Editore"s Note
Tilting at Windmills

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June 15, 2006
By: Kevin Drum

KNOCK AND ANNOUNCE....Southern California Edison has graciously decided to restore electrical power to my home, and upon rebooting my PC I note that the Supreme Court has decided to eviscerate the Bill of Rights a bit further today. In today's ruling in Hudson v. Michigan they decided that even if police violate the "knock and announce" rule for serving search warrants, they can still use the evidence they seize in court. Kieran Healy comments:

By the by, Scalia, writing for the majority, is happy to set his originalism aside and argue that the growth of public-interest law firms and lawyers who specialize in civil-rights grievances ... [and] the increasing professionalism of police forces, including a new emphasis on internal police discipline ... [and] the increasing use of various forms of citizen review can enhance police accountability all mean that the fourth amendment can be reinterpreted.

This is, of course, why I decline to take originalism seriously. Even its proponents pretty obviously understand that it's ridiculous to pretend that nothing has changed in the past 200 years, and they mostly use originalism as little more than intellectual cover for making the conservative rulings they want to make anyway. But when conservative rulings require that originalism be tossed overboard, they do so without apology. Some doctrine, eh?

Kevin Drum 5:21 PM Permalink | Trackbacks | Comments (140)

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This is, of course, why I decline to take originalism seriously.

Judging the seriousness of a philosophy, legal or otherwise, by the honesty of its supposed adherents in high public office attained through highly political processes, is really unfair.

There are no doubt lots of serious originalists among legal scholars. Its just that none of them sit on the Supreme Court.

Posted by: cmdicely on June 15, 2006 at 5:29 PM | PERMALINK

Knock knock
"Who's..." *crash*
"It's the ghost of the Motherfucking Fourth Amendment. That's who."

Posted by: cleek on June 15, 2006 at 5:30 PM | PERMALINK

good one cleek

Posted by: Ugh on June 15, 2006 at 5:32 PM | PERMALINK

At what point do the frogs notice the temperature of the water?

Posted by: craigie on June 15, 2006 at 5:33 PM | PERMALINK

But when conservative rulings require that originalism be tossed overboard, they do so without apology. Some doctrine, eh?

Smells like states' rights.

Posted by: cyntax on June 15, 2006 at 5:34 PM | PERMALINK

One can only hope that the members of this Supreme Court someday have to suffer the consequences of their beliefs.

Posted by: Hostile on June 15, 2006 at 5:36 PM | PERMALINK

Any judge who can't rationalize deciding the way s/he wants to decide is not worth the paper his/her diploma from law school is printed on.

Just that some are more honest about it than originalists are.

Posted by: Cal Gal on June 15, 2006 at 5:38 PM | PERMALINK

Some doctrine, eh?

worked for hitler.

Posted by: mestizo on June 15, 2006 at 5:39 PM | PERMALINK

All judicial doctrine is ex post fact rationalizations of pre-decided positions. That's why you have "philosophies" that tend to line up nicely with the two political parties' positions.

Posted by: Doug T on June 15, 2006 at 5:39 PM | PERMALINK

More substantively than discussion of the seriousness of Scalia's originalism, the idea that "public interest law firms" or "citizens review" or, worse yet, "internal police discipline" that is a direct result of the enforcement of the exclusionary rule can justify weakening the exclusionary rule is ludicrous. "Public interest law firms" can't do anything to correct the problem when no effective remedy is available, "citizen review", if it does anything at al, extends protection based on public popularity, exactly the opposite of the intent of the Fourth Amendment and other procedural safeguards intended to protect all equally, and "internal police discipline" is a consequence of the fact that not following the prescribed procedure has consequences that the police would like to avoid; removing those consequences undermines the discipline.

Posted by: cmdicely on June 15, 2006 at 5:40 PM | PERMALINK

Time to rig a shotgun to the door, set to go off if someone blows in unannounced.

Posted by: Praedor Atrebates on June 15, 2006 at 5:40 PM | PERMALINK

American Tbozo?

This is your Mama.
I can't seem to get in touch with you any other way.

Did you feed your pet sea monkeys today?

Also, it is that time again.
Please leave your dirty sheets at the top of the basement steps.

One more thing.
Al called.
He wants to know where you got your G. W. Bush Poster.

I was aghast.
Son... you did get rid of that naked poster of our president didn't you?

Please tell me that you did.
I am worried.
The goverment is bugging everything these days.
What would they think?


Posted by: Mother on June 15, 2006 at 5:40 PM | PERMALINK

Scalia's point is not that knock-and-announce violations are constitutional because of the rise of civil-rights lawyering. The point is that the rise of civil-rights lawyering has provided a remedy to the constitutional violation—i.e., Section 1983 or Bivens lawsuits—that are more appropriate than the exclusionary rule for the actual nature of the knock-and-announce reasonableness requirement. I don't know that I buy that fully, but I don't really see it as an interpretive question of the nature of the right asserted, to be resolved by originalism or any other approach.

Posted by: dj moonbat on June 15, 2006 at 5:43 PM | PERMALINK

What's the problem? If you're not doing anything wrong, or if your name is Rush Limburger, you have nothing to worry about.

Posted by: craigie on June 15, 2006 at 5:46 PM | PERMALINK

Where are the libertarians on this one?

Overturning 90 years of precedent. Talk about judicial activism.

Posted by: Brian MD on June 15, 2006 at 5:46 PM | PERMALINK

dj moonbat,

You make a good point that this case isn't really a good example of the utter emptiness of Scalia's "originalism".

Posted by: cmdicely on June 15, 2006 at 5:47 PM | PERMALINK

Overturning 90 years of precedent. Talk about judicial activism.

The exclusionary rule has only been incorporated against the states since the 1960s.

Posted by: dj moonbat on June 15, 2006 at 5:48 PM | PERMALINK

Everyone can thank Sam Alito for putting the exclusionary rule on life support. This case was deadlocked 4-4 so they reargued it after Alito came on board. Only Anthony Kennedy stands as our guardian of civil liberties now. And if THAT doesn't send shivers down your spine, you must be on life support yourself.

Posted by: Glenn on June 15, 2006 at 5:49 PM | PERMALINK

P_O_N_D S_C_U_M.

Pond Scum with life-time appointments.

Posted by: beb on June 15, 2006 at 5:50 PM | PERMALINK

You make a good point that this case isn't really a good example of the utter emptiness of Scalia's "originalism".

Thanks. There are plenty of examples to go around, though. I saw a Randy Barnett lecture a couple months back where he derided Scalia for not having the guts to stick to true originalism. Great stuff.

Posted by: dj moonbat on June 15, 2006 at 5:52 PM | PERMALINK

the growth of public-interest law firms and lawyers who specialize in civil-rights grievances ... [and] the increasing professionalism of police forces, including a new emphasis on internal police discipline ... [and] the increasing use of various forms of citizen review can enhance police accountability all mean that the fourth amendment can be reinterpreted.

That is just tremendous legal reasoning Mr. Justice!

Let me see if I get this straight, it's okay to lower the standard on Americans' Fourth Amendment Rights because there are more lawyers willing to litigate when violations occur?

That's like saying we need to lower the legal standard for intentional homicide, perhaps do away with the specific intent standard, because there are more D.A.'s willing to push murder cases...

My brain hurts now, may I be excused?

mojo sends

Posted by: vanmojo on June 15, 2006 at 5:52 PM | PERMALINK
Only Anthony Kennedy stands as our guardian of civil liberties now.

Didn't Kennedy concur in the judgement here, with an opinion about how it wasn't weakening the exclusionary rule? Seems like someone more interested in sugar coating the erosion of liberty than preventing it.

Posted by: cmdicely on June 15, 2006 at 5:55 PM | PERMALINK

The existence of the ACLU means police can be more aggressive in seizing evidence? I'm confused. Maybe the existence of EFF and EPIC will make it OK to use information from warantless wiretaps in court.

I guess a battering ram is just a big door knocking device and NSA's Narus STA 6400 is just a big set of ears. Reasonable expectation of privacy? Anyone who reads the news knows that is limited to thoughts you think without moving your lips.

Posted by: rewolfrats on June 15, 2006 at 5:55 PM | PERMALINK

OK, let me get this straight.

* The officers substantially complied, in a pretty reasonable way, with the knock-and-announce rule (they announced, shouting "police, search warrant!" but didn't knock *for fear of being shot*). The whole point of k-and-r is to let the suspect open the door. It's an ancient formality. They shouted, which put him on notice. Substantial. Compliance.

* The warrant gave the officers the right to search for the evidence.

* Excluding the evidence would essentially let a criminal go free.

This all makes the Supreme Court "like Hitler"?

I'm not sure I completely agree with the majority (and Scalia's reasoning about remedies is ridiculous). But this isn't fascism. It's an otherwise legal search where an officer decided not to *tap on a door* because he was concerned about his own safety.

Moreover, the Kennedy opinion effectively deters the slippery-slope argument here.

Look, I know some kooks want to undo the exclusionary rule entirely. I suppose a couple of them are on the Supreme Court. This opinion, however, doesn't do that.

It's a shame that Godwin's Law applies a bit too forcefully to legal discussions.

Posted by: Jim D on June 15, 2006 at 5:56 PM | PERMALINK

dj moonbat:

See Weeks vs. United States, 1914. From Breyer's dissent:

This case, decided 28 years after Boyd, originated the exclusionary rule. The Court held that the Federal Government could not retain evidence seized unconstitutionally and use that evidence in a federal criminal trial. The Court pointed out that [i]f letters and private documents could be unlawfully seized from ahome and used in evidence against a citizen accused of anoffense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures isof no value, and . . . might as well be stricken from the Constitution. 232 U. S., at 393

Posted by: Brian MD on June 15, 2006 at 5:57 PM | PERMALINK

Didn't Kennedy concur in the judgement here, with an opinion about how it wasn't weakening the exclusionary rule? Seems like someone more interested in sugar coating the erosion of liberty than preventing it.

My point exactly, cmdicely. All we have to go on at this point is that Kennedy says this is not the beginning of a rollback. Not much to hang your hat on.

Posted by: Glenn on June 15, 2006 at 5:59 PM | PERMALINK

See Weeks vs. United States, 1914.

Sure, that case created the exclusionary rule. But it wasn't until Mapp v. Ohio in 1961, that the Court said that state governments were bound by the rule.

Posted by: dj moonbat on June 15, 2006 at 6:01 PM | PERMALINK

BrianMD: Exclusionary rule was indeed established by Weeks in 1914, but wasn't deemed a substantive part of the 4th Amendment that was incorporated and applied against the states until Mapp v Ohio, in the 60s (I think).

Posted by: Glenn on June 15, 2006 at 6:02 PM | PERMALINK

Jim D: The officers substantially complied, in a pretty reasonable way, with the knock-and-announce rule (they announced, shouting "police, search warrant!" but didn't knock *for fear of being shot*)...

No, the officers did not comply with the requirements. Read Scalia's opinion--nobody for the state even made that argument. It was always conceded that what the cops had done was a constitutional violation; the only issue before the Court was whether the exclusionary rule was a necessary remedy for the type of violation at hand.

Posted by: dj moonbat on June 15, 2006 at 6:04 PM | PERMALINK

The 4th Amendment says nothing about the Exclusionary Rule. That rule was created by the Supreme Court as a way to try to prevent unreasonable searches and seizures.

The Exclusionary Rule was always unfortunate, in my opinion. The innocent who are unreasonably searched get no recompence. The guilty may go free, despite not deserving freedom. The policeman who made the unreasonable search isn't penalized. The public, who did nothing wrong, is penalized by having more criminals at large. Who knows how many thousands of innocent people have been harmed by criminals who were acquitted by use of the exclusionary rule.

More generally, the Exclusionary Rule helped make criminal trials more like contests between lawyers than searches for justice.

Maybe the Exclusionary Rule has been necessary to prevent unreasonable searches. But, if the Supremes can substitute a better mechanism to keep the police in line, that would be a terrific improvement in justice.

Posted by: ex-liberal on June 15, 2006 at 6:05 PM | PERMALINK

The liberals should abandon the current frame of reference of the critique of the conservatives that assumes that they believe what the say.

To accuse the conservatives of hypocrisy on sacred cows like the Bill of Rights is to give them too much credit. They may talk the talk of civil rights and freedom and liberties, but at the core of their ideology is authoritarianism/fascism pure and simple.

Posted by: nut on June 15, 2006 at 6:06 PM | PERMALINK

Simply, the principle that is being established by this decision runs counter to the principle established in 1914. There is no parsing of State vs. Federal handling of evidence in this case.

Posted by: Brian MD on June 15, 2006 at 6:07 PM | PERMALINK
The officers substantially complied, in a pretty reasonable way, with the knock-and-announce rule (they announced, shouting "police, search warrant!" but didn't knock *for fear of being shot*).

This is not substantial compliance; the only way knocking would produce fear of being shot that shoting "Police, Search Warrant!" wouldn't is if the shouting wouldn't be heard and thus would fail to actually provide notice. Since the purpose of the knock-and-announce requirement is to provide notice, the police by their own statement were in nothing like substantial compliance, since they were deliberately defying the knock-and-announce requirement with the specific intent of frustrating the purpose of the requirement.

Posted by: cmdicely on June 15, 2006 at 6:07 PM | PERMALINK

So Scalia's remedy is the ability to cry on someone's shoulder at the ACLU? Still confused here.

Posted by: rewolfrats on June 15, 2006 at 6:10 PM | PERMALINK
Sure, that case created the exclusionary rule. But it wasn't until Mapp v. Ohio in 1961, that the Court said that state governments were bound by the rule.

In re: Mapp v. Ohio, its an interesting bit of trivia that the (false) tip regarding bombing evidence that led to the search that produced the pornography that was the basis for the prosecution which resulted in that decision was provided by none other than Don King.

Posted by: cmdicely on June 15, 2006 at 6:13 PM | PERMALINK

The Exclusionary Rule was always unfortunate, in my opinion. The innocent who are unreasonably searched get no recompence. The guilty may go free, despite not deserving freedom. The policeman who made the unreasonable search isn't penalized. The public, who did nothing wrong, is penalized by having more criminals at large. Who knows how many thousands of innocent people have been harmed by criminals who were acquitted by use of the exclusionary rule

But then your argument is really with the 4th Amendment, not the exclusionary rule, isn't it? Because lots of crimes are going undetected, and criminals are going free, because the police are obeying the 4th Amendment in the first place. The exclusionary rule only comes up when you actually have the evidence procured by the violation, so it naturally highlights the fact that the 4th Amendment keeps the police from uncovering evidence that they otherwise could. But all the exclusionary rule does is put the police in the same position they would be in if they had obeyed the 4th Amendment in the first place.

The 4th Amendment is a decision by our society that letting some crimes go undetected and unpunished is a price we're willing to pay for our privacy. If you don't like the exclusionary rule, your beef is with that principle, not the Supreme Court.

Posted by: Glenn on June 15, 2006 at 6:13 PM | PERMALINK

So Scalia's remedy is the ability to cry on someone's shoulder at the ACLU? Still confused here.

The remedy is the statutory right to sue for damages under 42 USC 1983, which authorizes suits against state officials (actually, people acting "under color" of state law) for violations of constitutional or other federal law. Because knock-and-announce requirements are clearly established law, state officers do not enjoy immunity from suit for such violations.

Posted by: dj moonbat on June 15, 2006 at 6:14 PM | PERMALINK

It's worth pointing out, though, that Mr. Hudson, were he to file a Section 1983 lawsuit, would lose. Only people in the wrong house ever win those types of suits.

Posted by: dj moonbat on June 15, 2006 at 6:16 PM | PERMALINK

Thanks for the addendum dj moonbat. Sort of what I was thinking.

Posted by: rewolfrats on June 15, 2006 at 6:20 PM | PERMALINK

It seems it would be best to collect the evidence while the suspect was out of the home. If you don't find anything just put it all back like you found it.

Posted by: rewolfrats on June 15, 2006 at 6:24 PM | PERMALINK
The remedy is the statutory right to sue for damages under 42 USC 1983, which authorizes suits against state officials (actually, people acting "under color" of state law) for violations of constitutional or other federal law.

Since no economic damages were suffered that would not have been suffered had his rights not been violated and the knock-and-announce rule followed, and since Section 1983 has no provision for statutory damages, and since there is no conceivable equitable relief that would be of any utility, I don't really see how there is any remedy available.

Now, certainly, there in theory exists a criminal remedy under 18 USC 241 or 18 USC 242 which isn't dependent on actual damages, but good luck finding a federal prosecutor to prosecute state law enforcement officers for that in a case like this.

Today's ruling encourages state law enforcement officials to disregard knock-and-announce requirements as long as they have a warrant and believe that they will find evidence that will secure a conviction; thereby eviscerating the requirement. There is no real, substantial, credible remedy once the logic of this ruling is accepted.

Posted by: cmdicely on June 15, 2006 at 6:25 PM | PERMALINK

(Actually, as far as criminal remedies, probably just 18 USC 242 -- 241 isn't really applicable in this case.)

Posted by: cmdicely on June 15, 2006 at 6:28 PM | PERMALINK

It seems it would be best to collect the evidence while the suspect was out of the home. If you don't find anything just put it all back like you found it.

Yes, and under "inevitable discovery" and "independent source" exceptions to the exclusionary rule, police have been known to do exactly that and get away with it.

Posted by: dj moonbat on June 15, 2006 at 6:31 PM | PERMALINK

that the Supreme Court has decided to eviscerate the Bill of Rights a bit further today.

And you said that conservatism is dead.

Posted by: ckelly on June 15, 2006 at 6:49 PM | PERMALINK

Judicial activism anyone? Anyone? Hello?

Posted by: ckelly on June 15, 2006 at 6:51 PM | PERMALINK

craigie: At what point do the frogs notice the temperature of the water?

Frogs (and other cold-blooded creatures) are acutely aware of the temperature of the water they are in.

"The `critical thermal maxima' of many species of frogs have been determined by several investigators. In this procedure, the water in which a frog is submerged is heated gradually at about 2 degrees Fahrenheit per minute. As the temperature of the water is gradually increased, the frog will eventually become more and more active in attempts to escape the heated water. If the container size and opening allow the frog to jump out, it will do so."

http://www.uga.edu/srel/ecoview11-18-02.htm

Posted by: anandine on June 15, 2006 at 6:53 PM | PERMALINK

If the remedy is to sue in civil court, doesn't this pretty much mean that the Constitution's protections don't apply to poor people?

Posted by: Carl Nyberg on June 15, 2006 at 7:04 PM | PERMALINK

If the remedy is to sue in civil court, doesn't this pretty much mean that the Constitution's protections don't apply to poor people?

See, you think of that as a bug. To a conservative judge/justice, that's a feature.

Posted by: dj moonbat on June 15, 2006 at 7:08 PM | PERMALINK

Trying to understand the issues around this... pls point me to an appropriate reference.

What is the intended purpose of the "knock"?
Is it just the formality mentioned in an earlier comment, a politeness of sorts?

Is the length of time between the knock and breaking down the door to be about 20 seconds?

If the police hear sounds like someone is frantically flushing away, does that provide for a more immediate breakdown of the door?

Am I missing some other obvious question here???

Posted by: pencarrow on June 15, 2006 at 7:11 PM | PERMALINK

So now police do not need to knock -- so they can come flying through your door without warning. What happens when they get shot as intruders? What happens when they shoot innocent people intruded on by mistake who resist thugs coming through their door?

Shoot first and ask questions later is now the SC standard.

Posted by: Jan on June 15, 2006 at 7:13 PM | PERMALINK

Pond Scum Fuckers with life-time appointments.

Posted by: Hostile on June 15, 2006 at 7:17 PM | PERMALINK

Glenn - you have a reasonable argument. Your point reminds me of Scalia's. He said the evidence should be allowed even though police erred, provided that it would have been gathered had the police not erred.

Posted by: ex-liberal on June 15, 2006 at 7:35 PM | PERMALINK

What will soon follow is what's scary. See, this decision lays down a broad principle (it's not just about knock-and-announce at all):

It's no longer sufficient that a search be unreasonable to merit the exclusionary rule; now, the manner in which it was unreasonable must bear some direct relation to the procurement of the evidence. Otherwise, this Court will assume the sufficiency of other remedies to deter the conduct.

So, say the cops find a baggie on your coffee table, and rip your whole house apart, looking for something else. Unreasonable search? You betcha. But under today's logic, the baggie still gets in. Or, they beat you and your family while they're searching. Unreasonable? Sure. But unrelated to what they find, so it gets in.

The cops have been given a license for rough, rough searches today.

Posted by: dj moonbat on June 15, 2006 at 7:42 PM | PERMALINK

Kevin, pedantically, I do not think that you can eviscerate "a bit further".

On the Supreme Court, of course appointing justices of similar interpretative mind -- and Alito is way out there, look at his record -- is bringing into effect a reinterpretative court, i.e. activist. This has been the objective all along no matter what intentions have been expressed. Individual and societal protections and labor law are the obvious targets.

I can't say I feel any direct sympathy for the criminal involved, but the ease with which one hundred years of precedents can be pushed to one side is appalling, not to say scary.

What a nice place we live in.

Posted by: notthere on June 15, 2006 at 7:48 PM | PERMALINK

Knock knock
"Who's..." *crash*
"It's the ghost of the Motherfucking Fourth Amendment. That's who."

Posted by: cleek on June 15, 2006 at 5:30 PM | PERMALINK

I forgot to say . . . Perfect!

Posted by: notthere on June 15, 2006 at 7:52 PM | PERMALINK

but the ease with which one hundred years of precedents can be pushed to one side is appalling, not to say scary.
Posted by: notthere on June 15, 2006 at 7:48 PM | PERMALINK

Yes.

That means that there is hope that one day, Corporate Personhood may be overturned at last. That will be the greatest day in American History.

Corporations will not die. The economy will not crash. The only thing that will change is: people will not be able to hide behind a corporate charter when Responsibility for Criminal Actions comes calling.

Posted by: Osama_Been_Forgotten on June 15, 2006 at 7:56 PM | PERMALINK

even if police violate the "knock and announce" rule for serving search warrants, they can still use the evidence they seize in court

Guilty is guilty. What is the moral logic of exclusion of evidence when the guilt remains?

If you want to discourage future violations of search procedures, surely there is a better way than the injustice of pretending the criminal is not really guilty after all.

Posted by: x on June 15, 2006 at 8:04 PM | PERMALINK

If you want to discourage future violations of search procedures, surely there is a better way than the injustice of pretending the criminal is not really guilty after all.

Yes. The way to do it would be to rip the guts out of immunity doctrine, and certain portions of the standing requirement, so that the innocentand the guilty-but-still-unreasonably-abusedwould have a meaningful remedy for constitutional violations. But they won't do that either.

Posted by: dj moonbat on June 15, 2006 at 8:07 PM | PERMALINK

If anybody ever says Scalia, Thomas, Roberts or Alito are conservatives again, just point to this decision. The decision is judical activism in the purest sense. A century of law ripped to pieces by activist judges who have lost touch with America. It eviserates the 4th Amendment. Remember that, the 4th Amendment is far more important than the 2nd Amendment.

Posted by: Ron Byers on June 15, 2006 at 8:11 PM | PERMALINK

But all the exclusionary rule does is put the police in the same position they would be in if they had obeyed the 4th Amendment in the first place.

Not in this case, because the police had a valid warrant, as Scalia made clear in his opinion. They WERE obeying the 4th Amendment.

Nice discussion of the Scalia side of his originalism here, by the way.

Posted by: scotus on June 15, 2006 at 8:16 PM | PERMALINK

This is why winning the presidency is so damn important, why anyone who voted for Nadar was a fool, and why anyone who doesnt vote for Hillary if she is the nominee is handing the right back to the Repubs to appoint more of the same. I cant believe this wasnt a primary issue to people in the last election. If you dont win you are powerless. Bill Clinton understood that. I dont know that the new-McGovern wing of the Dem party understands.

Posted by: Jammer on June 15, 2006 at 8:20 PM | PERMALINK

Guilty is guilty. What is the moral logic of exclusion of evidence when the guilt remains?
....
Posted by: x on June 15, 2006 at 8:04 PM | PERMALINK

I'd say the 4th amendment is pretty important and it's right to err on side of upholding it. Not this court.

You must be young and/or not live in an area where the police habitually trample the rights of people. And not just by walking in the door uninvited.

Posted by: notthere on June 15, 2006 at 8:22 PM | PERMALINK

cleek: Knock knock
"Who's..." *crash*
"It's the ghost of the Motherfucking Fourth Amendment. That's who."

Laugh of the week.

Posted by: shortstop on June 15, 2006 at 8:47 PM | PERMALINK

Fat White Guy

The 4th Amendment is more that the requirement that the police obtain a warrent. It has to do with the sanctity of the hearth and home. Since 1914 for the federal police agencies and since 1961 for the state agencies, the exclusionary rule insured that the police respected your home and your family.

By the way are you aware of the Castle laws the NRA have been promoting in various states. If a stranger breaks into your house in a state with a castle law, you can shoot him down without warning. Well, lets see, if the police don't have to tell you they are police I can see shootouts developing between two groups of completely innocent people. You and the unannounced policemen who have invaded your home.

Posted by: Ron Byers on June 15, 2006 at 8:52 PM | PERMALINK

What are liberals complaining about? It was John at AmericaBlog and Markos at DailyKos who were against filibustering Bush's nominees to the court. And doesn't everyone just love those liberal bloggers?

So Alito and Roberts are destroying the Constitution. Who cares? John and Markos say that it isn't in the interest of the Democratic Party to fight these guys in the Senate.

I'm with DailyKos and AmericaBlog! Go Alito. Fuck the Constitution! I don't know how this will benefit us when we are all in concentration camps, but I'm sure as hell gonna follow Markos and John, after all, they are leading the great vanguard to the promised land.

(The fucking losers. With blogger like these two fuckheads who the hell needs Bush.)

Posted by: Dicksknee on June 15, 2006 at 8:52 PM | PERMALINK

I love the "eviscerate...a bit further" construction. Is that like being a little bit more annihilated? But "eviscerate" is so much more dramatic than "erode" or "diminish."

Posted by: GOP on June 15, 2006 at 9:10 PM | PERMALINK

If anybody ever says Scalia, Thomas, Roberts or Alito are conservatives again, just point to this decision. The decision is judical activism in the purest sense. A century of law ripped to pieces by activist judges who have lost touch with America.

They absolutely are conservate. Part of bring conservative is rolling back the actions of previous activist courts to return the law to an originalist state.

Posted by: rdw on June 15, 2006 at 9:18 PM | PERMALINK

Yes. The way to do it would be to rip the guts out of immunity doctrine, and certain portions of the standing requirement, so that the innocentand the guilty-but-still-unreasonably-abusedwould have a meaningful remedy for constitutional violations. But they won't do that either.

DJ - a good idea, but it would be important to make it clear that the civil penalties apply exactly equally whether or not the victim was acutally innocent. Otherwise, if there are substantial personal penalties for police who illegally search someone who turns out to be innocent, it creates an incentive to make sure no one turns out to be innocent - so some small subset of police will plant evidence if they find they've made a mistake, which ends up hurting the innocent even further.

Unfortunately, making the penalties the same in practice for both innocent/guilty victims would probably require taking it out of the hands of juries, which is neither likely nor constitutional.

Despite all its problems, there are some good reasons for the exclusionary rule as an enforcement measure.

Posted by: eeyn524 on June 15, 2006 at 9:28 PM | PERMALINK

all mean that the fourth amendment can be reinterpreted.

That's Healy, not Scalia.

Posted by: republicrat on June 15, 2006 at 9:58 PM | PERMALINK

They absolutely are conservate. Part of bring conservative is rolling back the actions of previous activist courts to return the law to an originalist state.
Posted by: rdw on June 15, 2006 at 9:18 PM

Hey, you are right, Scalia wants to take us right back to the original state of the law in 1775.

Have you ever studied originalism? It isnt a judical philosophy. It is an excuse.

Posted by: Ron Byers on June 15, 2006 at 10:07 PM | PERMALINK

"What the knock-and-announce rule has never protected...is one's interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable,"

Antonin Scalia, writing for the majority.

READ THE WHOLE THING.

Posted by: republicrat on June 15, 2006 at 10:07 PM | PERMALINK

While I'm a big critic of Scalia and think today's decision is a dangerous step towards getting rid of the exclusionary rule, I don't agree with Kevin that this is an example of Scalia manipulating Originalism. To me the existence of the exclusionary rule gives meaning to the 4th Amendment but it isn't hard to find scholars who argue that the rule wasn't part of the original meaning of the 4th. Indeed the Court didn't get around to acknowledging the existence of the rule until 1914 and didn't apply it to the States until 1961.

Posted by: Camus on June 15, 2006 at 10:15 PM | PERMALINK

the dissent is here:http://www.law.cornell.edu/supct/pdf/04-1360P.ZD

note the many qualifications, like "may" and "among the factors to be considered in judging" etc.

Also note the language of the majority opinion: violation of strict "knock and announce" procedure, pursuant to a valid search warrant, does not "necessarily" lead to suppression of the evidence.

Posted by: republicrat on June 15, 2006 at 10:16 PM | PERMALINK

rights and expectations linked to ancient
principles in our constitutional order. See Wilson v. Ar-kansas, 514 U. S. 927, 934 (1995). The Court’s decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law’s concern. Second, the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today’s decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to
justify suppression.

Justice Anthony Kennedy, concurring with the judgment, but not with all of the majority opinion.

Posted by: republicrat on June 15, 2006 at 10:22 PM | PERMALINK

This is not substantial compliance; the only way knocking would produce fear of being shot that shoting "Police, Search Warrant!" wouldn't is if the shouting wouldn't be heard and thus would fail to actually provide notice. Since the purpose of the knock-and-announce requirement is to provide notice, the police by their own statement were in nothing like substantial compliance, since they were deliberately defying the knock-and-announce requirement with the specific intent of frustrating the purpose of the requirement.


First of all, knocking does indeed restrict your location more than shouting does, unless you have awfully long arms. Shouting to reduce the chances of being shot at isn't absurd, but is reasonable.

Second, there might be some dispute about "substantial" compliance. clearly, loud shouting is more annunciatory than soft knocking, but your wording would have it the other way around. Would a defendant who said "I didn't hear the knock" be entitled to have the seized evidence suppressed? Is there a requirement that the knocking/shouting exceed an objectively measured decibel level? I don't think so.

Third, how do you know that the officers intentionally shouted too quietly to be heard? That isn't what anyone said.


More generally, philosophical principles always run aground on actual cases, for a variety of reasons. Most commonly, a bunch of principles will conflict.

Posted by: republicrat on June 15, 2006 at 10:35 PM | PERMALINK

If anybody ever says Scalia, Thomas, Roberts or Alito are conservatives again, just point to this decision. The decision is judical activism in the purest sense. A century of law ripped to pieces by activist judges who have lost touch with America. It eviserates the 4th Amendment. Remember that, the 4th Amendment is far more important than the 2nd Amendment.

you obviously didn't read the opinions.

Posted by: republicrat on June 15, 2006 at 10:38 PM | PERMALINK

Suppression is another matter. Under our precedentsthe causal link between a violation of the knock-and-
announce requirement and a later search is too attenuated to allow suppression. Cf. United States v. Ramirez, 523 U. S. 65, 72, n. 3 (1998) (application of the exclusionary rule depends on the existence of a “sufficient causal rela-tionship” between the unlawful conduct and the discovery of evidence). When, for example, a violation results from want of a 20-second pause but an ensuing, lawful searchlasting five hours discloses evidence of criminality, the failure to wait at the door cannot properly be described ashaving caused the discovery of evidence.

Anthony Kennedy

Posted by: republicrat on June 15, 2006 at 10:42 PM | PERMALINK

The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one. See Wilson v. Arkansas, 514 U. S. 927, 931–932 (1995). Since 1917, when Congress passed the Espionage Act, this traditional
protection has been part of federal statutory law, see 40 Stat. 229, and is currently codified at 18 U. S. C. 3109. We applied that statute in Miller v. United States, 357 U. S. 301 (1958), and again in Sabbath v. United States, 391 U. S. 585
(1968). Finally, in Wilson, we were asked whether the rule was also a command of the Fourth Amendment. Tracing its origins in our English legal heritage, 514 U. S., at 931–-936, we concluded that it was.

We recognized that the new constitutional rule we had announced is not easily applied. Wilson and cases following it have noted the many situations in which it is not necessary to knock and announce. It is not necessary when “circumstances presen[t] a threat of physical violence,” or if there is “reason to believe that evidence would
likely be destroyed if advance notice were given,” id., at 936, or if knocking and announcing would be “futile, Richards v. Wisconsin, 520 U. S. 385, 394 (1997). We require only that police “have a reasonable suspicion under the particular circumstances” that one of these grounds for
failing to knock and announce exists, and we have acknowledged that “[t]his showing is not high.” Ibid.

Antonin Scalia, Hudson v. Michigan

That is in one of the sections with which Kennedy concurred.

RTWT

Posted by: republicrat on June 15, 2006 at 10:50 PM | PERMALINK

republicrat

You better hope Kennedy lives until a Democrat is elected President. Otherwise you can kiss your individual constitutional rights goodbye.

Once upon a time in America the individual and his rights were important. They were balanced against the State's constant desire to stick its nose in the individual's home. Now the State is absolutely ascendant. Individuals are spied upon. The police can knock down their doors. Warrants are handed down by star chamber courts. People are arrested and held for years without trial. There is an absurd argument afoot that since the government is trampling on the rights of guilty felons (terrorists?) anyway, who cares. Guys like you fail to recognize that argument pisses all over the notion that we are all innocent until proven guilty in a court of law. By the way the presumption of innocence is perhaps our most important right.

As a conservative these developments should be your worst nightmare. Without your constituional rights there is absolutely nothing protecting you from the full power of the state except the good will of the guy swinging the nightstick. Apparently since you think the conservatives are in power, you aren't worried. Instead you defend the government without thought or care.

Clue to you republicat. Conservatives aren't in power. I don't know what you would call Scalia and his minions, nor do I know for sure what you would call Bush and his gang, but it is pretty darn clear Berry Goldwater, who was a conservative, wouldn't acknowledge them as believers in the same vision.

Maybe you ought to go back to law school and take constitutional law. Better yet, maybe you ought to go back to high school and take American government.

What has happened to America? Where the hell did we go wrong? How have we fallen into the hands of people who hate our freedoms?

Posted by: Ron Byers on June 15, 2006 at 11:00 PM | PERMALINK
First of all, knocking does indeed restrict your location more than shouting does, unless you have awfully long arms.

Either knocking or shouting announces your position pretty clearly to anyone who hears it, and shouting an announcement that you are entering with a warrant makes you just as likely to be shot when you follow through and enter as knocking does.

Second, there might be some dispute about "substantial" compliance. clearly, loud shouting is more annunciatory than soft knocking, but your wording would have it the other way around.

Er, no. Nothing in my wording even remotely suggests what you are saying it does. I'm saying its not substantial compliance because their overtly stated reason requires, to be effective, interference with central purpose of the requirement, and therefore the noncompliance is material, and there is not "substantial compliance".

Nothing about the relative priority of knocking and shouting is implied by that; omitting either part with the intent of avoiding notice, either as an end in itself or an instrumental means of (for example) self-protection is a substantial violation; if there is reason to believe that a no-knock warrant is necessary and justified, well, you present that to the judge and get a no-knock warrant.

Third, how do you know that the officers intentionally shouted too quietly to be heard?

There stated intention was to avoid a response; avoiding knocking is only effective in doing that if it avoids notice. Either there justification is entirely empty, or it was designed to avoid notice; in either case, there was not substantial compliance.

Finally, though, I don't even know why we're discussing this; the state didn't even argue there was "substantial compliance", and "substantial compliance" isn't generally relevant to government action prohibited by the Fourth Amendment (good faith belief that an action is authorized by a warrant may be, but that's inapplicable here, as the police did not have a good faith belief that they had no-knock warrant -- they knew what the warrant required, and they knowingly, deliberately failed to do what it required. And the Supreme Court essentially provided them a license to deliberately do what is forbidden by the Constitution without fear of consequence.)

Would a defendant who said "I didn't hear the knock" be entitled to have the seized evidence suppressed? Is there a requirement that the knocking/shouting exceed an objectively measured decibel level? I don't think so.

Posted by: cmdicely on June 15, 2006 at 11:12 PM | PERMALINK
By the way are you aware of the Castle laws the NRA have been promoting in various states. If a stranger breaks into your house in a state with a castle law, you can shoot him down without warning. Well, lets see, if the police don't have to tell you they are police I can see shootouts developing between two groups of completely innocent people. You and the unannounced policemen who have invaded your home.

Note, this decision doesn't make the police action legal, it just removes the only substantial judicial remedy. So only the resident (presuming, of course, they aren't guilty of something else) is "completely innocent"; in fact, though no one is likely to ever prosecute them, they are committing a federal crime.

Posted by: cmdicely on June 15, 2006 at 11:16 PM | PERMALINK
What is the moral logic of exclusion of evidence when the guilt remains?

The moral logic is that, as there is usually not an injury for which a remedy in a civil action at law or equity is effective or appropriate, and as the executive power is usually not turned on executive agents doing excess in the name of the executive will rendering criminal remedy against the wrongdoers, that exclusion is the only remedy which creates a substantial disincentive for the police and thereby gives substance to the Fourth Amendment's prohibitions, and that protecting the whole nation from the danger of unchecked government is worth the cost of letting the occasional criminal go free.

The moral logic is that sacrificing essential liberty for momentary security leaves you with neither liberty nor security in the end.

Posted by: cmdicely on June 15, 2006 at 11:22 PM | PERMALINK

Knock knock.

Who's there?

American tbozo's mama that's who...

What u want momma?

Your dirty sheets son.
Leave them at the top of the basement steps.

Okay. But I ain't giving up my Bush poster momma.

Son... I will trade you that nekid Bush poster for a poster of the sexiest man alive.

Who's that momma?

Rumsfeld.

Oh momma, you are a temptress.

And... I will throw in a picture of Cheney.

Really momma?

Yes son.

Oh momma, I heart you.

Son?

Yes Momma.

It is a picture of Lon Cheney.

Oh momma that's mean.

Son...

Yes momma?

He is shown choking someone in full color.

Oh momma... I heart you again. Is he choking an A-rab?

Posted by: Mother hawk & American Hawk on June 15, 2006 at 11:29 PM | PERMALINK

There stated intention was to avoid a response;

not so. It was to reduce the likelihood of a particular response, an accurate gun shot.

If the debate is about whether knocking or shouting is sufficiently annunciatory, or whether knocking or shouting is more revealing of where one is standing, then it isn't much of a constitutional issue. Scalia's opinion quotes prior SC opinions where strict announce and knock is not required, as when evidence may be destroyed.

no. Nothing in my wording even remotely suggests what you are saying it does.

What you wrote was that shouting was insufficient but knocking was sufficient. You omitted the issue of loudness. But if the goal is to be annunciatory, and to provide time for the subject to comply (and not to evade), then clearly a loud shout is better than a quiet knock.

What did you think of Kennedy's opinion, and the part of Scalia's opinion that he agreed with?

Incidentally, you wrote a bunch of posts the other day that I agreed with, and I regret that I did not say that I agreed. You are pretty sharp. Today, it seems that you didn't read the opinions.

Ron Byers: You better hope Kennedy lives until a Democrat is elected President. Wasn't Kennedy nominated by a Republican?

Posted by: republicrat on June 15, 2006 at 11:52 PM | PERMALINK

What's critical is that people recognize that the Roberts Court's conservatives are comfortable ignoring the maxim, first laid down in Marbury, that for every right there must be a remedy.

"Yes; the cops violated Hudson's rights," they're saying. "Big F***ing Deal."

Posted by: dj moonbat on June 15, 2006 at 11:56 PM | PERMALINK

There is little evidence that the exclusionary rule actually does deter illegal searches and seizures. The rule encourages perjury and corruption by the police, and it consumes substantial resources in an overburdened judicial system. Alternative, and probably more effective, methods of deterring police misconduct are possible. Also, the exclusionary rule has already been substantially diluted with various exceptions and qualifications.

And the victims of violent criminals who are clearly guilty but who are set free because of the exclusionary rule might disagree somewhat with cmdicely's contention that putting violent criminals behind bars for long periods of time provides only "momentary" security.

Posted by: GOP on June 15, 2006 at 11:59 PM | PERMALINK

And the victims of violent criminals who are clearly guilty but who are set free...

This happens very, very rarely. And got less common again today.

Posted by: dj moonbat on June 16, 2006 at 12:03 AM | PERMALINK

dj moonbat: What's critical is that people recognize that the Roberts Court's conservatives are comfortable ignoring the maxim, first laid down in Marbury, that for every right there must be a remedy.

Not so. What they are saying is that, since the warrant was valid, the cops would have found the evidence anyway, so exclusion of the evidence is not a commnensurate remedy. Read the opinions, or even my short exerpts from them. The part of Scalia's opinion that Kennedy objected to (and other other commentators as well) was Scalia's listing of all the other remedies available.

Posted by: republicrat on June 16, 2006 at 12:05 AM | PERMALINK

This happens very, very rarely.

How do you know? The rule merely excludes certain evidence. It doesn't dictate the outcome of a trial.

Posted by: GOP on June 16, 2006 at 12:08 AM | PERMALINK

Read the opinions, or even my short exerpts from them.

I did. I just don't take Scalia's self-serving nonsense at face value.

The part of Scalia's opinion that Kennedy objected to (and other other commentators as well) was Scalia's listing of all the other remedies available.

No it wasn't. It was the (non)applicability of some precedents that Scalia chose to use to heighten his rhetoric, which Kennedy thought were inappropriate.

Posted by: dj moonbat on June 16, 2006 at 12:49 AM | PERMALINK

There was a time when the issue was NO KNOCK search warrants which essentially allowed the police to knock down the door unannounced if there was a danger that evidence (usually illegal drugs) could be compromised (flushed) if the occupants were warned that the man was at the door. It appears that this ruling makes all warrants no knockers and will no doubt lead to door crashing as SOP even if the item being searched for is a missing elephant locked inside of an appropriate cage being towed by a Hummer. Who's going to pay for all those doors destroyed when no evidence is found during the search???

Posted by: Sparky on June 16, 2006 at 12:56 AM | PERMALINK

Well, I've read through this entire thread, and there is some good solid arguing on both sides. Very strong stuff. And I conclude, after considering the information presented, that it really reduces to something simple:

If Scalia is for it, it must be bad for democracy. So I'm against it.

Posted by: craigie on June 16, 2006 at 1:33 AM | PERMALINK

Wasn't Kennedy nominated by a Republican?

republicrat

To paraphrase my old contracts instructor, SOOOOO.

Once upon a time the Republicans nominated to the court were very protective of individual rights. Earl Warren was a Republican. He was nominated by a Republican.

Posted by: Ron Byers on June 16, 2006 at 1:35 AM | PERMALINK

If Scalia is for it, it must be bad for democracy. So I'm against it.

As rules of thumb go, you could do a lot worse.

Posted by: dj moonbat on June 16, 2006 at 1:35 AM | PERMALINK

I must admit, Scalie is definitely an "original" idiot. Nothing "second-rate" about him. He's a top-of-the-line, first-rate, "original" idiot.

Posted by: The Oracle on June 16, 2006 at 1:46 AM | PERMALINK

Or, and for clarification, the "Originalists" only believe in the "original" U.S. Consitution.

Wait, you might say, you also believe in the "original" U.S. Constitution, thus making you a so-called "Originalist" like Scalia...(although I do like my mistype above calling him Scalie).

Aaaah, but this is what the "Originalists" want people to be confused about.

For, you see, the Bill of Rights (or the first ten amendments to the U.S. Constitution) were not "originally" part of the "original" U.S. Constitution.

Get it???

And this is why the Republican Party came up with their slogan calling for an "ownership society," because in the "original" U.S. Constitution, only the "owners of property" had the right to vote, and therefore, run this country.

Which, strangely, explains the corporatization of America. The corporate owners with their corporate donations have spent millions upon millions of dollars to "own" Congress, to "own" the White House, to "own" the Supreme Court...well, to "own" practically everything and everybody in America...while lavishing grossly extravagant tax cuts on themselves (and possibly their heirs) while cutting programs for all the rest of us, the "owned."

Greed, corruption, evil...the new Republican Party.

Posted by: The Oracle on June 16, 2006 at 2:00 AM | PERMALINK

I think the Oracle is onto something profound.

Posted by: craigie on June 16, 2006 at 2:54 AM | PERMALINK

This ruling and last week's thought-crime convictions. Who ever would have thought that the U.S. would go out with a whimper?

Bush repackages his old war on Iraq/terror as his *NEW & IMPROVED* war on Iraq/terror, changing nothing, but lending the appearance of change with a trip to Iraq and a photo op with his cabinet at Camp David, and all that the media can talk about is "Bush's gaffe with the blind guy."

Aren't we all so casual and civilized about the loss of the compact on our watch?

Alas, I must depart. Bravo's rerunning Kathy Griffin's My Life on the D-List. Again.

Posted by: Maeven on June 16, 2006 at 4:27 AM | PERMALINK

This frog thinks the water has been much too warm for much too long now. In the locker rooms of police departments, county sherriff's garages, and in the back rooms of procesutor's offices, this decision brought about millions of enthusiastic high-fives and probably a keg party sometime next week. The police now have a few seconds more time to get the drugs before the suspects make it to the toilet or garbage disposal.

The problem with giving police greater power is that they will abuse it. The police force of today is not the same as the police force of ten or twenty years ago. There is a much greater sense of detachment from citizens and the 'us against them' mentality has been heightened to new extremes. It seems that everyone outside their ranks is criminal. This isn't because they hate non-police, but like any profession, police stick together as a clique.

Police and procesutors believe, like everyone else, that they have the hardest job in the world and they would like to make their jobs easier and safer. Who doesn't? In my job, making things safer doesn't involve people's lives or their freedoms. For law enforcement the consequences are much more serious,for both officer and citizen, and that is a serious threat.

In Orson Welle's 1958 thriller "A Touch of Evil", Charleston Heston, playing a local prosecutor investigating police corruption, confronts a detective in the department's locker room.

Detective: "But you don't understand! We need to cut some corners! Being a cop is hard work!"

Heston (Vega)" The only place where police work is easy is in a POLICE STATE!"

Great line. Great truth.

Posted by: SL Aronovitz on June 16, 2006 at 7:47 AM | PERMALINK

The 4th Amendment says nothing about the Exclusionary Rule. That rule was created by the Supreme Court as a way to try to prevent unreasonable searches and seizures.

Of course, because without a mechanism to prevent unreasonable searches and seizures, the Fourth Amendment is toothless.

Maybe the Exclusionary Rule has been necessary to prevent unreasonable searches. But, if the Supremes can substitute a better mechanism to keep the police in line, that would be a terrific improvement in justice.

And if pigs had wings...But seriously, the obvious flaw here is that the Supremes made no attempt to "substitute a better mechanism to keep the police in line," while substantially weakening the existing mechanism to keep the police in line.

Posted by: Gregory on June 16, 2006 at 7:50 AM | PERMALINK

Part of bring conservative is rolling back the actions of previous activist courts to return the law to an originalist state.

That'd be the Hobbesian State of Nature, for those of you keeping score at home.

Posted by: Gregory on June 16, 2006 at 7:56 AM | PERMALINK

If you want to discourage future violations of search procedures, surely there is a better way than the injustice of pretending the criminal is not really guilty after all.

Actually, I have long agreed with this sentiment. I have long been unhappy that due to a mistake (to be generous) by the cops should lead to objectively valid evidence of criminal activity being tossed out. MY solution is that you do not toss the evidence that was improperly acquired...you punish the cops and the Chief of Police/Police Commissioner. You punish, severely, those who made the mistake, not society as a whole (by allowing a clear criminal to skate on a technicality).

Severe monetary penalties and even jailtime for cops and Commissioners/Chiefs that see violations in evidence gathering.

I'm serious. You'd quickly see a huge drop in illegally/improperly acquired evidence.

Posted by: Praedor Atrebates on June 16, 2006 at 9:38 AM | PERMALINK

A lot of this alarm is off base. Read the opinion. It was only about the proper remedy for a failure to knock before executing a validly issued warrant. No one contended knock and announce isn't required, and no one said the X rule is dead.
Also, the cops didn't bust the door down. They announced their presence, waited "3 to 5 seconds', then opened an unlocked door. Where they found what the warrant said they could look for - drugs and guns (included a loaded one propped in a chair).
Cops still generally have to knock, and folks who claim cops have failed to knock still ahve remedies - they just can't get the resulting evidence suppressed.

Posted by: chris on June 16, 2006 at 9:39 AM | PERMALINK

"So now police do not need to knock -- so they can come flying through your door without warning. What happens when they get shot as intruders?"

This is what will happen.

http://www.theagitator.com/archives/cat_cory_maye.php

In Missippi, you'll go to death row, in Michigan, where we've never had the death penalty, you'll go to prison for life, presumably.

Posted by: witless chum on June 16, 2006 at 10:27 AM | PERMALINK
Actually, I have long agreed with this sentiment. I have long been unhappy that due to a mistake (to be generous) by the cops should lead to objectively valid evidence of criminal activity being tossed out. MY solution is that you do not toss the evidence that was improperly acquired...you punish the cops and the Chief of Police/Police Commissioner. You punish, severely, those who made the mistake, not society as a whole (by allowing a clear criminal to skate on a technicality).

Severe monetary penalties and even jailtime for cops and Commissioners/Chiefs that see violations in evidence gathering.

We already have criminal laws that allow that; both at the federal level (see, for instance, 18 USc 242) and in many, if not all, states.

However, since the executive branch has prosecutorial discretion, and is never interested in looking like they are punishing cops for excessive zeal in going after crooks, they only get enforced against police when the violation is extreme, when the public evidence is clear, and when there is no way to throw up a smokescreen to defend the police conduct. And often not even then.

As such, they provide no real deterrent to routine violations of Constitutional rights by the police.

The only thing that does is frustrating the purpose of such misconduct in the pursuit of criminal convictions by excluding its fruits from the effort to secure such a conviction.

I'm serious. You'd quickly see a huge drop in illegally/improperly acquired evidence.

This seems self-evidently untrue, since in fact provisions setting forth those penalties already exist; it is, therefore, clear that eliminating the exclusionary in favor of those kinds of penalties would not reduce violations further.

Posted by: cmdicely on June 16, 2006 at 10:32 AM | PERMALINK
A lot of this alarm is off base. Read the opinion. It was only about the proper remedy for a failure to knock before executing a validly issued warrant. No one contended knock and announce isn't required, and no one said the X rule is dead.

This argument, if you read the thread, has been repeatedly dealt with upthread; this creates a hole big enough to drive a truck through in the exclusionary rule, which is the only effective remedy in cases like this; criminal remedies which exist are almost never applied in cases like this, despite the clear violation, and the civil remedies are ineffective; the exclusionary rule alone directly attacks the institutional motivation for evading the Constitutional requirements.

Posted by: cmdicely on June 16, 2006 at 10:36 AM | PERMALINK
Who's going to pay for all those doors destroyed when no evidence is found during the search???

Some enterprising attorney should try to make a Takings Clause case out of it. Sure, its ridiculous, but there has to be some upside to having insane right-wingers running the judiciary.

Posted by: cmdicely on June 16, 2006 at 10:38 AM | PERMALINK
What you wrote was that shouting was insufficient but knocking was sufficient.

Um, no, it wasn't. I never said knocking alone was sufficient, either to meet the requirements of the knock-and-announce rule (which requires both), or to have "substantial compliance", or to acheive the effect of notice (what will do that depends on circumstance). I did say that the police made manifest in their own explanation that the intent was for their particular announce-but-don't-knock was to frustrate the purpose of the knock-and-announce requirement. That's it.

Posted by: cmdicely on June 16, 2006 at 10:42 AM | PERMALINK
There is little evidence that the exclusionary rule actually does deter illegal searches and seizures.

Sure there is; the increasing professionalism Scalia himself points to includes training directed at acheiving exactly what the court has laid down as the rules governing searches and seizures, focussed on avoiding the application of the exclusionary rule. Sure, there are cases like this where there are still violations, but the evidence Scalia points to that the problem is being addressed is itself the direct product of the exclusionary rule, and the incentive for those efforts will fade as the rule is weakened.

Posted by: cmdicely on June 16, 2006 at 10:44 AM | PERMALINK

"And the Supreme Court essentially provided them a license to deliberately do what is forbidden by the Constitution without fear of consequence.)"

If I'm George Bush, when somebody threatens to litigate the NSA spying, I say "Bring It On!"

Posted by: brewmn on June 16, 2006 at 10:55 AM | PERMALINK

this is all a result of the tortion put on the system by our crazy drug laws - this [the drug laws] is a case where the cure is worse than the disease. That said look at this issue with drug policy set aside. Would you really want evidence on a child molester excluded because the police did not count enough one-Mississippi's between knocking and entering? Scalia has not attacked the original meaning or intent of the fourth amendment, he's adjusting the remedy for it's noncompliance. I think if you put your partisanship aside most readers would see that. We should direct our frustration at the correct culprit - politicians too afraid to correct our dysfunctional drug policy.

Posted by: minion of rove on June 16, 2006 at 11:18 AM | PERMALINK

Would you really want evidence on a child molester excluded because the police did not count enough one-Mississippi's between knocking and entering?

What I want is government agents not to knowingly and deliberately violate the law; if it takes the credible threat, with the will to carry it out, of letting whoever they target with such violations go free to acheive that end, its a price I'm willing to pay; I'd rather, of course, there was a system where an effective means of punishing the government-agent wrongdoers existed, but until such a system can be demonstrated to work, you won't get me to abandon my support for a vigorously enforced exclusionary rule.

Scalia has not attacked the original meaning or intent of the fourth amendment, he's adjusting the remedy for it's noncompliance.

He's nullifying the only effective remedy for deliberate action in violation of Constitutional rights in a broad class of cases. This frustrates the intent of the Fourth Amendment, and prevents its original meaning from being realized.

I think if you put your partisanship aside most readers would see that.

Opposition to police excess is hardly a partisan concern; or at least it didn't used to be; both the civil libertarians on the left, and those crusading against the "jack-booted thugs" of the government on the right used to understand the need for government tightly limited in its exercise of police powers.


Posted by: cmdicely on June 16, 2006 at 11:37 AM | PERMALINK

Ron Byers: To paraphrase my old contracts instructor, SOOOOO.

Sooooo, there is no necessity to wait for a Democrat to nominate Kennedy's replacement if I want a justice like him.


. I never said knocking alone was sufficient, either to meet the requirements of the knock-and-announce rule (which requires both), or to have "substantial compliance", or to acheive the effect of notice (what will do that depends on circumstance). I did say that the police made manifest in their own explanation that the intent was for their particular announce-but-don't-knock was to frustrate the purpose of the knock-and-announce requirement.

The case is about whether knocking is sufficient but shouting isn't, all other things taken into account. maybe it's time for you to reread what you wrote, and explain exactly why the contrast between knocking and shouting makes this such a threatening judgment (or perhaps what you didn't mention, a 3-5 second wait instead of a 20 second wait). The police did not explain that their purpose was to frustrate the purpose of the knock-and-announce requirement; they said it was to reduce the risk of getting shot. If they had wanted to frustrate the purpose of the knock-and-announce rewuirement they (perhaps) would have agreed beforeheand to say they were concerned that the evidence might have been destroyed -- then they could have barged right in, according to Kennedy and according to precedent (or some other action more clearly communicating an intent to frustrate the purpose).

The main claim of the majority opinion is that the evidence would have been obtained anyway had the police waited a little longer and knocked, so it shouldn't be excluded. The Constitution requires a warrant; it does not require knock-and-announce.

You still haven't quoted the passages of the majority opinion (i.e. ignoring iii(b)) that you disagree with.

Posted by: republicrat on June 16, 2006 at 11:57 AM | PERMALINK

another point: this didn't change anything -- it affirmed lower court opinions. Hardly "activist" or anything like that.

Posted by: republicrat on June 16, 2006 at 11:59 AM | PERMALINK

Scalia did not say the exclusionary rule should be forever abandoned, he said it has worked well enough that we can take the training wheels off and try other remedies for awhile. If Cmdicely's fears are borne out and it looks like we're descending into a jackbooted terror state, the issue will be readressed and the exclusionary rule could possibly be reimposed.
I stand by my original post - it's our drug laws that are causing the chaos, not police procedures.

Posted by: minon of rove on June 16, 2006 at 12:00 PM | PERMALINK

also, the notion that Scalia is hostile to the 4th Am, or protections for criminal defs in general, doesn't hold water. you can argue he picks and chooses on originalism; you can't argue he's routinely sided with cops against crim suspects.
http://www.slate.com/id/2129107/

Posted by: chris on June 16, 2006 at 12:06 PM | PERMALINK

republicrat: The case is about whether knocking is sufficient but shouting isn't, all other things taken into account.

God, man, READ!! The case was NOT about whether the officers were required to knock, yell, whatever—everybody agreed that the officers had failed to conform their behavior to the requirements of 4th Amendment law. It was not. in. dispute.

Posted by: dj moonbat on June 16, 2006 at 12:43 PM | PERMALINK

Sooooo, there is no necessity to wait for a Democrat to nominate Kennedy's replacement if I want a justice like him.

If you're implying that a modern-day Republican would nominate a justice like him, you're either deluded or dishonest.

Although the difference between Kennedy and Scalia, Thomas, Alito and Roberts does show how radial the modern Republican party has become.

Posted by: Gregory on June 16, 2006 at 1:00 PM | PERMALINK

cmdicely,

Sure there is; the increasing professionalism Scalia himself points to includes training directed at acheiving exactly what the court has laid down as the rules governing searches and seizures, focussed on avoiding the application of the exclusionary rule.

Assuming this typically opaque cmdicely construction ("training directed at achieving...rules?" What's that supposed to mean?) is supposed to refer to what dj moonbat has summarized as "the rise of civil rights lawyering," that is not evidence that the exclusionary rule is an effective deterrent. As I said, there is little evidence of such an effect. It is evidence only of an increasing ability or willingness to go after civil rights violations.

Sure, there are cases like this where there are still violations, but the evidence Scalia points to that the problem is being addressed is itself the direct product of the exclusionary rule,

Huh? If the exclusionary rule were effective at deterring illegal searches and seizures, that would reduce the need for civil actions to remedy those violations, not increase it.

Posted by: GOP on June 16, 2006 at 1:09 PM | PERMALINK
The case is about whether knocking is sufficient but shouting isn't

No, it isn't. First, if the issue was about what was sufficient under the requirements of a knock-and-announce warrant (the answer to which is so obvious that it hardly bears discussion), it still wouldn't be about whether knocking is sufficient but announcing alone isn't, it would be about whether announcing alone is sufficient or whether, instead, both knocking and announcing were required.

But, second, the case isn't about what is sufficient at all, since even the law enforcement side of this case wasn't so completely moronic as to argue that a knock-and-announce warrant doesn't actually require both knocking and announcing, or even to advance some bizarre argument about "substantial compliance".

The question this case was about is: given that such a practice is neither actually nor substantially in compliance with the legal requirements, is the remedy of exclusion necessary to give adequate protection to Fourth Amendment rights?

maybe it's time for you to reread what you wrote, and explain exactly why the contrast between knocking and shouting makes this such a threatening judgment

Maybe its time for you to reread what I wrote. Why this is a threatening judgement is because it provides a license for police to deliberately and knowingly defy the legal requirements for search without fear of any substantial consequences.

Posted by: cmdicely on June 16, 2006 at 1:10 PM | PERMALINK
Scalia did not say the exclusionary rule should be forever abandoned, he said it has worked well enough that we can take the training wheels off and try other remedies for awhile.

Abandoning the remedy in a broad class of cases of deliberate unconstitutional action on the basis that it has worked well is completely moronic.

Though, I admit, no moreso than I expect of Scalia.

Posted by: cmdicely on June 16, 2006 at 1:12 PM | PERMALINK

Hey, you are right, Scalia wants to take us right back to the original state of the law in 1775.

Have you ever studied originalism? It isnt a judical philosophy. It is an excuse.

Scalia wishes to take us back to the meaning of the words as written, when they were written. He described himself as a textualist 1st and an originalist 2nd.

Anton has no reason to make excuses. He has a lifetime position and has always conducted himself as a serious, scholarly justice. Feel free to degrade his intelligence but you won't get far. His reputation as one of the most brilliant jurist ever to serve has been well documented. His brilliant writing and articulate speeches will stand the test of time.

And it isn't Kennedy you need to worry about. It's either Stevens or Ginsburg. They are the next to be replaced and neither is in the best of health. GWB would absolutely replace either or both with a Roberts or Alito. There is a solid core of well qualified conservative judges to choose from and was we've seen from this judiciary committee the Senate Democrats are more likely to make asses of themselves than any candidate.

You may find if a democrat does win in 2008 and Stevens and Ginsburg are able to hang on the fact the filibuster has been maintained in the Senate is a problem. It will be very easy for the GOP senate to mount a filibuster. The gang of 14 would not be a factor. President Hillary will not be able to replace either with a lefty. No matter who the next President is the court will become more conservative after these two retire.

With Thomas, Roberts and Alito averaging under age 55 you really need to say prayers each night for the good health of John Stevens and Ruth Ginsburg. Her napping during hearings is not a posiitve sign.

Posted by: rdw on June 16, 2006 at 2:48 PM | PERMALINK
You may find if a democrat does win in 2008 and Stevens and Ginsburg are able to hang on the fact the filibuster has been maintained in the Senate is a problem. It will be very easy for the GOP senate to mount a filibuster.

What GOP Senate?

Posted by: cmdicely on June 16, 2006 at 2:53 PM | PERMALINK

Abandoning the remedy in a broad class of cases of deliberate unconstitutional action on the basis that it has worked well is completely moronic.

This isn't true and why does Scalia get all the credit? It may be true the police in this case did not act within the entire letter of the law but it's also true the very minor error should not give criminals a get out of jail free card.
The people only suffer by keeping scum on the street. The punishment should fit the crime. In this case tossing the evidence, collected with a proper search warrant, is too extreme a remedy.

It's true this court will be more conservative than any of those over the last 50 years but the constitution will be preserved and more criminals will find their way behind bars. This is what we all want.

Posted by: rdw on June 16, 2006 at 2:56 PM | PERMALINK

As opposed to the "Living Constitution" which dispenses with any semblance of a theory and gets straight to the Justices' POV without apology.

Got it.

Posted by: Birkel on June 16, 2006 at 3:39 PM | PERMALINK
This isn't true and why does Scalia get all the credit?

It is true, and he doesn't get all the credit, but he gets the focus of the credit because he wrote the decision.

It may be true the police in this case did not act within the entire letter of the law

Its true in this case that the police deliberately and knowingly did not comply with the law.

but it's also true the very minor error should not give criminals a get out of jail free card.

If the exclusionary rule is not applied to deliberate and knowing violations such as this, what will hold the police to the law?

The people only suffer by keeping scum on the street.

The people only suffer by the courts tolerating deliberate lawlessness by agents of the government without consequence, too.

Posted by: cmdicely on June 16, 2006 at 4:01 PM | PERMALINK

What GOP Senate?

The GOP Senate in place. We have 31 red states and more leaning red than blue. We might lose Santorum but we may pick up Kean.

One think is for sure, We'll have many more than 45 Senators and a very solid block will be conservative.

Odds are we'll have more than 55 GOP Senators or at least a more naturally conservative Senate reflecting a more conservative electorate. The fact is the old liberal majorities are gone and those who provided the core are now very old. Tha post 68 anti-war block is now solidly into collecting social security.

Younger liberals are not as liberal and they're definitely not as numerous. Tell someone under 40 tax rates were 70% before Reagan and they won't believe Democrats were that stupid. We're all supply-siders now. We all see the need for a strong military and national security and we have liberals pushing for balanced budgets. You can't even get an anti-war protest going on any college campus. GWB and the NSA do whatever they want and the NYT's hemmorrages legal expenses losing 9-0 in the Sopreme court. Scooter libby will have a gaggle of reporters on the stand with no amendment protecting them.

These aren't your daddy's liberals. This isn't the 60's.

Posted by: rdw on June 16, 2006 at 4:10 PM | PERMALINK

The people only suffer by the courts tolerating deliberate lawlessness by agents of the government without consequence, too.

You are drawing far too fine a line on this. The cops didn't knock but did yell. The biggest difference is they entered without waiting for the criminal to answer the door. I would prefer this. It also means the criminal didn't have a chance to flush evidence or find a gun and do the police harm.

We should always give the benefit to the cop over the crimnial. There's no loss of rights here. The police had a valid warrant and not waiting for the perp to answer the door did not result in a loss of his rights. One doesn't have the right to hide or destory their stash.

To the extent this invites abuse judges are perfectly capable of making reasonable decisions. Their 1st priority is to keep society
safe. A violation of procedure when there isn't a violation of a fundamental right is no excuse for giving some low life a free pass.

Posted by: rdw on June 16, 2006 at 4:17 PM | PERMALINK

If the exclusionary rule is not applied to deliberate and knowing violations such as this, what will hold the police to the law?

Judges and legislatures. This isn't a free pass for cops either. Any competent judge can decide is the cops actually violated a right. Also if legislatures decide the court acted incorrectly they can easily pass legislation 'correcting' this decision. They can do so federally or at the state level or both.

I think the real anger here among liberals is they know legislatures will never pass such criminal friendly statutes. They're more likely to drop 3 strikes down to 2 strikes. The fact is the public is not upset about this. well find out shortly but I'd bet more support the decision than not.

This is why we have elections.

Posted by: rdw on June 16, 2006 at 4:24 PM | PERMALINK
Judges and legislatures.

How.


This isn't a free pass for cops either.

Yes, it is.

Any competent judge can decide is the cops actually violated a right.

So? All the judges, right up to Supreme Court did decide that in this case. How does that discourage repeating the deliberate wrongdoing?

Also if legislatures decide the court acted incorrectly they can easily pass legislation 'correcting' this decision.

Assuming that is true, what specifically can legislatures do that would be as effective as the exclusionary rule in discouraging violations of the Fourth Amendment, and why should the protections of the Fourth Amendment be dependent on additional legislative action?

Why should the legislature of the choice of whether or not the Fourth Amendment is protected?

I think the real anger here among liberals is they know legislatures will never pass such criminal friendly statutes.

Actually, no; such statutes already exist (at the federal level, 18 USC 242), but are fundamentally ineffective because the executive branch is loath to enforce them against executive agents, even the federal executive agaisnt state agents.

The fact is the public is not upset about this.

No kidding, that's how the slow erosion of liberty works; you first attack categorical, universal rights were the protection is the least popular, and then once you've broken down the idea that they are categorical, universal, rights you slowly eat away at the edges.

Posted by: cmdicely on June 16, 2006 at 4:38 PM | PERMALINK

Cmdicely

Since your a law student there's an interesting anecdote you might use in an argument some day. In one of Alan Derschowitz' books he talks of defending Harry Reems, the male star of Deep Throat. Liberals were all over that case; Warren Beatty held a fundraiser for Reems with a banner that said, "This week Harry Reems, next week Helen Hayes."
That's what your slippery slope arguments are starting to sound like -- if cops are worried about being shot and call out to a resident rather than physically knock on the door, they should have the evidence obtained by a valid search warrent voided in court. This sounds a lot like fanaticism to me and most Americans, and is why we need a conservative Court that has not checked it's common sense at the door.

Posted by: minion of rove on June 16, 2006 at 6:18 PM | PERMALINK
That's what your slippery slope arguments are starting to sound like -- if cops are worried about being shot and call out to a resident rather than physically knock on the door, they should have the evidence obtained by a valid search warrent voided in court.

The evidence was not obtained by a valid search warrant. It was obtained through a search not conducted under a valid search warrant, despite the fact that a valid search warrant had been issued.

Nor did they announce instead of knocking, they announced instead of knocking and announcing.

And, of course, if they had valid cause to believe it was unsafe to lawfully serve a knock and announce warrant, they had the option of seeking a no-knock warrant. They chose not to.

They then chose deliberately to violate the law, and the Scalia court has allowed this to have no substantive consequences, encouraging law enforcement to treat every "knock-and-announce" warrant as if it were a "no-knock" warrant in knowing and deliberate violation of the law, as occurred here, since the Supreme Court has directed that in such cases, so long as the search would have been legal if conducted properly, all, as far as the exclusionary rule goes, will be forgiven, despite the fact that the search was not legal, and was illegal not because of innocent mistake by the police (as under the "good faith" exception), but because of a knowing and deliberate violation of the restrictions imposed by the court in issuing the warrant.

This sounds a lot like fanaticism to me and most Americans, and is why we need a conservative Court that has not checked it's common sense at the door.

We certainly do need a Court that has not checked its common sense at the door; unfortunately the Roberts Court is self-evidently no such Court.

Posted by: cmdicely on June 16, 2006 at 7:28 PM | PERMALINK

Kennedy: Todays decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression.

dj moonbat: The case was NOT about whether the officers were required to knock, yell, whatevereverybody agreed that the officers had failed to conform their behavior to the requirements of 4th Amendment law. It was not. in. dispute.


cmdicely: This is not substantial compliance; the only way knocking would produce fear of being shot that shoting "Police, Search Warrant!" wouldn't is if the shouting wouldn't be heard and thus would fail to actually provide notice. Since the purpose of the knock-and-announce requirement is to provide notice, the police by their own statement were in nothing like substantial compliance, since they were deliberately defying the knock-and-announce requirement with the specific intent of frustrating the purpose of the requirement. You have no knowledge that the specific intent of the police was to frustrate the purpose of the requirement; you believe, but I and the police disbelieve, that the shouting is less informative to the shooter about the location of the target. If the police did indeed shout loud enough to be heard, then the police did "actually provide notice" and thus were in "something like" substantial compliance.

republicrat: this didn't change anything -- it affirmed lower court opinions. Hardly "activist" or anything like that. It is merely the case that you, I, and Hudson do not have more rights today than we did when Hudson first attempted unsuccessfully to have the evidence suppressed.

Posted by: republicrat on June 16, 2006 at 9:09 PM | PERMALINK

Are there any queers in the theater tonight?
Get them up against the wall!
There's one in the spotlight, he don't look right to me,
Get him up against the wall!
That one looks Jewish!
And that one's a coon!
Who let all of this riff-raff into the room?
There's one smoking a joint,
And another with spots!
If I had my way,
I'd have all of you shot!

In The Flesh (Waters)
http://www.pink-floyd-lyrics.com/html/in-the-flesh-2-wall-lyrics.html

Posted by: mezon on June 16, 2006 at 11:37 PM | PERMALINK

No kidding, that's how the slow erosion of liberty works; you first attack categorical, universal rights were the protection is the least popular, and then once you've broken down the idea that they are categorical, universal, rights you slowly eat away at the edges.

This is the kind of hysterical nonsense that erodes credibility. Liberals are in hysterics over a triviality. So what if the cops yelled or knocked and yelles or knocked and went right in without waiting for some arbitrary period. A judge had already authorized a search. From that point on part as much of the focus has to be on the safety of the men executing the orders of the Judge.

Reasonable people would err on the side of police safety. In this case their was no loss of rights on the part of the criminal thus no erosion of civil liberties. Pretending otherwise can only erode your credibility in the future.

The focus on Scalia also strongly suggest this is purely about politics and has nothing to do with civil liberties. It takes 5 justices to form a majority opinion and no one vote is more important than any other. Scalia just happens to be visibly, proudly and eloguently conservative. That's why he's the target. To bad for you he's all that and brilliant.

This is a rather bizarre and weak effrot to 'spook' the general public into thinking the conservatives on the bench are ready to declare a police state. You really need a better example and even you are not addressing your most pressing problem. You need to start winning elections and you can only do that by becoming less liberal. This could not have been made more obvious than the nomination hearings for Roberts and Alito. There's no better example of just how pitiful the Senate Democrats on the judiciary committee than Joe Biden calling for an end to the practice of Senate Democrats participating in hearings. The gap between the liberal elites and the general population is an ocean.

There are not more than 1/10 of 1% of the people even paying moderate attention tothis issue. It's a waste.

Posted by: rdw on June 17, 2006 at 10:51 AM | PERMALINK

We certainly do need a Court that has not checked its common sense at the door; unfortunately the Roberts Court is self-evidently no such Court.

This is so clearly just a political issue. At least attacking Scalia makes some sense in that liberals have been hating him so long. He of course wears their 'pain' as a badge of honor but he is still a well established 'bogeyman' for the left.

Going after Roberts is just stupid. He destroyed the judiciary committee. Even the liberal press admitted it wasn't a fair fight he's that smart, that smooth, that articulate and the perfect example of Mr. Clean. Did you see his family at the press conference? Central Casting could not have done better.

Attack Mr. Clean and you will come off badly every time.

Posted by: rdw on June 17, 2006 at 11:01 AM | PERMALINK

Some interesting comments here, but nobody seems to have noted the obvious: the policies and practices of your local police department are usually determined, at least in part, by your local government. And especially if you live in a big city, the local government is likely run by liberals. (Mr. Hudson's home was, I believe, in Detroit.)

Don't care for violations of the knock-and-announce rule? Tell the mayor. I'm pretty sure the Supreme Court doesn't give a crap what you think. But your mayor might.

Posted by: Paul S. on June 18, 2006 at 1:36 AM | PERMALINK




 

 

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