{"id":3372,"date":"2009-12-22T10:59:45","date_gmt":"2009-09-13T08:06:56","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-09-13T08:06:56","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3372","title":{"rendered":"FL2: Hudson<\/em> not followed for knock-and-announce violation"},"content":{"rendered":"

A knock-and-announce failure is subject to suppression, despite Hudson, which the court does not reflexively follow. The question, however, is certified to the Florida Supreme Court. Cable v. State<\/a>, 2009 Fla. App. LEXIS 12890 (2DCA September 4, 2009):<\/p>\n

The issue in the instant case, however, is not–as it was in Hudson<\/a>–whether the evidence is subject to suppression under the Fourth Amendment. Instead, the issue is whether suppression of the evidence is a remedy that must be applied for the violation of the statutory knock-and-announce provision. The Florida case law recognizes the common law and constitutional background for the knock-and-announce statute. See Benefield, 160 So. 2d at 710 (stating that section 901.19 “appears to represent a codification of the English common law which recognized the fundamental sanctity of one’s home”); State v. Loeffler, 410 So. 2d 589, 593 (Fla. 2d DCA 1982)(stating that the purpose of the knock-and-announce statute “parallels that of the constitutional guarantees against search and seizure”). But the case law does not support the conclusion that the statute has no force independent of the requirements of the Fourth Amendment. Under the Florida case law, it is by no means clear that the exclusionary rule has been applied to violations of the knock-and-announce statute only because Fourth Amendment knock-and-announce violations were subject to the exclusionary rule. Indeed, Benefield applied the exclusionary rule for violations of the knock-and-announce statute long before the United States Supreme Court decided in Wilson v. Arkansas<\/a>, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), that the common law knock-and-announce rule was also a “‘command of the Fourth Amendment.'” Id. at 931 (quoting New Jersey v. T.L.O.<\/a>, 469 U.S. 325, 337, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)). Thus, we conclude that Hudson<\/a> does not displace the existing Florida precedent, which mandates the application of the exclusionary rule for violations of the knock-and-announce statute.<\/p><\/blockquote>\n

Note: I argued Wilson<\/a> in 1995. It was almost unfathomable that the Court would find knock-and-announce a constitutional imperative then and then turn around and gut it eleven years later in Hudson<\/a> by holding that its constitutional violation was essentially not a constitutional imperative since the exclusionary rule does not apply to knock-and-announce violations. I have argued in proper cases since Hudson that my state’s exclusionary rule should not apply to knock-and-announce violations. None has made it up on appeal yet. That is a little Quixotic since Arkansas did not find knock-and-announce to be a constitutional violation in the first place in 1994. After all, I was the petitioner against the state in Wilson.<\/p>\n","protected":false},"excerpt":{"rendered":"

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