More on Hudson and the Exclusionary Rule

|

Occasional Reason contributor, and indefatigible chronicler of police search abuses, Radley Balko has lots of good Hudson and exclusionary rule chatter and links going on on his site The Agitator. Balko himself is cited in Justice Breyer's dissent (see page 10) when Breyer is questioning the Court's sanguine assumptions about police behavior in raids minus the stick of the exclusionary rule.

At the heart of Balko's objections to the decision's implication that civil suits are a workable remedy to 4th amendment violations if the exclusionary rule isn't to apply:

Given that the majority is so keen on civil remedies (instead of exclusion) as a deterrent for illegal no-knock raids, does that mean we can expect to see Scalia, Alito, Roberts, and Thomas voting to grant cert to the masses of Section 1983 cases involving no-knocks that get denied at the appellate level because of immunity?

The obvious answer to that question shows the absurdity of their claim that civil actions are cabable of deterring illegal raids.

NEXT: What If CBS Hosted a Teen Sex Orgy and Nobody Came?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. If I may pass on the legal analysis for a moment of politics:

    Note that Alito and Roberts were both in the majority in this case, reflect on whether a President Gore or President Kerry would have appointed them or anyone like them, consider that the likelihood of this kind of ruling on this kind of case doubtless contributed to Bush’s appointing them to the Court in the first place, and ask yourself whether it’s really the Republican party that’s more in line with libertarian ideals.

    Thank you. Back to the legal analysis.

  2. considering the voting records of breyer and ginsburg, my answer is – yes

    the repubs ARE more in line with libertarian ideals

    mebbe my opinion is a bit skewed since i have lived in two states completely dominated by democratic legislatures and governors and have seen FAR FAR more authoritarian/anti-freedom steps taken by these govt’s than i have ever seen in a repub run state.

    seattle city council is even worse, than the state in general

    some of my faves are the smoking ban that bans smoking in all private businesses and even up to 25 ft from the businesses

    or the ‘critical areas ordinance” which makes Kelo decision seem restrained

    while bush is certainly not a libertarian minded repub, i’ll take a roberts or alito over a ginsburg or breyer any day of the week

  3. Ted:

    I got into an argument with my girlfriend after reading Radley’s site earlier today regarding this very matter. She is unconvinced that President Kerry would have nominated justices that would have been any better, while I pointed out that both Dem-nominated justices were against this decision. Despite the fact that I still believe that John Kerry was completely unsuited for the presidency (that doesn’t mean that I believe that Bush is), I wish I’d have voted for him just for his potential SCOTUS nominees.

  4. Sorry, but I fail to see the sky falling here. Breyer notes that, had the police had a “no-knock” warrant — rather than the plain warrant they possessed — there would be no problem with their mode of entry.

    Sure, the majority’s reasoning is very sketchy, but really, the only thing they disagree with the minority about is whether no-knock raids require a special warrant.

  5. well put, crimethink

    i am still looking for the “knock” wording the constitution btw… 🙂

  6. I’m still looking for the “abortion”^H^H^H^H “choice” wording in the constitution.

  7. I’m still looking for the “abortion”^H^H^H^H “choice” wording in the constitution.

  8. Let’s say, for the sake of argument, that the court’s legal reasoning is correct.

    I said this in the other thread and I’ll say it here: Aren’t no-knock raids a really bad idea for the cops involved? If you wake up in the middle of the night and hear intruders, and you have a gun, well, we all know how this will turn out.

    Wouldn’t it be a better idea to give the occupants of the residence every possible opportunity to comply? Including that thing that cops in movies do with the bullhorn? “You are completely surrounded. Come out with your hands up or we will have no choice but to enter with force. Again, come out with your hands up or we will have no choice but to enter with force.”

    Somebody in the other thread said that if they gave warning then you could flush drugs down the toilet, and if they arrested you on the street, where you’re less likely to be armed and you certainly don’t have the advantage of being able to fire from a concealed position, then they couldn’t confiscate your house. I guess that protecting the lives of cops is less important than catching somebody who might have teh weed.

    Also, somebody said on the other thread that the legal justification for requiring a knock is that under the common law you’re supposed to be given an opportunity to obey the law before they do something that could damage your property (e.g. knock down a door and run in with guns drawn). That sounds like an eminently sensible stance, and if it is indeed part of the common law then this ruling was a travesty.

  9. Head shots, head shots…. Kill the sons of bitches.

  10. I said this in the other thread and I’ll say it here: Aren’t no-knock raids a really bad idea for the cops involved? If you wake up in the middle of the night and hear intruders, and you have a gun, well, we all know how this will turn out.

    Maybe with you on death row for shooting the son of the police chief?

  11. thoreau, you are right. in many (if not most) circumstances – executing a warrant via no-knock is a BAD IDEA

    that is 100% completely irrelevant to whether a knock requirement is required by the constitution

    constitutional analysis rests on the constitution. not what is good POLICY

    if one is discussing constitutional law, one has to accept 2 things that many “judicial activists” (to borrow a phrase) refuse to

    1) sometimes BAD law *is* constitutional. just because a law or policy is bad does not mean that there is some kind of way to twist the constitution to rid ourselves of the bad law.

    2) sometimes a GOOD law could be unconstitutional. there are many circumstances where one could propose a beneficial law, that REGARDLESS OF ITS BENEFIT – is still unconstitutional

    constitutional analysis is not results based.

    and to clarify – on the PROCEDURAL front vs. the constitutional law front – the VAST majority of warrant executions are “knock” NOT “no knock”

    also note that any state can (and many do) recognize additional rights that are not present in the federal const. this decision only affects federal rights. many states recognize additional rights such that state agents would still be prohibited from doing a noknock warrant execution without specific authority within the warrant. that’s the great thing about our republic. any state can recognize additional rights or broader rights than the federla constitution recognizes

  12. I said this in the other thread and I’ll say it here: Aren’t no-knock raids a really bad idea for the cops involved? If you wake up in the middle of the night and hear intruders, and you have a gun, well, we all know how this will turn out.
    Comment by: thoreau at June 15, 2006 10:28 PM

    The police, who have the training, weapons, superior numbers, and element of surprise, will be justified in shooting said homeowner because they had a split-second to make a decision, and were in reasonable fear for their lives.

    The innocent homeowner, who is awakened in the middle of the night by armed men wearing masks, is expected to rationally analyze the consequences of failure to comply with law enforcement officers in that same fraction of a second. And to react appropriately as required by the law.

    Police officers are held to a higher standard. Because it takes a special kind of person to figure out that “It was Amadou Diallo [or any other innocent civilian] who set the stage for tragedy.

  13. Somebody in the other thread said that if they gave warning then you could flush drugs down the toilet
    Comment by: thoreau at June 15, 2006 10:28 PM

    Remedy: Set up surveillance. Have water to the house shut off. After the first flush of a toilet is detected, the police knock on the door and announce themselves.

    If the suspect tries to flush the toilet again, it won’t work. The tank will be empty.

    But the patient approach is not as tacti-cool as playing Delta Force.

    Besides, if the amount of drugs in question is small enough to be flushed down a toilet, why is it worth the risk of a military-style assault?

    Probable answer: because the risk is borne by the civilians, not the police, who then are lionized for putting their lives on the line for the community.

  14. again, all completely tangential to the issue resolved

    the issue was constitutionality, not whether or not it is good policy and when to do and not to do noknock warrants

  15. the issue was constitutionality, not whether or not it is good policy and when to do and not to do noknock warrants

    Yes, but:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

    Either that clause of the Fourth Amendment to the United States Constitution has meaning, or it does not. You may consider the police breaking in your door just fine and dandy; I do not. Frankly, right now it’s so-called conservative justices who are nuancing their way into creating new “rights”, except in this case they are creating rights for the state. Give me the judicial activism that created such horribly “liberal” rulings such as Roe v. Wade, Brown v. Board of Education of Topeka, and Miranda v. Arizona over this police-state bullshit.

  16. jf,

    Unfortunately, no-knock raids are considered reasonable by many in and out of government; thus, there is no violation of the Fourth. A weasel word like “reasonable” makes the Fourth less meaningful than most libertarians would like.

  17. the issue was constitutionality, not whether or not it is good policy and when to do and not to do noknock warrants

    The issue was not constitutionality; it was whether or not a civil suit is a proper remedy for violating the terms of a warrant. The majority said yes, effectively making all warrants no-knock in the process. The constitutionality of no-knock warrants was not at stake. Even before the ruling, police could enter a dwelling without knocking if they thought evidence was being destroyed, such as drugs flushed down the toilet.

  18. Great! Unleash the machine-gun toting yahoos!

  19. This states’ rights thing is a canard:

    any state can recognize additional rights or broader rights than the federla constitution recognizes

    This is a supreme court ruling; most cases where this would come up are drug cases. They’ve violations of federal law, therefore federal evidentary rules will probably apply.

    Can we please end the drug war before every goddamn federal agency has their own swat team (and matching administrative law court)? (except NOAA)

  20. On the exclusionary rule generally, I like the proposal one of the Reasonwriters made here about allowing the exclusionary rule to be suspended for the prosecutor if and only if the violator (eg, the bad policeman) is punished.

    The proposal was made that the police would agree to punish the police man first, b4 the judge would suspend the exlusionary rule and let the evidence in.

    I think the mechanics should work differently. I think a trial judge should let the bad policeman introduce the evidence and then shackle him for contempt of court if he perceived a fourth amendment wrong. Because that is who Fourth Amendment violations offend: the integrity of the court. I mean the guilty guy isn’t coming with clean hands, so our equities tell us that he desrves not much consideration. But it is not nice to the Court to trample on the Constitution in a criminal proceeding. Using the evidence from Fourth Amendment violations literally shows contempt for the court itself. The beauty of my tweak here is that no new laws are needed. The court already has contempt of court powers to throw the police man in jail for a year or so, without asking permission of the police department.

    Furthermore, trial judges don’t need SCOTUS permission to start doing this, they can do it today. it would also give the judge wide discretion over who to punish and how much.

    Are there any Carter appointees left on the fed trial court bench?

  21. Dave,

    That sounds great until you realize that a large percentage of judges are ex-prosecutors, and even if they aren’t, they know that the most reliable special interest involved in getting them elected/appointed is the FOP.

    Or, to put it more bluntly, as a current 3rd circuit judge (he was then a circuit court judge)once said in a speech “I’m part of [local U.S. Attorney’s] team that cleans up the streets.” The days of neutral magistrates, if they ever existed, have long since passed.

  22. thoreau:

    The common law principle you mention regarding lowering the risk of property damage, etc. is cited in Hudson, from Semayne’s Case (K.B. 1604), from which I quote in part:

    That in all cases when the King is party, the sheriff (if the doors be not open) may break [into] the party’s house, either to arrest him or to do other execution of the King’s process, if otherwise he cannot enter. But before be breaks [into] it, he ought to signify the cause of his coming and to make request to open the doors. That appears well by the Statute of Westminster the First (1275) c 17 [repealed] (which is but an affirmance of the common law) as hereafter appears, for the law without a default in the owner abhors the destruction or breaking [into] of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party when no default is in him; for perhaps he did not know of the process of which, if he had notice, it is to be presumed that he would obey it.

    Here are the facts of the police entry as reported in Hudson:

    This case is before us only because of the method of entry into the house. When the police arrived to execute the warrant, they announced their presence, but waited only a short time — perhaps “three to five seconds,” App. 15 — before turning the knob of the unlocked front door and entering Hudson’s home. Hudson v. Michigan, 547 U.S. ____ (2006) Emphasis added.

    The decision may be a travesty, but not on that ground.

  23. Or, to put it more bluntly, as a current 3rd circuit judge (he was then a circuit court judge)once said in a speech “I’m part of [local U.S. Attorney’s] team that cleans up the streets.” The days of neutral magistrates, if they ever existed, have long since passed.

    That is all well and good, but I still love the idea that b4 he went up to testify about illegally seized evidence, the policeman would have to ask himself in his head, “Do I feel lucky, punk? Well . . . do I?”

  24. That is all well and good, but I still love the idea that b4 he went up to testify about illegally seized evidence, the policeman would have to ask himself in his head, “Do I feel lucky, punk? Well . . . do I?”

    OK, Dave, I think we have some common ground here. That would indeed be nice.

  25. The only good thing about the exclusionary rule (which the Courts just made up, no?) is that there is no better alternative (at least not yet, although some version of what has been discussed above would be fine with me). The only time the rule ever comes into effect (or almost only) is to bar real evidence of someone’s guilt. Unfortunately, most of this nonsense relates directly to the “drug war,” a complete and utter travesty in and of itself.

  26. “Besides, if the amount of drugs in question is small enough to be flushed down a toilet, why is it worth the risk of a military-style assault?”

    I think it was Jay Leno who had a joke about that a while back, to the effect of: “If the point of the raid is to destroy the drugs, then isn’t it just as effective to knock on the door and get the dealer to destroy them himself?”

  27. one of the Reasonwriters

    I am pretty sure it was Tim Cavanaugh, who I always think of as Ringo somehow. In a good way. I like Ringo.

  28. The world would be a better place if the cops weren’t allowed to have guns, frankly.

    Dave: You’re creeping me out here, man, because in this case I agree that cops who violate the Fourth (or any other) amendment ought to be held in contempt. Not holding my breath for it, though.

  29. Not holding my breath for it, though.

    every judge (both state and federal) has this remedy on an individual basis and I don’t even think it is that reviewable.

    Even if 99% of judges don’t care about the Fourth Amendment, 1% of the remaining judges could cause a heckuvalotta shock and awe in the LEO community.

  30. and it would be so fun for those judges (ie, the good ones) to solemnly intone that SCOTUS was the ones who invited them to look for alternative remedies. Would send a nice lesson to conservative judges who ain’t as clever as what they think they are by half.

  31. Given that contempt of court is an inherent power of courts to ensure compliance with court orders (civil contempt) or to maintain discipline and order during the actual court proceeding (criminal contempt) and assuming the police officer did not lie under oath (which would also, of course, constitute perjury), what basis would a court have for holding that officer in contempt?

  32. who said those were the exclusive bases of a court’s contempt power?

    wouldn’t it be a shame if a cop got locked away on a faulty contempt charge and had no basis to appeal. Does Justice Alioto care about rights without remedies? What would ORLY say about that?

    I will check the wikipedia and see if they know what the metes and bounds of the contempt power really are . . .

  33. Here is what the wikipedia says:

    United States
    Under American jurisprudence, acts of contempt are divided into two types.

    “Direct” contempt is that which occurs in the presence of the presiding judge (in facie curiae), and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice, and after giving the person the opportunity to respond, may impose the sanction immediately.

    “Indirect” contempt occurs outside the immediate presence of the court, and consists of disobedience of a court’s prior order. Generally a party will be accused of indirect contempt by the party for whose benefit the order was entered. A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt, and to present evidence in rebuttal.

    Sanctions for contempt may be criminal or civil. If a person is to be punished criminally, then the contempt must be proven beyond a reasonable doubt, but once the charge is proven, then punishment (such as a fine or, in more serious cases, imprisonment) is imposed unconditionally. The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court’s order continues: once the party complies with the court’s order, the sanction is lifted. The contemnor is said to “hold the keys” to his own cell, thus conventional due process is not required. The burden of proof for civil contempt, however, is a preponderance of the evidence, and punitive sanctions (punishment) can only be imposed after due process.

    BACK TO DAVE W. Commentary:

    The warrant violation itself (that is, the raid itself) in Hudson sounds like classic indirect contempt under the wikipedia description.

    The fact that they would compound the disobedience by trying to introduce fruit of the poison tree as evidence in a new court proceeding sounds like direct contempt, both on the part of the prosecutor and the witness because it “prejudices the administration of justice” (whatever that means).

  34. remember, just because the fourth amendment itself gives you some protection from unreasonable search and seizure does not mean that the Fourth Amendment is the only protection you get. The Fourth Amendment is a floor, not a ceiling. If the defenadant is accorded more rights at equity than his Constitutional minimum then so be it.

    Just because I am a peacenik who cares about disease don’t mean I can’t play hardball when I need to.

  35. Besides the fact that a defendant may have more rights at equity, it is also possible that the defendant has the same quanta of rights, but that the remedy is less reviewable by Alioto et al. if the remedy is given pursuant to the court’s equitable powers, rather than the Constitution itself.

    Gawd I am beginning to sound like a tax protestor here.

  36. Dave W. raises a good point–the federal constitution, when addressing civil liberties, generally sets minimum protections. The states can and do add greater protections for some of those liberties (e.g., Florida’s constitutional provision on the right to privacy). If the Wars on Drugs, Terror, and Too Much Liberty are leading the federal government (including the SCOTUS) down a path of gutting certain liberties, a Kelo-like backlash at the state level could help a lot. Yes, the feds could still run amok to some extent, but state constitutional protections still matter.

    I’m curious as to whether this case will result in an upsurge of 42 U.S.C. ? 1983 actions. Section 1983 always looks good on paper, but my understanding is that few Section 1983 claims make it anywhere. If we’re going to rely on them (and similar state-level claims) instead of the Exclusionary Rule to be a deterrent to police abuse, then something will need to change. Clearly liability and likelihood of doing time and/or paying fines should be a real threat for both the officers involved and for the state/local agency itself. Not that I want the police to be totally hampered by frivolous litigation (which is a real risk, of course–every guilty creep out there will file a Section 1983 claim if such claims start actually working), but there’s got to be some accountability!

    Of course, I note that Section 1983 doesn’t apply to federal officials. I don’t know if there’s a parallel law for them, but I’m betting that there isn’t, or, if there is, that it has even fewer teeth.

  37. I suppose in those rare cases where the trial judge was also the judge issuing the warrant in the first place, willful failure to comply with the terms of the warrant coupled with testimony known to derive from or relate to evidence gained pursuant to the warrant might make a colorable case for your position. But even then, the police officer does not testify sua sponte — his testimony is insisted upon by the prosecution. Should the prosecuter, arguably more knowledgable about constitutional limitations on criminal procedure and rules of evidence, also be held in contempt?

    I think this is a very large stretch of the concept of contempt even under such unusual circumstances.

  38. But even then, the police officer does not testify sua sponte — his testimony is insisted upon by the prosecution.

    The prosecutor goes to jail for direct comtempt and the policeman for indirect. A perfect symmetry!

    Meanwhile a new prosecutor is appointed and the case goes on. the perp still goes to jail because of the evidence. Sadly, because there is no way to erase the taint of the contemptible thing the prosecutor & policeman did, they must remain in jail for the duration of the perp’s sentence.

    I think this is a very large stretch of the concept of contempt even under such unusual circumstances.

    The retraction of the exclusionary rule is a changed circumstance which makes this long-latent style of contempt suddenly perfectly appropriate. SCOTUS doesn’t have to invite me twice to find new remedies for Fourth Amendment violations.

  39. ok, first of all..

    WRONG.
    the vast majority of drug cases are brought in state court, NOT federal court. this case has meaning in all states, EXCEPT those that recognize additional rights such that no-knock warrants need to be explicitly authorized

    second of all, it *is* a constitutional issue as i stated, not one of policy …. *if* a no-knock entry without preauthorization is *UN*constitutional then clearly the exclusionary rule would apply

    the argument was that it was NOT unconstitutional, so in some cases civil suit would be ok, but exclusionary would not

    also, the state does not really have “rights” in these regards. it is better to use the word “authority”.

    the people have rights (except when democrats are in power ) 🙂 … the state has authority

    i am sorry. i don’t agree that this is a violation of the 4th…

  40. Well, whit, glad to know you won’t mind when the SWAT team busts down your door and shoots you. Hope that works out.

  41. “Gee, we like, totally didn’t follow the procedure on this warrant, but we can use the evidence to convict you anyway. You’ll have to sue us for some sort of remedy, from jail, because we still got you.”

    This really makes me want to listen to nothing but “Cop Killer” for the rest of the day.

  42. Yeah, I know it’s a drag…but wastin pigs is still radical.

  43. Supermike,

    I suppose if someone needed to be arrested at Amunsden-Scott station, South Pole, then the NOAA would then need a police force and administrative court, as most of the past two decades of Station Chiefs have been officers of the NOAA Corps.

  44. timothy, that is a total strawman and totally irrelevant

    there are a LOT of things i disagree with govt. policy on…

    and a lot of things i wouldn’t want to happen to me…

    it does not follow that if one disagrees with something, that it is therefore unconstitutional

    constitutionality aint about what you want to be the case

    it is about what IS the case

    it is an infantile argument, since it addresses constitutionality, but substitutes FEELINGS for legal analysis.

    that’s a sad attempt at debate

  45. whit,

    Where’s the strawman in his post? Such SWAT mishaps have actually happened. Just because they’re accidents doesn’t mean they don’t count.

  46. The strawman exists because whit’s argument is not that no-knock raids are positive. His argument is that they are constitutional. His opinion of the merits of no-knock raids is irrelevant to a discussion of what is currently constitutional.

  47. The exclusionary rule is an important method of recourse, and I am, frankly, of the opinion that evidence obtained in violation of the warrant terms probably constitutes an “unreasonable” search. Seems unreasonable to me to execute a search in violation of the warrant. Obviously, SCOTUS does not agree on this point. Put another way, a cop just walking into your house without letting you know, even with a duly obtained warrant, is pretty damn unreasonable.

    Let’s look at it from another angle, if a cop can violate the knock-and-announce requirement in a warrant and the evidence can still be used at trial why would a cop ever follow the rule?

  48. The Exclusionary Rule, even when in force, has its limits. For instance, what if the person whose rights are violated is only a witness or has possession of evidence of some sort? He can’t invoke the rule because he ain’t getting prosecuted! Still, his home has been invaded and his rights violated. Something with more teeth in it than Section 1983 is needed.

  49. His opinion of the merits of no-knock raids is irrelevant to a discussion of what is currently constitutional.

    Scalia’s own opinion said “The social costs to be weighed against deterrence are considerable here.” Why is it when Timothy mentions a possible social cost it’s a strawman and irrelevant but when the SCOTUS does it it’s the law of the land?

  50. timothy, the facts of the instant case are that the cops did knock and announce, but that their 3-5 second delay wasn’t sufficient for a warrant that did not ahve a specific no-knock provision

    just to clarify

    john rhoads comment was spot on.

    my point about timothy’s strawman comment was that he said that i wouldn’t LIKE a no-knock warrant being executed on my residence

    that is 100% irrelevant

    what i would or wouldn’t like is 100% irrelevant to constitutionality

  51. Pro Lib,

    That is not correct. Any evidence obtained via a search without warrant or probable cause — even if the search is not of the accused’s own property — is subject to the exclusionary rule. Otherwise, the cops could search the premises of the defendant’s relatives, neighbors, and associates with impunity.

  52. crimethink, I meant that the Exclusionary Rule wouldn’t help the victim of the home invasion, not that it wouldn’t help the defendant. Granted, the deterrent effect arguably still exists (cops don’t want to lose evidence against the defendant).

  53. Another thing I would do as a judge is require searches to be videotaped as a condition of the warrant, especially if I gave any no knock warrants.

    I would require the videotape to be given back to me so that I could make a determination as to whether the warrant was indeed carried out in what I considered to be a Constitutionally “reasonable” manner.

    It is sad to watch judges sleeping on the job like they do in the search area.

Please to post comments

Comments are closed.