Court Eases 'No Knock' Search Ban

By Charles Lane
Washington Post Staff Writer
Friday, June 16, 2006

The Constitution does not require the government to forfeit evidence gathered through illegal "no knock" searches, the Supreme Court ruled yesterday, in a far-reaching ruling that could encourage police with search warrants to conduct more aggressive raids.

The 5 to 4 decision broke with the court's modern tradition of enforcing constitutional limitations on police investigations by keeping improperly obtained evidence out of court. The "exclusionary rule" has been imposed to protect a series of rights, such as the right to remain silent in police custody and the right against warrantless searches.

But the broadly worded majority opinion by Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., suggested that the nation has moved into a new era of improved policing in which such strong medicine may no longer be justified.

The ruling underscored the court's rightward shift since Alito replaced Justice Sandra Day O'Connor, who seemed to disagree with Scalia about the case while she was on the court. And it once again focused attention on the pivotal role of Kennedy, a moderate conservative, who supplied a fifth vote to the majority while issuing a separate concurring opinion that disavowed a portion of Scalia's opinion and asserted that it did not portend any broader erosion of the exclusionary rule.

At issue in yesterday's case, Hudson v. Michigan , No. 04-1360, was the "knock and announce" rule, which has deep roots in Anglo American law. In 1995, the court made it part of what defines a "reasonable search" under the Fourth Amendment, without saying how it should be enforced.

But most federal and state lower courts to consider the matter have ruled that it should be enforced through an "exclusionary rule," along with the rest of the Fourth Amendment.

Before yesterday's decision, police executing a search warrant in most jurisdictions had to worry that they might lose a case if they did not first knock on the door, announce themselves and wait a reasonable time for a response before forcing their way in.

Now, unless state law says otherwise, the most they would face is administrative discipline or a lawsuit for damages.

Civil liberties groups and defense lawyers had argued to the court that those deterrents are far too weak to enforce the "knock and announce" rule, which, they argued, is often all that stands between an innocent citizen and an errant SWAT team.

That position was urged on the Supreme Court by attorneys for Booker T. Hudson Jr., a Michigan man convicted of drug possession after police found crack cocaine in his pockets during a 1998 no-knock raid that the state admitted was unlawful.

But Michigan's Supreme Court was one of the few lower courts to reject an exclusionary rule for "knock and announce" violations. Hudson's conviction was upheld, and he appealed to the U.S. Supreme Court.

Scalia's opinion focused on the guilty defendants who go free when otherwise valid evidence is thrown out of court. He concluded that that "social cost" is too high in relation to whatever additional privacy protection residents get from the "knock and announce" rule.

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