D.Del.: “But for” knock-and-announce argument attempt to get around Hudson fails

Trying to get around Hudson v. Michigan, defendant argued a knock-and-announce violation was the “but for” cause of finding his gun in plain view, arguing that, if the police waited longer, he could have hidden it. The court didn’t buy it. [One has to credit counsel for trying. I thought of this argument, too, and I just knew it would never fly.] United States v. Davis, 2013 U.S. Dist. LEXIS 106295 (D. Del. July 30, 2013). Interesting opinion, but just a part of it:

Clarifying the “interest protected” by the knock and announce rule, the Court noted that such interests include “protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident,” “protection of property,” and, generally, “elements of privacy and dignity that can be destroyed by a sudden entrance.” See id. at 592. With regard to the last interest, the knock and announce rule “gives residents the ‘opportunity to prepare themselves for’ the entry of the police'” and provides a “brief interlude between announcement and entry with a warrant” so that “an individual [can] pull on clothes and get out of bed.” See id. (citation omitted). Importantly, however, the interests protected by this rule “do not include the shielding of potential evidence from the government’s eyes.” Id. at 593. Thus, and as the Court distinguished in Hudson, where “the interests that were violated … have nothing to do with the seizure of evidence, the exclusionary rule is inapplicable.” Id. at 594.

In light of this rationale, the court is unpersuaded by Davis’ argument that the Hudson Court based its decision on a but for analysis. In fact, Davis does not cite to any support, aside from providing an interpretation of Hudson, directly supporting his position that the evidence should be excluded as fruit of the poisonous tree, despite the absence of a suppression-triggering rule violation. Moreover, the Third Circuit has likewise rejected Davis’ reading of Hudson. See United States v. Briggs, 347 Fed. Appx. 750, 753 (3d Cir. Oct. 1, 2009) (non-precedential) (citing Hudson in stating that suppression would not be appropriate even if law enforcement had violated the knock and announce rule when executing a search warrant); United States v. Stalling, 275 Fed. Appx. 147, 149 (3d Cir. Apr. 23, 2008) (non-precedential) (finding that the Hudson decision renders the argument that a defendant is entitled to suppression for a violation of the knock and announce rule to be meritless); see also United States v. Mosley, 454 F.3d 249, 259 n.15 (3d Cir. 2006) (observing that when the “illegality is restricted to a violation of the knock and announce rule … no one, not even the owner, can suppress”); United States v. Jones, 523 F.3d 31, 36 (1st Cir. 2008) (applying Hudson to no-knock executions of arrest warrants).