s dwelling, the incriminating evidence would have been found when they conducted the search. The exclusionary remedy is unavailable when, as in this case, there is no causal link between the constitutional violation alleged and the evidence discovered during the ensuing search. See Hudson, 547 U.S. at 592.

For another thing, we do not accept the defendant’s claim that an aggressive manner of entry materially alters the decisional calculus employed in Hudson. The defendant insists that there are compelling reasons to discourage officers executing search warrants from engaging in “military assault” tactics and that those reasons outweigh the social costs incident to employing the exclusionary rule. But this is nothing more than an ipse dixit, and we fail to see how the level of force used tips the Hudson balance. After all, the Court recognized that the chief benefit of applying the exclusionary rule to knock-and-announce violations would be its deterrent effect on police misconduct. See id. at 596. The Court nevertheless concluded that the social costs of imposing exclusion outweighed that benefit. Id. In cases alleging a failure to knock and announce, the Court reasoned, police misconduct could be effectively deterred through civil suits, thus negating the need to invoke the extreme remedy of exclusion. Id. at 596-99. That the officers in this case used shock-and-awe tactics does not undermine this reasoning.

In an effort to change the trajectory of the debate, the defendant notes the Hudson Court’s discussion of the important interests safeguarded by the knock-and-announce rule: “protection of human life and limb,” “protection of property,” and “protect[ion] … of privacy and dignity.” Id. at 594. He speculates that the threat to those interests is greater in this case than in the mine-run of cases due to the overly aggressive manner of the officers’ entry.

Whether or not this is so, it is beside the point. The knock-and-announce rule does not implicate the interest in “shielding … evidence from the government’s eyes.” Id. at 593. That interest is suspended (in limited scope) once a valid warrant has issued. Id. A defendant claiming harm to that interest (say, harm from a warrantless search) may be entitled to exclusion as a remedy. But where, as here, a defendant asserts injury from a no-knock entry antecedent to an otherwise valid search, the remedies afforded in civil suits can adequately redress the harm to the interests that are affected. See id. at 596-99.

A civil case? Really? Like a convicted drug dealer would get any sympathy from a jury? The innocent will have an excellent civil case; the guilty are virtually screwed and the court has to know it.