June 16, 2006, NYTimes
Court Limits Protection Against
Improper Entry
By LINDA GREENHOUSE
WASHINGTON, June 15 — Evidence found by police officers
who enter a home to execute a search warrant without first
following the requirement to "knock and announce" can be
used at trial despite that constitutional violation, the
Supreme Court ruled on Thursday.
The 5-to-4 decision left uncertain the value of the "knockand-announce" rule, which dates to 13th-century England as
protection against illegal entry by the police into private
homes.
Justice Antonin Scalia, in the majority opinion, said that
people subject to an improper police entry remained free to
go to court and bring a civil rights suit against the police.
But Justice Stephen G. Breyer, writing for the dissenters,
said the ruling "weakens, perhaps destroys, much of the
practical value of the Constitution's knock-and-announce
protection." He said the majority's reasoning boiled down to:
"The requirement is fine, indeed, a serious matter, just don't
enforce it."
The decision followed a reargument less than a month ago,
with the newest justice, Samuel A. Alito Jr., evidently casting
the decisive vote. Justice Breyer's dissenting opinion was
clearly drafted to speak for a majority that was lost when
Justice Sandra Day O'Connor left the court shortly after the
first argument in January.
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The justices' lineup in this case, which upheld a Detroit
man's conviction for drug possession, may become a familiar
one as the court proceeds through its criminal-law docket. In
addition to Justice Alito, those who joined the majority
opinion by Justice Scalia were Chief Justice John G. Roberts
Jr. and Justices Clarence Thomas and Anthony M. Kennedy.
Justice Breyer's dissenting opinion was joined by Justices
John Paul Stevens, David H. Souter and Ruth Bader
Ginsburg.
The decision answered a question that the court had left
open in 1995, when it held in a unanimous opinion by Justice
Thomas that the traditional expectation that the police
should knock and announce their presence was part of what
made a search "reasonable" within the meaning of the
Fourth Amendment. The amendment bars unreasonable
searches.
In that case, Wilson v. Arkansas, the court declined to say
what the remedy should be for a violation of the knock-andannounce rule. Ordinarily, evidence that is seized illegally —
in the absence of a warrant, for example — may not be used
at trial, under what is known as the exclusionary rule.
By a strong majority, most state and federal courts that have
considered the issue have applied the exclusionary rule to
violations of the knock-and-announce requirement. In its
decision on Thursday in Hudson v. Michigan, No. 04-1360,
the Supreme Court upheld a ruling by the Michigan Court of
Appeals, one of the few courts to have rejected the
exclusionary rule in this context.
In the case, the Detroit police had a warrant to search for
drugs in the home of Booker T. Hudson Jr. At his unlocked
door, they announced their presence, but did not knock and
waited only three to five seconds before entering, not the 15
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to 20 seconds suggested by the Supreme Court's precedents.
Had the police observed a longer wait, they would have
executed the search warrant and found the evidence anyway,
Justice Scalia said. That made the connection between the
improper entry and the discovery of the evidence "too
attenuated" to justify the "massive remedy of suppressing
evidence of guilt."
Justice Scalia said the knock-and-announce rule was
designed to protect life, property and dignity by giving the
homeowner time to respond to the knock and eliminating
the need for the police to break down the door. But he said
the rule has never protected "one's interest in preventing the
government from seeing or taking evidence described in a
warrant."
Throughout his opinion, Justice Scalia made clear his view
that the right at issue was a minimal, even trivial, one — "the
right not to be intruded upon in one's nightclothes," he said
at one point — that could not hold its own when balanced
against the "grave adverse consequences that exclusion of
relevant incriminating evidence always entails."
The majority opinion was sufficiently dismissive of the
exclusionary rule as to serve as an invitation to bring a direct
challenge to the rule in a future case.
Justice Scalia surveyed changes in the legal landscape since
1961, when the court in the landmark case Mapp v. Ohio
made the exclusionary rule binding on the states. Noting that
the purpose of the exclusionary rule was to deter
constitutional violations by making them costly for the
prosecution, Justice Scalia said there was less need for
deterrence today, when the police are better trained and
when the ability to bring civil rights suits against the
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government has greatly expanded. Under current federal
law, he noted, successful civil rights plaintiffs are reimbursed
for their attorney fees.
The conditions that made deterrence necessary "in different
contexts and long ago" no longer exist, Justice Scalia said,
adding that a strict application of the exclusionary rule as
envisioned by the court in 1961 "would be forcing the public
today to pay for the sins and inadequacies of a legal regime
that existed almost half a century ago."
It is rare to find Justice Scalia, a self-described "originalist,"
incorporating evolving conditions into his constitutional
analysis. Almost always, when the court in a constitutional
case takes account of changing conditions, the result is an
expansion of constitutional rights, rather than, as Justice
Scalia advocated in this case, a contraction.
One puzzling aspect of the decision was a concurring opinion
by Justice Kennedy, who said that he wished to underscore
the point that "the continued operation of the exclusionary
rule, as settled and defined by our precedents, is not in
doubt." Nonetheless, he signed the part of Justice Scalia's
opinion that suggested that the exclusionary rule rested on
an increasingly weak foundation.
Justice Breyer argued that "the court destroys the strongest
legal incentive to comply with the Constitution's knock-andannounce requirement. And the court does so without
significant support in precedent."
He called the majority's argument "an argument against the
Fourth Amendment's exclusionary principle itself," adding,
"And it is an argument that this court until now has
consistently rejected."
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