There Is No Remedy For A Violation Of
The KNOCK AND ANNOUNCE RULE
Hudson v. Michigan, June, 2006
http://www.supremecourtus.gov/opinions/05pdf/04-1360.pdf
The state police waited three to five seconds to open an unlocked door and enter a home, violating the knock and announce rule. The police had obtained a properly executed warrant allowing them to search the house for weapons and drugs. They found both. The resident/defendant asked the court to use the exclusionary rule to suppress the evidence from being used in the trial. The evidence was used in the trial, and the defendant was convicted.
In a recent case where there was a search for drugs, the Supreme Court said that the knock and announce rule was flexible, but that a "reasonable wait time" in a situation where the search was for drugs would generally be 15 to 20 seconds. United States v. Banks, 540 U.S. 41 (2003). Here, the Supreme Court flat-out said that this violation of the knock and annouce rule was both illegal under a statute and unconstitutional. Both parties agreed. However, Antonin Scalia, who wrote the decision, said "Happily,...[t]he issue here is remedy." In other words, given the illegal activity by police, what can be done to rectify it?
Normally, when constitutional rights are violated in obtaining information that may be used against an accused criminal, the remedy is to exclude the information from being presented as evidence in a trial. This is the exclusionary rule, and it keeps law enforcement on notice that they cannot benefit through prosecutions where they violate rights. Thus, police have an incentive to uphold Constitutional rights. Here, Scalia said, basically, there is nothing the Supreme Court can do to uphold constitutional rights.
The Supreme Court's main reasoning was this. The arrest was preceded by a proper warrant. As per the warrant, they were looking for drugs and guns, and found them. If the police had not violated the knock and announce rule, the guns and drugs would have been found anyway. Thus, the constitutional violation did not affect the outcome.
The Supreme Court went through a lengthy history of the knock and announce rule, tracing it all the way back to British common law, and covering the development of the rule over time. In the United States, the knock and announce rule was required by statutes, but it was also required by the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927 (1995).
The Fourth Amendment provides that people be free from "unreasonable search[es]." In earlier knock and announce cases, a constitutional violation was sufficient to require the exclusion of evidence. In this case, a constitutional violation became necessary to consider excluding evidence. By converting the standard from sufficient to necessary, the Supreme Court now could choose not to uphold a constitutional right.
"LEGISLATING FROM THE BENCH" AND
STEPPING BACKWARD TO A FAILED POLICY
Often it is said that judges should not "legislate from the bench." The power of a court is passive. A court's power must be invoked by a person who files a lawsuit and has a personal stake in the outcome. When the Supreme Court's power is invoked, it is supposed to deal with the specific facts presented and decide what is right in the particular case.
In this case, Antonin Scalia did exactly the opposite. He plainly knew that there was a Constitutional violation in the case before him. Despite that, he went into a lengthy dissertation about police practices in general. He said that today's police are better trained and more "professional" than in the past, that there are private rights to sue police agencies, and that other better safeguards are in place than in the past; so violations in general are less frequent today than in the past.
Justice Stephen Breyer, in his dissenting opinion, pointed out that the knock and announce rule had not previously applied to the states. Wolf v. Colorado, 335 U.S. 25 (1949). Later, the knock and announce rule was applied to the states, Mapp v. Ohio, 367 U.S. 643 (1961), because "[e]xperience, ... showed that alternative methods of enforcing the Fourth Amendment's requirements had failed." The Mapp case overturned the Wolf case.
Justice Antonin Scalia overturned the Mapp case and reverted back to the Wolf case, creating a big flip-flop in the Supreme Court precedent. Scalia's reasoning for overturning Mapp was very much the same as the reasoning in the Wolf case. Apparently, he did not learn anything from the Mapp case.
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