Say goodbye to another corner of the Bill of Rights:
June 15 (Bloomberg) — Prosecutors can use evidence seized by police during a home search even though officers violated the Constitution by failing to knock or announce their presence before entering, the U.S. Supreme Court ruled.
The justices, voting 5-4 in a Michigan case, today put new limits on the so-called exclusionary rule, which in some circumstances bars prosecutors from using the product of an illegal search. The majority said the exclusionary rule doesn’t apply to violations of the “knock and announce” requirement for home searches.
Today’s ruling which weakens the exclusionary rule, established in 1961, which holds that evidence obtained in an unconstitutional search must be excluded from trial. One expects that the Supreme Court’s obvious authoritarian trajectory willmake police more aggressive in pushing the boundaries of acceptable searches but, according to NPR, Scalia disagreed, arguing essentially that today’s police force is a much more professional disciplined operation than what we had in the 1960’s.
To be frank that has to be the dumbest argument that I have ever heard a Supreme Court justice make. Of course today’s police behave more professionally than before the exclusionary rule came into effect. You don’t have to take a strict Hobbesian view of human nature to appreciate that people will behave better when there are real penalties for behaving badly. To imagine that people will go on behaving well after you take away the penalties for behaving badly seems like remarkably childish reasoning for a man of Scalia’s stature.
We can now set aside any doubts about where exactly George Bush’s chosen court nominees plan to take the country. If the police, the FBI or the NSA want to stick their nose into your personal affairs then they will have inreasing freedom to do so and there isn’t much of anything that you can do about it. But hey, 9/11.
Title changed because I am obviously not a lawyer. You can expect that better legal minds (that is, 80% of my readers) will strike down a good portion of the text as well. Viva blogging.
I should point to writers who know of what they speak:
Nathan Newman identifies an upcoming clash between two rightwing legal doctrines.
via readers, Orin Kerr and Radley Balko.
Your title is wrong, sir.
The Court explicitly affirmed “knock and announce” as a constitutional requirement. It merely weakened the exclusionary rule as a remedy for a violation of that requirement.
Now, you may think that that leaves the requirement rather toothless, and I don’t disagree that this decision is a big deal, but a failure to “knock and announce” is still a constitutional violation. And in the event that violation is a “but-for” cause of evidence being obtained, that evidence will still be excluded.
Orin Kerr has an interesting post, which concludes:
I’ll whore for Balko’s site again:
“Law and order” types are just authoritarians in disguise.
OK, that just sent prematurely, somehow by a combination of hitting several keys at once….
Anyways…cannot wait to see how this plays out in good ‘ole Florida. See, they have a “Homestead Protection Law”, or something of that title. You can LEGALLY shoot first, ask questions later if you feel you or your homestead is threatened. It made news earlier when it was to be applied to your vehicle, and thus road rage shootings, etc….
As I see it, One Time can now bust down your door without knocking, legally. You, the homeowner in Ft. Laud, can also legally turn around the kitchen corner with the Glock 9 ablazin’, legally. Wow, the mind boggles at the Supreme Court’s reasonings…
I’d prefer one of these to the Glock.
The Other Steve
Are you saying that there may still be a violation, but you know damnit there’s some strong evidence here the guy is guilty. So let’s punish the officers in some other way than letting the bad guy go free on the street?
I have a hard time with this one. I don’t like letting people go free because of a mistake. I want police to do everything exactly as they should, but it doesn’t seem to serve the purposes of the state to let the bad guy go.
If you are in fact innocent, and the police bust down your door. Well you’re going to still be innocent. But what happens to the police for doing the wrong thing? Nothing, because well there’s no crime here? What?
I just don’t think we can say “letting the criminal go free” is your punishment. I’m just saying their ought to be a better system.
Well, there ought to be a better way than letting a guilty man go free because evidence was collected in some impermissible way, yes. The problem is that we don’t seem to have found a better way.
Scalia’s policy argument is something like (1) the police sincerely try hard to follow constitutional rules; (2) police who break the rules are subject to internal discipline (“good job nailing that drug dealer, but we’re suspending you for 30 days for failing to knock and announce”); (3) there are citizen review boards; and (4) municipalities can get sued for money damages if the police violate the constitution.
Is any of this really sufficient to ensure our constitutional protections? I dunno, seems to me the job of the police is to get the bad guy, and in furtherance of that goal they’re likely to follow the rules when it doesn’t matter and ignore the rules when it seems helpful in catching the bad guy. Even when they act in good faith, which surely isn’t always the case, I’m not sure that relying on the police to police themselves is what the Bill of Rights contemplated.
On the other hand, the majority of countries apparently get by just fine without an exclusionary rule, so I’m left to wonder how these countries ensure that citizen’s rights are protected, assuming they recognize such rights.
While I generally tend to protection of civil rights as a first priority, I don’t think this case is the end of (or even the beginning of the end of )Western civilization. First, knock and announce as a constitutional requirement has only been around since 1995, and this is the first time the Court has addressed the remedy issue. Second, in this case, the police did have a warrant to conduct the search, and did in fact conduct the search in accordance with the warrant. Third, most police departments will continue to have a knock and announce policy (and most policemen will follow the policy) because it reduces the danger of them getting shot by barging through the door. Coming from a Court that held that the US Gov’t can hold a citizen indefinitely without trial, this ruling is not all that surprising or earthshaking.
Because today’s police always behave professionally, except when you can, well, listen to them torturing a guy.(But note that article gets the entity incorrect and later issued a correction: It was not the 5 members of the Knoxville PD torturing the man it was the Campbell County Sheriffs Department .)
Would anyone have believed the torture victim if his wife had not flipped the on switch on her tape recorder? Would any complaint to anyone have gone anywhere at all?
Certainly Human Rights Watch does not share the SCOTUS’s Pollyannaish view of contemporary law enforcement and the supposed many remedies available to victims of brutality. From their report:
I have had a love/hate relationship w/ Scalia. I can’t see the love coming back soon, and right after I post this am removing from my email sig file his quote, which reads:
yet another jeff
No no…the constitution isn’t a living document, just the amendments. At least the 1st and 4th….
Why is my comment at 7:38 “awaiting moderation”?
Any comment with multiple links automatically goes into the moderation queue. At night and on the weekends you can’t count on a blogger being awake / sober / near the computer so it’s safe to stick to two or fewer.
I had a post go to moderation with two links. I took out one and it passed. Is it something you guys can configure?
This was main reason Bush needed to be defeated in ’04, his ability to appoint Supremes. He and his ideology will slowly but surely begin to take away our basic rights and once those rights have eroded or disappeared they will be very difficult to get back.
G. Gordon Liddy
Head shots, head shots….
Tim: I think you have some good points and I’m not going to argue. I just wanted to give the link to the opinion and make two points. 1) There is still a remedy for the violation, just not exclusion. The adequacy of a remedy without exclusion is a good topic for thinking about – does every constitutional violation result in exclusion – no. Which leads to 2) There is an interesting thread regarding the connection between the violation and it leading to the evidence (the fruit of the unlawful conduct). Whether the police knock is missing that thread (at least in this case.) The police had a warrant to go in, they just didn’t knock and yell police and count to five or whatever. I haven’t had a chance to digest it all yet but the opinion is quite readable so far and Kennedy’s concurrence addresses some of your concerns.
First people who should be searched are those numbnuts who say “Well, I don’t mind being searched, because I have nothing to hide.”
Good for Pelosi. She tried to do this weeks ago and Jefferson was indignant. Once he realized he was going down today, he tried to go to Pelosi to quietly step aside, and she said, “Too late.” And held the vote anyway.
Screw that guy. I hope he sees fit to step all the way down and give up his office…
The Other Steve
Right, and I guess my feeling is that I think this is wrong. I think there is an expectation that the police should knock on your door and show some respect for your property. This respect for property is the basis of our entire country.
On the other hand, if there is a reasonable suspicion that the guy is violent and knocking is going to give him time to get his gun. Well, there ought to be a special warrant available for that situation. That is, the argument should be made to a judge. I believe they call these no-knock warrants?
So it seems to me that we have the permission aspect in place.
What is at issue here is the exclusionary bit. I don’t buy the 30-day suspension thing, as I have this suspicion that cops who are suspended are getting help from the fraternal order of bad police officers and they don’t really lose anything.
But I also don’t want crooks to get away on technicalities so easily.
Steve seems to imply that we may be the only country with this exclusionary rule. I am curious how other enlightened societies like Britain, Germany, Japan and France deal with this.
I know how Russia deals with it, if the police are knocking down your door it’s probably because you didn’t pay your monthly bribe to the Mafia.
And what punishment is there for police departments that commit consitutional violations? Lessee…..you could bring suit against the department….oh wait, no…..SCOTUS, led by Scalia, has expanded the doctrine of sovereign immunity to such a degree that it’s all but impossible to sue police departments, even if you could get a 1983 claim past the summary disposition part. You could file a complaint against the department….oh wait, no…that would immediately go in the circular file. Any other bright ideas out there? No…it seems that pretty much the only penalty for constitutional violations is the exclusionary rule, and what Scalia has just ruled is that while, yes, failing to obey knock and announce is bad, mmmmkay….there’s no real reason why you shouldn’t do it….mmmmkay?
And even worse, he’s now laid down the precedent to start over turning every single exclusionary rule case. Scalia has a well documented history of opposition to the rule, but really, what else is there? Can somebody think of a penalty that will insure an investigation is done correctly following constitutional safeguards? Anyone? Bueller?
The Other Steve
Mr. Furious – Saw that on msnbc.
I think what’s interesting is the Democratic reaction to all this, as it’s been consistently… My god, kick the guy off already.
This in comparison to the Republicans who tried everything they could to change their own rules to keep Delay on as leader even after he’d been indicted on money laundering charges. And they’re still screaming that the charges were politically motivated.
There was another news bit out today that Hastert apparently influenced a highway project to be built next to a large parcel of farm land he owned. And conveniently after the highway went up, he started developing his land for houses. Lucky guy… I wish I could get a job like that.
Culture of corruption, indeed.
You can make a lot of money in real estate. Senator Murkowski’s mom apparently owns a nice parcel of land that will get connected to the mainland by the Bridge to Nowhere – funny how that works, huh?
We are on a fast pace of moving to a Police State as was the case in Hitler’s Germany!
This ruling takes rights away. Yes, it reaffirms that police have to knock, but it destroys the exclusionary rule. Basically, it says to police: knock and then do whatever the hell you want to do. I’ve commented more here:
Was the guy in the case guilty? It sounds like he was. So justice was served. I think it is silly to get hung up on the process in a case where the end result was the right one. It’s the kind of extreme hair-splitting that the ACLU and some civil libertarians on the right, as well, seem to prefer to actual justice.
That’s right, Mike. The ends always justify the means. So what if the police kick the crap out of a guy too. As long as he was guilty of something.
That’s right, Richard. Kicking the crap out of someone is the same thing as searching without knowing that the search might require a warrant.
People arming themselves.
Civil suits aren’t at all uncommon, despite Salvo’s remarks. Police don’t regard a suspension as anything but a public humiliation so, even if you think its inadequate, its not a joke – its a real penalty.
Not every violation of a person’s rights implicates the exclusionary rule. Why should it implicate the exclusionary rule here? Merely because it happened in the course of a search and seizure? There is nothing about the impropriety (failure to announce) that led to the seizure. Maybe this represents setting a boundary on the exclusionary rule and preventing further expansion of it rather than a shrinking of it.
The Other Steve
Even though slickdpdx is a moron, I kind of agree with him here.
I don’t like letting obvious criminals go free on technicalities. There ought to be a different system in place to assure the police are working within the framework of the law, and the bad cops don’t stay on the streets.
Sorta…. Actually, the concept of requiring the police to announce their presence and provide residents an opportunity to open the door goes all the way back to English common law. Scalia acknowledges this in his opinion.
Scalia also acknowledges that there are several exceptions to knock & announce: threat of physical violence, reason to believe evidence would be destroyed, and knocking & announcing would be “futile.” The requirement is only that police have a reasonable suspicion that one of these exceptions apply. If they DO decide to knock, they have to provide a “reasonable wait time.”
Here’s the problem with the Court’s decision, IMHO: the cops in this case DID knock and announce – the problem was that they waited only 3-5 seconds before busting in the door. The Court could have ruled on this case in an entirely different way, but they consciously chose NOT to (i.e., the Court could have ruled that the wait was reasonable under the circumstances). But, the state of Michigan “conceded” that they violated the knock & announce rule, providing Scalia and his allies the perfect opportunity to start chipping away at the exclusionary rule.
The exclusionary rule, while it can be very heavy handed, is incredibly important and a necessary check on the police – they are much less likely to violate someone’s rights knowing that the evidence they gather will be thrown out.
Now, in the case of knock & announce, they don’t have to worry about that. Check out Breyer’s dissent:
The Fourth Amendment as Legal Fiction
Thanks Other Steve!
Some nitwit writes:
Right. On the other hand, I note that you are still at liberty and posting every little brain fart that comes along.
I can see the argument for both sides of this. What I CAN’T see is how this erodes “a corner of the Bill of Rights”. Maybe you missed this, but you did put it right in your post, so say it again with me,
Golly, that makes it all of 45 years old. The idea that “not being seen in your underclothes” should be a significant enough reason to exclude evidence is ludicrous, frankly.
There is a slippery slope to be concerned with and I, for one, seriously question the power placed in the hands of police in ANY form, really, but the outrage over this is ridiculous. Maybe the pendulum had swung a little TOO far in the direction of “criminal’s rights”. Just a thought.
But don’t mind me, keep on touting that the next step is imprisoning lefties.