Remember the “knock and announce” rule? Well, it just got knocked over the fence:

A divided Supreme Court ruled today that evidence can be used against a defendant even when seized in violation of a long-standing rule requiring a knock on the door before executing a search warrant. The 5-4 decision, written by Justice Antonin Scalia, ran counter to previous decisions requiring suppression of evidence obtained in violation of the so-called “knock-and-announce” rule. […]

Today’s case, Hudson v. Michigan , stemmed from a 1998 drug and weapons search, authorized by a warrant, of a home in Detroit. While the officers yelled, “Police, search warrant!” before opening the door, they chose not to knock, they said later, for fear of being shot on the way in.

Having acknowledged that they broke the rule required under the Fourth Amendment’s search-and-seizure protections, the question today was whether the evidence was then properly admitted at a trial that led to the conviction of Booker T. Hudson Jr. or whether it should have been suppressed under the “exclusionary rule” established by the Supreme Court to deter unlawful police conduct.

Basically the cops can now break the rules & as long as they say “whoops” it doesn’t matter in court. Wonderful.

First thing leaping out at me about this is the stated excuse by the police, that they feared being shot. Curious logic behind that: they assumed that the person knew they were coming and prepared to open fire, yet knocking or not wouldn’t be a factor since they announced their prescense anyway. On top of that, the fear excuse itself is ridiculous — these are COPS we’re talking about! The risk of being shot is part of their job, the type of person that cannot do their duty by the book out of fear for themselves is the wrong person to have a gun & a badge. Besides, based on the description of the search, them being shot at should’ve been expected, not feared (although, it didn’t happen).

It may seem like a tiny formality, but the rules turned out the way they did for a reason. To me, it sounds like the rule not only protected people from unreasonable searches (bursting into the wrong house unnanounced) but also in a way protected the cops by giving a way to distinguish between a cooperative suspect & someone they may have to use deadly force against: the type of person that would hear the police say they’re the police & knock before entering probably isn’t the type to be waiting right behind the door with an AK.

So why did they rule the way they did? What say we go straight to the source:

Justice Scalia delivered the opinion of the Court with respect to Parts I, II, and III, concluding that violation of the “knock-and-announce” rule does not require suppression of evidence found in a search. Pp. 2-13.

(a) Because Michigan has conceded that the entry here was a knock-and-announce violation, the only issue is whether the exclusionary rule is appropriate for such a violation. Pp. 2-3.

(b) This Court has rejected “[i]ndiscriminate application” of the exclusionary rule, United States v. Leon, 468 U. S. 897, 908, holding it applicable only “where its deterrence benefits outweigh its ’substantial social costs,’ ” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 363. Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion. Attenuation can occur not only when the causal connection is remote, but also when suppression would not serve the interest protected by the constitutional guarantee violated. The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant.

Since the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

I followed that first citation & found the following line:

Indiscriminate application of the exclusionary rule - impeding the criminal justice system’s truth-finding function and allowing some guilty defendants to go free - may well generate disrespect for the law and the administration of justice.

One thing that I’ve noticed about judicial philosophy is that it is never an all or nothing view: “strict constructionists” at times rule based on things that couldn’t possibly have been gleaned from the intent of the ones who wrote the law in question, & “living constitution” types occasionally refer to intent. There are gray areas, and the reaction to coming across those has an effect that multiplies over time. Since they refer to this previous ruling for that rhetoric about “indiscriminate application”, it’d be appropriate to wonder if maybe this is a chicken-or-egg thing: does the exclusionary rule cause disrespect for the law, or does disrespect for the law (by the law enforcers) cause the exclusionary rule to apply more than expected?

This ruling was ostensibly about the 4th Amendment. Somewhere along the line though, they came to that gray area & decided not because the intent up to that point suggested to them that the evidence in this case was not to be excluded, but because of a stereotypical “law & order” view that suspects have too many rights in this country. IMO this is a dangerous view for the highest court in the land to hold, even if the substance of the ruling itself proves minimal.

Others on this:

-Orin Kerr, noting the oddity of Scalia using a “living constitution” view to decide on this.

-Radley Balko — who was actually cited in Breyer’s dissent — questioning the statement within the ruling that civil suits are a more acceptable deterrent to overaggressive cops.

-SCOTUSblog anlaysis. Excerpt:

…the opinion regularly employs language that questions the real value of the knock-and-announce rule. The privacy interests are analyzed in less-than-expansive ways, especially when contrasted with the opinion’s lament over the loss of criminal evidence. The right at issue, the opinion remarks at one point, is a “right not to be intruded upon in one’s nightclothes.” It also places much stress on the uncertainties that police confront in trying to obey the knock-and-announce rule. It does not directly question that the rule remains alive, but it relies mainly on a concession by the state of Michigan for that proposition (emphasis mine)