Erosion: Supreme Court Issues Decision on Search and Seizure

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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
– U.S. Constitution, 4th Amendment

Main Entry: erode
Pronunciation: i-'rOd
Function: verb
1 : to diminish or destroy by degrees: a : to eat into or away by slow destruction of substance (as by acid, infection, or cancer) b : to wear away by the action of water, wind, or glacial ice c : to cause to deteriorate or disappear as if by eating or wearing away
- Webster's Dictionary

In Weeks v. United States (1914), the U.S. Supreme Court created the “exclusionary rule,” interpreting the 4th Amendment to state that evidence collected in violation of the 4th Amendment isn't admissible in a criminal trial. In 1961, the Supreme Court, in Mapp v. Ohio, made the exclusionary rule binding on the states of the union. In 1995, the Supreme Court made an exception to the exclusionary rule: That a police officer doesn’t have to “knock and announce” his or her presence when he or she has a “reasonable suspicion” that (i) there's a threat of violence within the home, (ii) there’s reason to believe evidence will be destroyed if advance notice were given, or (iii) knocking and announcing would be futile. In short, until yesterday, we’ve always had the general expectation of privacy in our homes; typically, if the cops want to come inside, they have to knock first and wait a reasonable amount of time before kicking down the door, unless they have reason to suspect foul play within.

Supreme Court.bmp But my, how times have changed. Yesterday, the Supreme Court issued its decision in Hudson v. Michigan, verifying that the people who were worried about Bush’s recent appointees for the Court were at least partly justified in their fears. In Hudson, the Detroit police had a warrant to search for drugs in the home of Mr. Booker T. Hudson, Jr. At the door they announced their presence, but didn’t knock (as is required by the “knock-and-announce” rule established by previous Supreme Court cases). The police waited about 5 seconds before opening the unlocked door and walking in. While it was obvious court that this was an “illegal search” in violation of the 4th Amendment, the question posed by Michigan courts was whether the exclusionary rule should actually be enforced to exclude the evidence found in Hudson's home.

In a 5-4 decision (the newly-appointed Justice Sam Alito cast the deciding vote), the Supreme Court held yesterday that evidence found by cops who enter a home to execute a search warrant without first obeying the “knock-and-announce” requirement or, alternatively, having good reason to enter can actually be used at trial despite the clear constitutional violation. Justice Stephen G. Breyer, who wrote the dissenting opinion, fired back that the majority’s ruling “weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection.” He further went on to suggest that Hudson may well be the Supreme Court case that finally renders the 4th Amendment essentially meaningless. Whereas before, the police could only enter without knocking and announcing their presence in "exigent" circumstances, Hudson practically lays down the red carpet for the cops to waltz right through your door whenever and however they please.

Antonin Scalia.bmp This may sound scary, but fellow citizens, rest assured, it’s not so bad! Justice Antonin Scalia – you remember, the Supreme Court Justice who goes duck hunting with Dick Cheney and yet incredibly remains impartial as a judge – he’ll ease your trepidations and frights! According to Justice Scalia, who wrote most of the Hudson opinion, people subject to an improper police search will still be free to sue the police department afterward. So what’s the big deal? The cops come in without knocking or announcing their presence, lacking any valid suspicion for doing so, they find some incriminating evidence in your house, you go court, where the evidence is used against you and you’re convicted…but hey, stop complaining! Buck up, convict! You can sue the police department from jail!

Scalia conitnued in the Court's majority opinion, making plain his view that the real right at issue here was a trivial one at best: “The right not to be intruded upon in one's nightclothes.” While this is an important right, Scalia concluded, it’s not so important when compared to the "grave adverse consequences that exclusion of relevant incriminating evidence always entails."

You know, we tend to agree with Scalia here. To us, it’s always seemed that the Constitution for which American soldiers have bled and died on the field of battle for a few hundred years now – from the American Revolution up to the present day – was really more of a tool for making our lives more convenient, rather than a safeguard that prevents Orwell’s predictions from coming true. You see? All the American soldiers that have died, they died for the sake of convenience, not freedom and rights and all that nonsense. It's clear now, isn't it? Scalia makes perfect sense when he suggests in Hudson that evidence illegally obtained by the cops in a search of your home can nevertheless be used at trial – after all, the 4th Amendment and the exclusionary rule are simply there to make sure the cops don’t barge in at 4 a.m. and catch a peek at us in our nightshirts, not even properly dressed to greet our surprise guests! The shame! Not even a chance to provide decent hospitality!

Thanks to Scalia, we have seen the error of our vain ways: Far more important is it that the cops have a more convenient, simplified way to put us all behind bars than it is for us to look presentable when they kick in the door. And you thought the Supreme Court was out of touch with reality. Hah.

Further reading:
NPR story
FindLaw story
CNN story
The Exclusionary Rule
Search and seizure
The “knock-and-announce” rule

*Images courtesy of The U.S. Goverment, The U.S. Supreme Court, and Wikipedia, respectively.

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By s in News, Other on June 16, 2006 2:19 PM 0 Comments

Comments [rss]

SN

Besides, if you can't use a little colorful retoric when you're talking about issues like the US Constitution, Liberty, the American way of Life, and the men and women who keep us safe, when can you use it? Maybe only in a Toby Keith song?

doug

I don't think this is petty. It will certainly hinder defenses on 4th amendment grounds.

I do not believe it will lead to police officers randomly banging down doors of innocent people, or even getting the occasional bad guys through sheer luck.

What it will lead to is some confusion on the part of officers as to whether or not they've acted in accordance with sometimes contradicting and vague case law.

doug

I don't think this is petty. It will certainly hinder defenses on 4th amendment grounds.

I do not believe it will lead to police officers randomly banging down doors of innocent people, or even getting the occasional bad guys through sheer luck.

What it will lead to is some confusion on the part of officers as to whether or not they've acted in accordance with sometimes contradicting and vague case law.

anon

Don't you love it when a lefty post of the truth about a matter is presented and how a civil right was clearly violated by prior Supreme Decision somehow becomes petty in the eyes of the right? Imagine what would happen if we just let them intepret everything for their own personal benefit in a cse by case basis.

Oh wait, that's kind of what they're doing now.

zach

Sometimes one must stir emotions to move people to think or perhaps even act.

It got you moving....granted it was in the form of a blog response, but hey....

2 cents

centrum

meaning...?

spencer

Friendly reminder: This is a blog, not cnn.

regards,

s

centrum

correction:

"libertarian or civil libertarian stripe"

Centrum

First of all, involving "our troops" and death and blood is pure rhetoric. it's incendiary and a cheap way to rouse emotions. It implies that if you support this ruling, you are unpatriotic and that you do not value the sacrifices made by previous generations so that we can sit around and provide drug dealers with markets. It broadens the scope to a political level in a way that is journalistically irresponsible.

Reagrdless, I suppose you can see this as chipping away at our civil liberties. Today, no more knock and announce requirement, tomorrow we all dine on the "fruit of the poisonous tree?" Do you think it is Alito and Co.'s goal to try to do away with individual liberties and grossly enlarge the power of the state relative to the individual? I know that that is a part of leftist rhetoric, that they are trying to destroy the constitution in pursuit of fascist power, but don't you think that the libertarian sway of the right has a strong interest in freeing individuals from government interference? If you do not come into the purview of drugs or terrorism, the chance of your rights being impinged are minute. What the ACLU and other organs fail to realize is that most rightists and centrists want the government off their backs too. I imagine there are good numbers on both sides of the ideological divide that want a command-control government in the pursuit of efficiency, effectiveness, and institutional convenience, but whether you fall under the libertarian of civil libertarian stripe, you want the same thing, you just think you can get it in different ways...

Jooley Ann

Hey, thanks very much Doug. Your experience is extremely enlightening. Honestly, I wish the media (okay, in my case read: "I wish NPR") would interview more people whose daily work brings them into contact with the rules & requirements ultimately created out of SCOTUS decisions such as these. Would be a lot more meaningful, IMO.

Doug

Specifically in response to Jooley Ann:

"Probable cause" is the totality of the evidence which would lead a reasonable person to believe that a crime has been, is being, or will imminently be committed. In the context of this story, it is the reasonable belief based upon the totality of the circumstances that evidence of a crime is kept at a specific address. That probable cause is what is required to get a search warrant.

In Texas, an officer must swear an affidavit before a judge that (1)a crime has been committed, (2)evidence of that crime against a specific person can be found in a specific place, and (3)there is a specific victim. The affidavit must satisfy the judge, with proof, that these conditions exist. Paraphrased from: (http://www.capitol.state.tx.us...

This decision does not free police from these requirements. It does not allow police to make unwarranted searches, nor allow the introduction of evidence found in unwarranted searches. It seems to allow evidence obtained during a warranted search when entrance was made...dubitously. The question it seems to raise is, does a search warrant justify any manner of entrance into that specific private residence?

My disclaimer: I'm a cop. Performing my duties while protecting civil rights is a responsibility that I take seriously.

spencer

The present standard is pretty much a "reasonable officer" standard (e.g., was the officer's suspicion reasonable under the circumstances?).

In this case, it seems pretty clear that the Supreme Court wants to discard the "reasonable officer" standard entirely, and simply believe every cop in every instance. If the reasonableness standard is removed, we will trust every officer's judgment in every search warrant instance.

The main issue here is, of course, the discarding of the Exclusionary Rule. If that's also done, what we have is a situation where (i) cops have, in effect, unlimited discretion in whether to knock and announce, and (ii) the evidence gathered from these instances will ALWAYS be allowed at trial.

Sounds a little unreasonable to me.

Jooley Ann

I was under the impression that there *already was* a provision for warrants that *waived* the "knock and announce" requirement if the searchee was either dangerous or likely to destroy evidence.

If, in today's system, "personal knowledge" is truly needed in order to waive "knock and announce", then perhaps it's a good idea to give cops the right to barge in when they feel it's safer or necessary. On the other hand, if the only thing that's needed to waive "knock and announce" is a rap sheet, or suspicion on the warrant-server's part, or some other such thing, then why change the way things currently work?

In the long run, I'd rather hear from someone with experience in these matters as to whether or not the current system really creates danger, frequently, for cops serving warrants. Conjecture on the matter -- where no experience exists (other than, uh, cop shows) -- is pointless.

spencer

well, i guess read each of those comments in total. a case of premature post-ulation.

spencer

Certainly removing the knock and announce rule will help police officers do their job when it comes to getting evidence against real criminals. As you said, in cases where the people in the house are in fact involved in law-breaking, well then catching them red-handed is much easier with this ruling.

One problem here is that it's not quite as difficult to acquire a search warrant as you suggest. Certainly, in theory, it is. Yet in practice it's somewhat different. As you know, officers essentially have to show "probable cause," which is not really too high of a burden to meet. Only later, in court, must the defendant be exonerated beyond "reasonable doubt," a higher standard. To honestly believe that every person upon whom a search warrant is issued is actually guilty reveals a strange assumption: That the police and courts issuing warrants never make mistakes. I respect the police and the courts, of course. It's just that they're human, and as such they're not perfect. This ruling just gives free reign to their judgment without enough check.

Now, you may be right in that this court ruling will ONLY make it harder for crooks to "flush the drugs" or whatever else before they answer the door. I certainly hope you are. I honestly don't know what will happen here. What I do know is that, when I see basic freedoms with which Americans have lived for so many years being disregarded with such simple ease, it makes me pretty nervous. And once we start removing these basic freedoms, I find it's often very hard to stop ("slippery slope"). I think American history is a strong indicator of this human tendency.

As far as the yellow journalism thing goes, and the "liberal" comment...well. I think you're being sorta silly.

spencer

Certainly removing the knock and announce rule will help police officers do their job when it comes to getting evidence against real criminals. As you said, in cases where the people in the house are in fact involved in law-breaking, well then catching them red-handed is much easier with this ruling.

One problem here is that it's not quite as difficult to acquire a search warrant as you suggest. Certainly, in theory, it is. Yet in practice it's somewhat different. As you know, officers essentially have to show "probable cause," which is not really too high of a burden to meet. Only later, in court, must the defendant be exonerated beyond "reasonable doubt," a higher standard.

Now, you may be right in that this court ruling will ONLY make it harder for crooks to "flush the drugs" or whatever else before they answer the door. I certainly hope you are. I honestly don't know what will happen here. What I do know is that, when I see basic freedoms with which Americans have lived for so many years being disregarded with such simple ease, it makes me pretty nervous. And once we start removing these basic freedoms, I find it's often very hard to stop ("slippery slope"). I think American history is a strong indicator of this human tendency.

As far as the yellow journalism thing goes, and the "liberal" comment...well. I think you're being sorta silly.

Centrum

Well spence, have to say this is some yellow yellow journalism. Soldiers bleeding and dying for the "knock and announce" rule of evidentiary exclusion? Are you the liberal Rush Limbaugh?

You know what it takes to get a search warrant, what difference does it make if they "knock and announce" (giving the searchee time to clean up, flush down (goodfellas?), and lock and load), announce (just lock and load), or kick the door in. If you have a warrant to go arrest someone, you shouldn't have to have personal knowledge that the searchee is armed and dangerous. If he belongs to a dangerous class (i.e. high volume drug dealers) the government should not make officers lives more dangerous than they already are.

Not that it matters in Austin, this is not exactly gangland. (see Houstonist)

kenneth

Thanks for that fine SCOTUS tutorial, Spencer. People need to be better informed on how this Roberts/Scalito court is slowly chipping away our privacy rights.

Ben Franklin was right: "Those who would trade essential liberty for a little extra security deserve neither liberty nor security."