As I pointed out in a piece published on Sunday, the reason narcotics officers can get away with it goes back to another Supreme Court case — 2006’s Hudson v. Michigan. In that case, the court ruled 5 to 4 that, while the Fourth Amendment does indeed require police to knock and announce, violations of the knock-and-announce rule would not result in the suppression of any evidence seized in the ensuing raid. In the majority opinion, Justice Antonin Scalia argued that there were other remedies for violations of the rule, such as civil liability (lawsuits) or internal professional discipline.
As David Moran — the attorney who argued for the losing side in Hudson — told me, Scalia’s remedies have proven insufficient to deter these violations. And, in fact, those of us who were concerned about these sorts of raids predicted at the time that the court’s ruling in Hudson would result in, well, exactly what we’re now seeing in Little Rock.
There’s lot of debate about the Exclusionary Rule, which says any incriminating evidence that police obtain during an illegal search can’t be used against a defendant at trial. Conservatives have long argued that the rule only protects the guilty, since innocent people won’t be in possession of incriminating evidence, regardless of the legality of the search. And even some supporters of the rule have argued that it doesn’t have much value as a deterrent.
What is happening in Little Rock would seem to refute both arguments.
Let’s take the first argument, that the rule only protects the guilty. To examine this, let’s assume that (a) the Supreme Court had ruled the other way in Hudson, and (b) the Exclusionary Rule is an effective deterrent against violations of the knock-and-announce rule. Even assuming both of those things, the innocent people wrongly raided by Little Rock police over the last few years would still likely have been visited by the SWAT team. But instead of having their doors blown off their hinges, incurring thousands of dollars of damage to their homes and facing eviction from their apartments, not to mention experiencing a lot of trauma, the SWAT team would have been required to knock on the door, announce themselves, and give these suspects sufficient time to answer to avoid the violence of a “dynamic entry.” (I should note here that even when police do knock and announce, they often do so just as the battering ram hits the door, which basically nullifies the difference between a no-knock and a knock-and-announce warrant. But in this hypothetical, we are assuming the courts are properly enforcing the rules, so those raids would also be violations of the knock-and-announce rule.)
I would suggest that, if you ask the people on the receiving end of these raids, the opportunity to avoid the violence visited upon their homes would be pretty significant.
So let’s look at the second question. Is the Exclusionary Rule an effective deterrent? That is, if the courts refused to admit incriminating evidence every time Little Rock police officers violated the knock-and-announce rule, would that punishment persuade them to abide by it?
It turns out Little Rock may be an ideal place to test this theory. I didn’t include this in my original piece because it was already pretty long, but Arkansas actually has an additional search warrant requirement: Forced-entry raids must be conducted during day hours — between 6 a.m. and 8 p.m. If the police want to serve a warrant at night, they have to explain to a judge why that particular timing is necessary. Moreover, the Arkansas Supreme Court has ruled that when police violate this rule, any incriminating evidence they find cannot be used at trial.
So here we have two rules that apply, not to whether a search warrant should be granted, but how the warrant should be served. One of these rules is enforced by suppressing evidence when police violate it, and one of these rules is not. Seems like an ideal test of the deterrent value of the Exclusionary Rule.
So what did we find out? Let’s look first at the knock-and-announce rule. I examined 105 warrants served between 2016 and 2018. In each one, the police requested permission for a no-knock raid. In at least 103 of the 105, that request was granted by a Little Rock judge. (In two instances, the page of the warrant in which the judge provided instructions on knock-and-announce was missing.) Moreover, in 97 of the 105 cases, the police provided no specific information for why the suspect named in the warrant merited a no-knock raid. In two other cases, the police cited a suspect’s conceal carry permit as evidence of that suspect’s potential threat to officer safety — a dubious proposition at best.
So 97, and possibly 99, of these 105 warrants were in violation of the Fourth Amendment. I think it is safe to say that, contrary to Scalia’s opinion, lawsuits and internal discipline are providing very little deterrence here. And Little Rock residents have very little protection against having their Fourth Amendment rights violated by illegal no-knock raids.
Now let’s look at the other rule. The time-of-day requirement is enforced by suppressing evidence when police violated it. And of the 105 warrants I reviewed, 80 included directions from Little Rock judges stating that the warrant was to be served either “anytime day,” or “between 6am and 8pm.” In 22 cases, the judges specified that warrants be served “anytime day or night,” and one warrant did not specifiy a time. (Here again, two warrants were missing the page where you’d normally find these instructions.) From what I can tell, of the 80 instances in which a judge instructed Little Rock police to serve the warrant during the day, the officers complied with those instructions.
It is worth noting that in the 22 cases in which a judge gave permission for night service, it isn’t exactly clear why. Only one affidavit specifically requested permission. And, while in some of these cases the suspect seemed possibly dangerous, or seemed like a major drug distributor, that certainly wasn’t the case in all 22 — eight warrants were only for marijuana and, in four others, the only evidence the police provided was an anonymous tip and/or a sift through the suspect’s trash.
That said, the comparison is pretty compelling. When Little Rock police and judges know a rule will be enforced by suppression of evidence, they complied with that rule at least 76 percent of the time. (It could be more, depending on how many of the 22 exceptions were legitimate.) But when it’s a rule not enforced by suppressing evidence, they at most complied 8 percent of the time.
In Little Rock, at least, the Exclusionary Rule matters.