SCOTUS decides Hudson v. Michigan, 2006 U.S. LEXIS 4677, 2006 WL 1640577 (free link on right margin), today holding that execution of warrant issues are not subject to the exclusionary rule, effectively limiting Wilson v. Arkansas, 514 U. S. 927 (1995), which I argued and won 9-0 in 1995 that the common law knock-and-announce rule was incorporated into the reasonableness requirement of the Fourth Amendment. Now we find that a violation of knock-and-announce is subject to no criminal law remedy under the Fourth Amendment. The syllabus follows in the second quote.

I cannot help but note, however, that the good faith exception of United States v. Leon, 468 U.S. 897, 924 (1984), excludes questions of reasonableness of the search and belies today’s case:

The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time. Nor are we persuaded that application of a good-faith exception to searches conducted pursuant to warrants will preclude review of the constitutionality of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state.

There is, however, language in Leon that can be read either way you want it to foretell today’s holding.

The syllabus from Hudson:

Detroit police executing a search warrant for narcotics and weapons entered petitioner Hudson’s home in violation of the Fourth Amendment’s “knock-and-announce” rule. The trial court granted Hudson’s motion to suppress the evidence seized, but the Michigan Court of Appeals reversed on interlocutory appeal. Hudson was convicted of drug possession. Affirming, the State Court of Appeals rejected Hudson’s renewed Fourth Amendment claim.

Held: The judgment is affirmed.

Justice Scalia delivered the opinion of the Court with respect to Parts I, II, and III, concluding that violation of the “knock-and-announce” rule does not require suppression of evidence found in a search. Pp. 2–13.

(a) Because Michigan has conceded that the entry here was a knock-and-announce violation, the only issue is whether the exclusionary rule is appropriate for such a violation. Pp. 2–3.

(b) This Court has rejected “[i]ndiscriminate application” of the exclusionary rule, United States v. Leon, 468 U. S. 897, 908, holding itapplicable only “where its deterrence benefits outweigh its ‘substantial social costs,’” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 363. Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion. Attenuation can occur not only when the causal connection is remote, but also when suppression would not serve the interest protected by the constitutional guarantee violated. The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable. Pp. 3–7.

(c) The social costs to be weighed against deterrence are considerable here. In addition to the grave adverse consequence that excluding relevant incriminating evidence always entails–the risk of releasing dangerous criminals–imposing such a massive remedy would generate a constant flood of alleged failures to observe the rule, and claims that any asserted justification for a no-knock entry had inadequate support. Another consequence would be police officers’ refraining from timely entry after knocking and announcing, producing preventable violence against the officers in some cases, and the destruction of evidence in others. Next to these social costs are the deterrence benefits. The value of deterrence depends on the strengthof the incentive to commit the forbidden act. That incentive is minimal here, where ignoring knock-and-announce can realistically beexpected to achieve nothing but the prevention of evidence destruction and avoidance of life-threatening resistance, dangers which suspend the requirement when there is “reasonable suspicion” that they exist, Richards v. Wisconsin, 520 U. S. 385, 394. Massive deterrence is hardly necessary. Contrary to Hudson’s argument that without suppression there will be no deterrence, many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline. Pp. 8–13.

Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded in Part IV that Segura v. United States, 468 U. S. 796, New York v. Harris, 495 U. S. 14, and United States v. Ramirez, 523 U. S. 65, confirm the conclusion that suppression isunwarranted in this case. Pp. 13–16.

Scalia, J., delivered the opinion of the Court with respect to Parts I, II, and III, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Part IV, in which Roberts, C. J., and Thomas and Alito, JJ., joined. Kennedy, J., filed an opinionconcurring in part and concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

First observation: I also wrote about 75% of the brief in Richards v. Wisconsin, 520 U. S. 385 (1997). The state and federal government as amicus argued that dispensing with announcement would save officers’ lives, citing overinclusive statistics of officers killed during drug investigations. Each summary had to be read to determine whether a police officer was killed during a failure to announce, and it was, as best as we could discern because the summaries did not always tell, a relatively small number each year. We countered that with (and remember this was pre-Internet and Google) news articles about citizens killed by police officers during drug raids. And, from what little we found out, the number of citizens killed was about equal to the number of officers. We had the gratification of knowing that Wilson and Richards saved lifes: lives of police and citizens. Now, the Supreme Court barely mentions real and substantial risk of a homeowner getting shot when they enter without knocking, the right or wrong house. As usual with this Supreme Court, the rights of citizens are subordinate to police necessity.

Second, the exclusionary rule now only gets lip service. A few cases here and there support it, but this was like a knife in the heart for those of us who consider the knock-and-announce rule so vital to protection of human life. Life is cheap in the U.S. Supreme Court.

Third, this will further cause the states to go off on their own and decide knock-and-announce questions under their state constitutions.

Fourth, if I had not read it today, after being called during a trial recess and told about it, I would not have believed it. Justice Kennedy, once again, caved and went with the majority, just like he cast the deciding vote to elect President Bush.

I have been provided with the link to copy of the affidavit and search warrant for Rep. William Jefferson‘s (D-LA2, New Orleans) Congressional office as well as defense counsel’s excellent memorandum for sealing the records pending litigation of speech and debate privilege and separation of powers. I’m impressed with both. The affidavit online has several things redacted, but, what is there is damning. It is painful to read.

Defense counsel, Robert P. Trout and Amy Berman Jackson of Trout Chacheris PLLC, Washington, DC, provide a compelling argument for sealing the product of the search, which the President did for them before the court could act.

The irony here is so thick you can cut it with a knife. DoJ is falling all over itself to give Jefferson every benefit of the doubt about how the search occurred with a “Filter Team” of uninvolved FBI agents to determine what is seizable and what is not. The average citizen would have had everything packed up and carried off for later analysis. The search warrant affidavit recognizes likely assertion of a speech and debate privilege under U.S. Const., Art. I, cl. 6, and the FBI did its best to minimize the intrusion.

Among the redacted material are references to what else was done in an effort to get the records short of a search warrant that failed. The defense, however, raises the question that the government failed to utilize “less intrusive measures” than a search, something the Supreme Court has yet to recognize, but the nature of this case may change that. If so, good.

Shortly after 4 p.m EDT, the N.Y. Times posted: Constitutional Squabble May Have Earlier Roots.

Speaker J. Dennis Hastert is moving publicly to put his constitutional showdown with the Justice Department in the past, but many on Capitol Hill believe that the bitter confrontation will resonate in the coming months.

Lawmakers and senior officials say Mr. Hastert’s determined challenge to the Justice Department’s court-authorized search of a Congressional office arose as much from frustration at missteps and slights by high-level administration officials as it did from outrage over what he saw as a gross violation of Congressional turf.

. . . .

The F.B.I. demand for access to the Rayburn House Office Building suite of Representative William J. Jefferson, a Louisiana Democrat under investigation in a corruption case, was seen as the last straw by Republican leaders worried about holding their majority in the House in the November elections, particularly with President Bush’s flagging popularity.

“We are five months away from an election, and we can’t afford to make high-profile mistakes,” said one senior Republican official who was granted anonymity because he did not want to be identified discussing sensitive party strains. “There is a sense of tension in the air.”

Further down in the same article:

Congressional Republicans say their anger, exacerbated by their midterm political perils, is not aimed directly at Mr. Bush. They believe that Mr. Bush and his immediate circle have improved their efforts to consult with Congress, reversing a previously dismissive attitude as evidenced by two recent appearances by Karl Rove, the White House political strategist, at meetings of House Republicans.

And they say Mr. Bush, who heard complaints from Mr. Hastert about the search and Mr. Goss’s dismissal, showed that he was sympathetic to the House stance by ordering the seized materials to be sealed for 45 days. The problem, one official said, is with cabinet secretaries like Attorney General Alberto R. Gonzales who, from the House perspective, do not seem to consider Congress an equal partner in governance.

And, it was “rumored,” per CNN, that AG Gonzalez threatened like a petulent child to resign if the White House caved in to Congressional pressure on the Jefferson probe. So, the White House ordered the records sealed for 45 days.

Of course the President doesn’t consider Congress an equal partner in government. Not that Congress has proved otherwise, because it is the President’s lapdog, not his watchdog. “If this were a dictatorship, it would be a heck of a lot easier, just so long as I’m the dictator.” George W. Bush, December 18, 2002 (CNN transcript and video).

Politics never ceases to amaze me. The Republicans in Congress are turning on the President?

In a story in yesterday’s Washington Post entitled Officials Seek Broader Access to Airline Data, it is revealed that the Department of Homeland Security and European authorities are seeking access to the major airline booking databases for booking, personal, and payment information in an effort to track potential terrorists:

United States and European authorities, looking for more tools to detect terrorist plots, want to expand the screening of international airline passengers by digging deep into a vast repository of airline itineraries, personal information and payment data.

A proposal by Homeland Security Secretary Michael Chertoff would allow the United States government not only to look for known terrorists on watch lists, but also to search broadly through the passenger itinerary data to identify people who may be linked to terrorists, he said in a recent interview.

Similarly, European leaders are considering seeking access to this same database, which contains not only names and addresses of travelers, but often their credit card information, e-mail addresses, telephone numbers and related hotel or car reservations.

The United States government already gets much of the information, but they are looking for more detailed and personal information deeper in the databases:

But a second, more comprehensive database known as the Passenger Name Record is created by global travel reservation services like Sabre, Galileo and Amadeus, companies that handle reservations for most airlines as well as for Internet sites like Travelocity.

Each time someone makes a reservation, a file is created, including the name of the person who reserved the flight and any others traveling in the party. The electronic file often also contains details on rental cars or hotels, credit card information relating to travel, contact information for the passenger and next of kin, and at times even personal preferences, like a request for a king-size bed in a hotel.

We have all assumed that cellphone memories, when erased, are gone forever. Cellphones, however, run off computer chips, and their memories remain in deleted files, just like computers. Experts can recreate from the memory text messages and numbers dialed. This was on AP and CNN last week (“Cell phones won’t keep your secrets“) and in wire service stories that hit most local papers on the weekend.

Selling your old phone once you upgrade to a fancier model can be like handing over your diaries. All sorts of sensitive information pile up inside our cell phones, and deleting it may be more difficult than you think.

A popular practice among sellers, resetting the phone, often means sensitive information appears to have been erased. But it can be resurrected using specialized yet inexpensive software found on the Internet.

A company, Trust Digital of McLean, Virginia, bought 10 different phones on eBay this summer to test phone-security tools it sells for businesses. The phones all were fairly sophisticated models capable of working with corporate e-mail systems.

Curious software experts at Trust Digital resurrected information on nearly all the used phones, including the racy exchanges between guarded lovers.

The other phones contained:

•One company’s plans to win a multimillion-dollar federal transportation contract.

•E-mails about another firm’s $50,000 payment for a software license.

•Bank accounts and passwords.

•Details of prescriptions and receipts for one worker’s utility payments.

The recovered information was equal to 27,000 pages — a stack of printouts 8 feet high.

. . .

“The tools are out there” for hackers and thieves to rummage through deleted data on used phones, Trust Digital’s chief technology officer, Norm Laudermilch, said. “It definitely does not take a Ph.D.”

Now that the word is out, expect law enforcement to start utilizing this new investigative tool. A suspected drug dealer’s telephone may have a gold mine of incriminating information.

CNN.com via AP reports today that an alleged multistate prostitution ring in Palm Springs, California was broken up after a 2-1/2 year probe. See Cops: Sex ring employed 240 call girls:

seven people arrested last week and charged for investigation of pimping, pandering, perjury, loan fraud, money laundering, falsifying income tax returns and grand theft, Riverside County Sheriff Bob Doyle said Monday.

. . .

Authorities also seized about 15 computers and $5 million in unspecified assets. Officials said the investigation was continuing and that more arrests were likely.

It not only seems to be the trend that computers are sought in search warrants for any crime where a financial record might be kept, but the ubiquity of computers as storage devices for financial information makes it a near certainty.

Third person with key to a storage locker had apparent authority to consent. Defendant showed that she held the key only in case he lost his, and she didn’t even know where the locker was. Nevertheless, the police were reasonable in their belief of her apparent authority and were not required to question her as to its true limits. United States v. Azubike, 2006 U.S. Dist. LEXIS 8187 (D. Mass. March 3, 2006) (This is a tough case on the facts that could have gone either way. Is it reasonable for the police to reasonably believe in apparent authority when the consenter does not even know the location of the place to be searched? The First Circuit needs to look at this one.)

Police watching pseudophedrine movement, on the totality, could conclude that there was PC to arrest and search the participants. It was coordinated and unlikely that the persons arrested were mere bystanders happening into the transactions. United States v. Zamora, 2006 U.S. Dist. LEXIS 8196 (N.D. Ga. February 21, 2006), Magistrate’s R&R, 2005 U.S. Dist. LEXIS 40775 (N.D. Ga. December 7, 2005) (released same day).*

In view of standing law that “not every push or shove” during an arrest makes it unreasonable, particularly when view in the quiet of a judge’s chambers after the fact, the officer who pushed the plaintiff here did not use excessive force. Steele v. District of Columbia Housing Auth., 2006 U.S. Dist. LEXIS 8239 (D. D.C. February 14, 2006).

Officer had reasonable suspicion for stopping car that he had previously recently stopped and found driver without insurance and a suspended DL. On this stop, however, he found the mother of the previous driver actually driving. The stop was with RS because it was reasonable to believe that the driver would be the registered owner. State v. Hamic, 35 Kan. App. 202, 129 P.3d 114 (March 3, 2006) (Compare United States v. Laughrin, 438 F.3d 1245 (10th Cir. March 2, 2006), posted March 3d (Kansas is in the 10th Cir.), apparently to the contrary. The only difference may be how long it had been since the last stop.)

A field sobriety test need only be based on RS, not PC. Blasi v. State, 167 Md. App. 483, 893 A.2d 1152 (March 2, 2006).

PC for arrest came from CI who said that defendant would be arriving in one of two specifically described vehicles in two hours at a particular location with crack cocaine. Officers had made drug arrests at the drop point before. State v. Hopkins, 2006 Ohio 967, 2006 Ohio App. LEXIS 897 (6th Dist. March 3, 2006) (Note: This case just does not seem right. The analysis is too shallow to satisfy anybody except the police. The CI’s predictive information was specific, but it could have been of anybody doing a lawful act. There was nothing unique about the CI’s information that gave it any greater credence than a tip to set somebody up, which is what should be required.)

Insurance fraud subpoena to doctor satisfied Fourth Amendment because the doctor had an opportunity for judicial review prior to enforcement. Also, the doctor-patient privilege cannot be invoked by the doctor to protect against an insurance fraud investigation. Burns v. Boyden, 2006 UT 14, 546 Utah Adv. Rep. 44, 133 P.3d 370 (March 3, 2006).

Terry stop on defendant’s small porch somehow escalated into entry into the home. Court finds the officer’s testimony incredible and credits the defendant’s testimony that there were no exigent circumstances for the entry. United States v. Hart, 2006 U.S. Dist. LEXIS 10138 (E.D. La. March 14, 2006).*

PC was shown for warrant based on a 22 pound marijuana sale just before, and the SW for the house included search the defendant inside, even though he was not named as a “person to be searched.” United States v. Gill, 2006 U.S. Dist. LEXIS 9944 (E.D. Mo. March 13, 2006).*

Staleness was not shown just because defendant visited child porn site 17 months earlier. United States v. Doan, 2006 U.S. Dist. LEXIS 9970 (W.D. Wis. March 13, 2006).

IAC on Fourth Amendment claim considered on merits, but court finds that it was not clearly established at the time of the search that it would have been illegal, so petitioner would lose. Vela v. Knowles, 2006 U.S. Dist. LEXIS 9978 (N.D. Cal. February 21, 2006).

Consent to patdown on side of highway in the rain was coerced because she would not get in car until she consented. Male officer used the back of his hand to touch the genital area of a women through her sun dress looking for drugs. Philpot v. Warren, 2006 U.S. Dist. LEXIS 9990 (N.D. Ga. February 21, 2006) (civil case for unreasonable search).

Stop for possible immigration violation was valid, but defendant should have been Mirandized when being questioned about his immigration status. United States v. Arana-Arellano, 2006 U.S. Dist. LEXIS 10019 (D. S.D. February 14, 2006).

Defendant was not actually stopped when he abandoned drugs. Officers got an anonymous tip about drug dealing, and officer got out of car to approach four men, and one discarded his drugs. State v. Atkins, 926 So. 2d 591 (La. App. 5th Cir. March 14, 2006).

Stepping out of the light was a factor in stopping a man in a high crime area, and his refusal to take his hands from his pockets justified a patdown which revealed drugs by plain feel. State v. Stanfield, 925 So. 2d 710 (La. App. 5th Cir. March 14, 2006, released for publication April 6, 2006).

Telephone calls about drug use and officers’ presence at apartment that revealed odor of marijuana collectively showed PC. State v. Morse, 2006 MT 54, 331 Mont. 300, 132 P.3d 528 (March 14, 2006).*

When police officer pulled up behind a car partially blocking one lane of a street but not blocking any traffic, it was a seizure. The officer turned on his blue lights “‘to make sure that [the defendant knew] my vehicle was there,’ and proceeded to investigate why the defendant was stopped in the roadway.” State v. Williams, 185 S.W.3d 311 (Tenn. March 13, 2006).

Officers stopped the plaintiff walking with earphones on and had to repeatedly call from him to stop with the PA system in the patrol car. The area was known for vandalism. Genuine issues of fact precluded MSJ for defendants on legality of the stop. D’Addio v. Maldonado, 2006 U.S. Dist. LEXIS 18848 (D. Conn. March 2, 2006).*

Government brought a taint team and an AUSA to a document search, and some documents were lawfully seized but inadmissible for lack of nexus to the crime to be tried. Because some were unjustifiably seized does not warrant suppression of the remainder. United States v. Altiere, 2006 U.S. Dist. LEXIS 18815 (N.D. Ohio March 1, 2006).

Search of medical marijuana user’s property was suppressed on appeal because the affidavit did not show that his conduct was unlawful. People v. Russell, 138 Cal. App. 4th 723, 41 Cal. Rptr. 3d 668 (3d Dist. March 16, 2006, changed from unpublished to published April 14, 2006):

Here, there was even less indication defendant’s actions were criminal. The only evidence set forth in the affidavit was the observance of marijuana plants outside defendant’s residence, and defendant had clearly indicated to any observer that the plants were being cultivated lawfully. The affidavits’ boiler plate language that, “subjects who cultivate cannabis outdoors will frequently start cultivating the cannabis plants indoors, prior to the outdoor cannabis cultivation season, so the cannabis plants are larger,” does not add to the probable cause determination under the facts of this case. The typical actions of an illegal cannabis cultivator are not necessarily the same as those of qualified patients or caregivers cultivating the plants legally. Moreover, the affidavit indicated indoor cultivation usually takes place before the outdoor cultivation season, which lasts from April to October. The search took place in August, during the outdoor cultivation season when there was no reason to suspect indoor cultivation.

Under the circumstances of this case, where the defendant clearly posted his status as a qualified patient in a manner that was susceptible of verification, and the only facts presented by the affidavit were of legal activity occurring on the premises, there was no probable cause to issue the search warrant.

Class action status for alleged dragnet detentions failed because of the factual differences between the claimants. Brown v State, 2006 NY Slip Op 26141, 2006 N.Y. Misc. LEXIS 797 (Ct. Cl. February 10, 2006).

DUI arrest led to valid vehicle inventory that led to finding child porn and used condoms with female names written on them. That led to a valid search warrant for defendant’s house. State v. Thompson, 2006 Ohio 1836, 2006 Ohio App. LEXIS 1690 (8th Dist. April 13, 2006).