Privacy Case May Rest on Alito Vote

Forced Entry by Police at Issue

The Supreme Court heard a rare mid-May oral argument yesterday, on the authority of police to search private homes without knocking first -- in a major privacy-rights case likely to be decided by the vote of the court's newest member, Justice Samuel A. Alito Jr.

At issue in Hudson v. Michigan , No. 04-1360, is the "knock and announce" rule rooted both in the Fourth Amendment to the Constitution and Anglo-American common law. The rule says that, in normal cases, police with a search warrant must knock and state their purpose, then wait a reasonable period for an answer, before forcing their way in.

Most federal and state courts that considered the question have said courts must exclude evidence seized by police who did not follow the rule. But in recent years, the Michigan Supreme Court has joined the minority that says no such "exclusionary rule" is required.

When the court first heard oral argument on Jan. 9, Justice Sandra Day O'Connor was still on the bench. But O'Connor stepped down before the court could issue its opinion.

The court then announced it would hear arguments again. It gave no reason, but since it could have issued a decision if there were still five votes for one side without O'Connor, the most probable explanation is that the court was divided 4 to 4 and needed Alito, a former prosecutor who built a strong pro-police record as a federal appeals judge, to break the tie.

Liberals on the court openly worried that Michigan's approach would carry the day -- effectively gutting the "knock and announce" rule and, potentially, other restrictions on police searches.

Justice Stephen G. Breyer said that if the court rules in Michigan's favor, "we'd let a kind of computer virus loose in the Fourth Amendment. I don't know what the consequences would be."

Michigan courts upheld the 2002 drug possession conviction of Booker T. Hudson Jr., ruling that the officers who burst into his Detroit home three to five seconds after crying "Police! Search Warrant!" would have found crack cocaine in his jeans even if they had knocked and waited.

Under a 1999 Michigan Supreme Court ruling, defendants such as Hudson can prevail if only they show that the police's failure to knock directly caused the discovery of the evidence.

Michigan does not dispute that the officers technically violated the "knock and announce" rule. It argues, rather, that since they had a warrant, their presence in the house was legal even if the way they got inside was not.

Michigan also argues that the "knock and announce" rule can be adequately enforced by private lawsuits for damages against the police, or by internal police discipline -- a position echoed by the Bush administration, which supports Michigan.

But David A. Moran, a lawyer for Hudson -- who is also backed by the American Civil Liberties Union, the libertarian Cato Institute and the National Association of Criminal Defense Lawyers -- told the court that only the threat of excluding evidence is enough to protect citizens from the shock and embarrassment of a sudden police raid.