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.
