Court Eases 'No Knock' Search Ban
Illegally Collected Evidence Allowed

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.

"Resort to the massive remedy of suppression of evidence of guilt is unjustified," Scalia wrote.

Scalia argued that the law enforcement landscape has changed dramatically since 1961, when the Supreme Court first imposed an exclusionary rule on the states to protect against warrantless searches. Today's police are more professional than those of 45 years ago, he observed, and there is "increasing evidence that police forces across the United States take the constitutional rights of citizens seriously."

In this environment, Scalia argued, lawsuits and administrative proceedings are enough to ensure that police comply with the "knock and announce" rule.

That line of reasoning prompted a 30-page dissenting opinion from Justice Stephen G. Breyer, who disputed Scalia's upbeat view of modern policing and argued that lawsuits and police discipline have already proved inadequate to punish and deter "knock and announce" violations.

"Today's opinion," Breyer wrote in dissent, "weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection." Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg joined Breyer.

Scalia's cost-benefit analysis could be invoked not only to deny a new exclusionary rule in this case, Breyer argued, but also to roll back the use of the exclusionary rule to enforce the Fourth Amendment in areas where it has long been recognized.

"The majority's 'substantial social costs' argument is an argument against the Fourth Amendment's exclusionary principle itself," Breyer wrote. "And it is an argument that this Court, until now, has consistently rejected."

Kennedy tried to diminish the apparent sweep of Scalia's opinion, indicating that "the continued operation of the exclusionary rule as settled and defined by our precedents, is not in doubt."

There was strong circumstantial evidence that, if O'Connor had not been replaced by Alito, Breyer would have been speaking for the court.

In January, when the justices heard the case and cast tentative votes, Connor was still on the court. Her comments at argument suggested she favored Breyer's view.

But after she left the court Jan. 31, the court announced the case would be reargued -- a sign that it had reverted to a 4 to 4 tie without her vote.

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