No Knock, No Problem

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The new Alito Supreme Court won't disallow evidence from a no-knock raid (with a warrant). 5-4 decision in Hudson v. Michigan, with Alito on the no-knock, no-problem side.

CNN report.

The actual decision.

Orin Kerr's guide through the thickets of the opinion and its meaning. He finds some ambiguity:

At least based on my initial read of Hudson v. Michigan, it seems to me that the legal rule announced by the Court's majority opinion could be either of these two rules:

1) Violations of the knock-and-announce rule do not lead to automatic exclusion of evidence obtained, although they may still be relevant to suppression in some contexts because they alter the constitutional reasonableness of the search.

2) Violations of the rule must be enforced throught civil suits, not throught the exclusionary remedy. Violations of the knock-and-announce rule are completely irrelevant when a defendant seeks suppression of the evidence.

Reading over the majority opinion, I see hints of (1) and hints of (2), although it's not clear to me which is the Court's holding. Am I missing something, or does the Court's opinion leave that important question unclear?

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  1. I hereby declare a new comedy subgenre: the no-knock joke.

  2. NO-KNOCK

    Who’s th……

    ON THE FLOOR, MUTHUHFUCKER! SHUT THE FUCK UP!!!
    I SAID ON THE FLOOR NOW!
    WHERE ARE THE DRUGS?

    What dru….

    I SAID SHUT THE FUCK UP!

  3. At the very least, the cops should be forced to yell as they barge in:

    NO ONE EXPECTS THE SPANISH INQUISITION!!

  4. “Violations of the rule must be enforced throught civil suits”

    Great. Not only do the cops escape all personal responsibility, but we the taxpayers get to bend over repeatedly so that they can live out their Rambo fantasies.

  5. Gee, good thing we got these “small government conservatives” on the bench.

  6. “…but we the taxpayers get to bend over repeatedly so that they can live out their Rambo fantasies.”

    Ironically, Rambo was fighting against the cops. But yeah, the SWAT mentality is something to behold. They seem to think they’re green berets or something.

  7. Really, folks, we should take a chill pill. All this will result in is a few more busted doors and a handful of shot pets. Max.

  8. NO-KNOCK

    BANG!

    “What the hell did you shoot my dog for?!?!?”

    “Is this 158 Sundry Lane?”

    “No, that’s across the street!”

  9. NO-KNOCK

    yap yap
    BANG!

    Uh, I think the house we want is next door.

    Oh, OK. I can’t stand them rat-dogs, anyways.

  10. I can’t believe that they sided with someone who admitted to breaking the rules.

    I guess they thought it was a case of cruel and unusual punishment.

    And they are conservative??

  11. Okay, I sorta understand blasting Rotts and Pit Bulls. But once these cops start shooting parakeets and hamsters, then that’s when I’ll get upset.

  12. What ever happened to “we are a nation of laws”

  13. This was clearly expected.

    This concerns me though:

    “Contrary to Hudson?s argument that without suppression there will be no deterrence, many forms of police mis-conduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline.”

    I can see no evidence that this statement is true. And I’m wondering if any such evidence was even presented to the court.

    As has been well documented here and elsewhere, there is no evidence that Police departments have felt constrained in any way, just the opposite.

    The actions of SCOTUS starting back with Ronnies and elder George’s encouragement of random road blocks, to last seasons including drug-sniffing dogs in “non-searches” for speeding less then 10 miles over the limit on the highway (pushed by a Democrat Attorney Gen in Illinois, both the left and right are guilty in this), have let law enforcement know that that it is experiment time. Push…and we will probably approve it.

    So the above quoted statement seems a bald face lie.

  14. DAVE’S NOT HERE.

  15. Brian, I just saw that Radley Balko was cited in Breyer’s dissent (page 10 of the dissent, I think). That’s pretty cool. It was his “No SWAT” article for Cato. Believe it or not, I got the link straight from the dissent–I guess it really is the 21st Century!

    That’s cool. I can’t wait until I’m cited in a Supreme Court opinion for one of my postings here 🙂

  16. Civil suits? I thought that municipalities and their minions were immune to any attempt to hold them responsible for their incompet- erp, actions.

    Good thing I have nothing to hide- YOU KNOW WHY

    I’m going to have to get my copy of the Constitution out and read it again; I never noticed the expiration date.

  17. What ever happened to “we are a nation of laws”

    That went out around the same time police started calling people “civilians”.

  18. Someone else noted several months ago that most citizens will take it up the ass if they are told that a cop wants to do something. Here in Las Vegas, a cop was recently shot and killed by a local rapper who couldn’t handle his high and there were memorials and half-mast flags for a fucking month. People like a police state because they think it makes them safer, and safety is the first or second concern of most people, along with food, water, and air.

  19. Mo,

    “What ever happened to “we are a nation of laws”

  20. Pro Libertate,
    Love the Cheech and Chong reference!

  21. Hey, we win again!

  22. Wait. They had a warrant?

    An announcement prior to search will make the cops less obnoxious?

    I don’t get it.

    “You gotta warrant, I guess you’re gonna come in…”

  23. Thomas voted w/ the majority? That’s disappointing.

  24. Oh, and get rid of ALL sovereign immunity.

  25. So what’s the government supposed to do when they just know you’re guilty of something?

  26. It’s time to invest in door & frame manufacturers.

  27. Ken, my problem is with the government wasting so much time on this knocking-not knocking issue. Why not simply blow the friggin’ house away? If someone later objects to the action, the state can always fall back on its eminent domain powers (“We blew up that house for the public good”). In any event, no “knocking” is required.

    If you haven’t done anything wrong, then you won’t mind blowing up for your fellow man. Think of the children.

  28. Ah, jcavar, a “No Open” policy. If challenged, you can always say it was for hurricane protection. Sure, why not in Kansas?

  29. “So what’s the government supposed to do when they just know you’re guilty of something?”

    Come to your house in the dead of night, strip you naked, put a bag over your head, ty-rap your hands behind your back, and put you on That Plane To Someplace You Never Wanted To Go.

  30. Let’s just go ahead and federally mandate glass walls for houses, condos, hotels, etc. True patriots have nothing to hide.

  31. Knock Knock

    get the fuck out of my house.

    Moral of the story:

    Never try a knock knock joke on a libertarian

  32. So, if armed guys come barging into a house, and said armed fellows get blown away by the legally armed owner, that’s okay, right? I mean, if they don’t knock and don’t show I.D., you’d have reason to believe that such people are posing an imminent danger to you and your family, wouldn’t you?

  33. Pro Libertate

    There was a case in Titusville, 1990 or so, where a homeowner shot a cop who had burst into his house on a no-knock raid. A neighbor he had been feuding with had falsely accused him of dealing.

    The cops found a vial of some prescription painkillers the guy had for a construction injury and one joint in the teenage son’s room.

    People who helped to raise money for his defense were harrassed by cops from every agency in Brevard County.

    The jury aquitted him. Others have not been so lucky, of course.

  34. So, if armed guys come barging into a house, and said armed fellows get blown away by the legally armed owner, that’s okay, right? I mean, if they don’t knock and don’t show I.D., you’d have reason to believe that such people are posing an imminent danger to you and your family, wouldn’t you?

    Is the legally armed owner black or white? Did they “find” a smoked marijuana roach in an ashtray at some point? I think these types of details are quite integral to your little hypothetical.

  35. Here’s the whole problem–even a “criminal” who has legal possession of a firearm (say a criminal who hasn’t been caught, yet), has a right to defend himself in a situation like that. No-knock means that there’s no point where a person gets notified that hey, the police are here! Shooting people that you know are cops is a problem, I’ll readily grant. Shooting people who are just armed guys breaking in is another issue altogether.

    Though I do wonder how well anyone labeled a “cop killer” would do in court, too.

  36. Though I do wonder how well anyone labeled a “cop killer” would do in court, too.

    You must not be familiar with the Cory Maye case.

  37. Though I do wonder how well anyone labeled a “cop killer” would do in court, too.

    My 04:41 PM post described how at least one case went down. Of course, as noted, every cop in the county harrassed the guy’s friends for months afterwards for the crime of defending a “cop-killer”.

    You must not be familiar with the Cory Maye case.

    The Cory Maye case is a travesty and indicares to me that we are descending into a polce state. And a highly militarized one at that.

  38. MP, MP, MP. Now I wouldn’t be much of a Hit & Run regular if I hadn’t run across the Cory Maye case by now, right? Yeah, that’s on point, and it’s the acme of injustice.

    Still, I haven’t read everything Radley’s been writing about the case or on the no-knock home invasions in general. Is he (or anyone else) doing any research on what happens to people who shoot–unknowingly, of course–cops who just bust into their homes?

    I’m sympathetic to what cops have to deal with, but this is the whole point of a free society and the Fourth Amendment (and, of course, the Second Amendment) in particular–the right to be safe and secure in your own home.

  39. Supreme Court decisions, or as they are better known, 4th Amendment Madlibs time!

    Amendment IV

    The right of the [noun] to be [adjective] in their persons, houses, papers, and [noun plural], against [adjective] searches and seizures, shall not be [past participle verb], and no warrants shall issue, but upon [abstract noun], supported by [noun] or affirmation, and particularly describing the [noun]to be [past participle], and the [noun plural] or [noun plural] to be [past participle].

  40. Supreme Court decisions, or as they are better known, 4th Amendment Madlibs time!

    Amendment IV

    The right of the [noun] to be [adjective] in their persons, houses, papers, and [noun plural], against [adjective] searches and seizures, shall not be [past participle verb], and no warrants shall issue, but upon [abstract noun], supported by [noun] or affirmation, and particularly describing the [noun]to be [past participle], and the [noun plural] or [noun plural] to be [past participle].

  41. So, hmm…How practical are outward-blowing fragmentation mines for exterior doors?

  42. It sure seems like a technicality to me. The police announced themselves then waited 3 to 5 seconds to enter. Would a knock really have changed anything?
    I agree with the decision.

  43. It’s time to invest in door & frame manufacturers.

    And puppy mills! Most of those shot dogs will need to be replaced.

  44. Pro Libertate,

    From my research of close to 300 botched raids, people who unknowingly (or at least there’s reason to believe they did so unknowingly) shoot back at police have about a 50-50 chance of doing jail time.

    I have yet to come across a case where a police officer was convicted of even a misdemeanor for shooting and/or killing an innocent person. And I know of about three dozen cases in wich a botched raid resulted in the death of an innocent.

  45. Orin is not exactly your biggest civil libertarian.

  46. So, I’m no expert, but aren’t no-knock, raids more dangerous for the cops? I mean, let’s say you wake up in the middle of the night and hear intruders, and you don’t realize they’re cops. If you have a gun you’ll probably try to use it.

    I would think that a police chief who cared about the well-being of his officers would insist that the cops make every possible effort to alert the homeowner before entering. Including that thing they do in the movies with the bullhorns. “Attention Mister so-and-so. This is the police. Please come out with your hands up or we will have no choice but to enter with force.”

  47. If you want a vision of the future, imagine a boot stamping on a human face – forever.

  48. So, I’m no expert, but aren’t no-knock, raids more dangerous for the cops? I mean, let’s say you wake up in the middle of the night and hear intruders, and you don’t realize they’re cops. If you have a gun you’ll probably try to use it.
    Comment by: thoreau at June 15, 2006 07:35 PM

    That’s why they use overwhelming force, overwhelming numbers, overwhelming firepower, overwhelming speed, and the element of surprise. The “shock-and-awe” is necessary to protect themselves from the dangerous situation that, in many cases, they created.

    If innocent civilians, or even not-so-innocent ones, are endangered in the process, oh well.

  49. So, I’m no expert, but aren’t no-knock, raids more dangerous for the cops? I mean, let’s say you wake up in the middle of the night and hear intruders, and you don’t realize they’re cops. If you have a gun you’ll probably try to use it.

    The police are betting on two things here. First and foremost that you don’t have a gun, or at least don’t have quick access to one. Second, the most common “no-knock” raid is usually for a drug search / arrest warrant. If they announce beforehand then the suspect “may” have an opportunity to flush evidence down the toilet and if they just pick the guy off the street then they don’t have proof of drugs being in the house, hence no Asset Forefeiture.

    So, yes it would be safer, but not as profitable. Like most things in life, enough money mitigates any risk.

  50. While we are on this subject, I am not sure how it works here in Alaska, but when I lived in Florida there was no such thing as refusing to have your vehicle searched.
    If a police officer stopped you (regardless of offence, primary restraint being a common one) and asked if he could search your vehicle you always had the right to say “No, you may not search my car.”
    Of course, this then qualifies as “suspicious behavior” and “probable cause” which gave them free reign to search your vehicle. So much for the 4th amendment.

  51. this is SUPPOSED to be about constitutional law

    like it or not, the constitution (federal) does not mention a “knock” requirement for warrants.

    it mentions a reasonableness requirement. so, despite all the “help i’m being repressed by the police state” hysteria

    because of past scotus decisions many have become accustomed to some kind of sacrosanct “knock” rule in the constitution

    sorry, it isn’t there

    the case *is* arguable

    no matter how libertarian one is – if one is a strict constructionist, one has to consider this and not just kneejerk into believing that any scotus decision that gives police additional authority and/or has applicability to the exclusionary rule is automatically a police state/anti-constitutional thang

    and just because a behavior may be stupid, does not make it unconstitutional

  52. this is SUPPOSED to be about constitutional law

    like it or not, the constitution (federal) does not mention a “knock” requirement for warrants.

    it mentions a reasonableness requirement. so, despite all the “help i’m being repressed by the police state” hysteria

    because of past scotus decisions many have become accustomed to some kind of sacrosanct “knock” rule in the constitution

    sorry, it isn’t there

    the case *is* arguable

    no matter how libertarian one is – if one is a strict constructionist, one has to consider this and not just kneejerk into believing that any scotus decision that gives police additional authority and/or has applicability to the exclusionary rule is automatically a police state/anti-constitutional thang

    and just because a behavior may be stupid, does not make it unconstitutional

  53. If a police officer stopped you…right to say “No, you may not search my car.”
    Of course, this then qualifies as “suspicious behavior” and “probable cause” which gave them free reign to search your vehicle. So much for the 4th amendment.

    Or the police say that they found something illegal when they really didn’t (“thinking” a cigarette is a joint for example).

  54. zener, they have field tests that can distinguish between a joint and a tobacco cig. not to mention the smell is different … or so i’ve heard (rolls eyes)

  55. Whit-

    Try again, sparky. Our laws are based on English Common Law and a little thing called the “Castle Doctrine” (yeah, yeah, I know, it’s all academic after Kelo anyway) where a citizen (That’s right, that’s what we are, not civilians) has historically been granted opportunity to comply with the law. This new method of ‘takedown’ is simply how we are slowly being treated as “people who haven’t been caught doing anything wrong yet” rather than citizens WITH RIGHTS who are “innocent until proven guilty”. But you can engage in your little strict-constructionist readings all you want and ignore the history behind our Constitution.

  56. If they announce beforehand then the suspect “may” have an opportunity to flush evidence down the toilet and if they just pick the guy off the street then they don’t have proof of drugs being in the house, hence no Asset Forefeiture.

    I forgot about that aspect. Governmental profiteering is probably the biggest reason, in their heart of hearts, for keeping the WoD going.

  57. i am well aware of the common law background. the point is this

    IF agents execute a warant without knock and announce *and* a noknock entry is not specifically pre-authorized in the warrant, is the contraband that is subsequently discovered excluded?

    i think that is a debatable point. it is not clearcut at all, and after reading the decision i think it has merit

    i think the war on drugs is (mostly) retarded. but it doesn’t follow that we can twist the constitution to invalidate aspects of it that are constitutional

    as a counterpoint, i think the decision about federal enforcement of marijuana laws against those acting pursuant to state medical mj legal prescriptions WAS a bad decision constitutionally. that is clearly NOT a commerce clause issue, and thus is unconstitional.

    in this case, i think the decision has merit, although i don’;t think it’s a slamdunk either way

  58. The Constitution does not mention an “exclusionary rule” either. That is an invention of the SCOTUS (of relatively recent vintage: 1914), it is not a direct mandate of the 4th amendment’s text. The hand wringing by some here about a “expiration date” on the Constitution is over the top hysteria.The USA operated for well over a hundred years without evidence obtained from warrentless searches being prevented from being used at trial.

    What was decided was whether the full force of the exclusionary rule should apply to properly warranted searches where the police technically exceeded the strict permissions of the warrant, not whether “no-knock” searches are constitutional (apparently they are) or a good idea (which is not the Court’s job to decide anyway).

  59. A little late but…

    zener, they have field tests that can distinguish between a joint and a tobacco cig. not to mention the smell is different … or so i’ve heard (rolls eyes)

    What happend to me on more than one occasion:

    COP: What’s that?

    ME: What?

    COP: That!

    ME: That is a cigarette.

    COP: That looks like a dope to me. Get out of the car so I can check it out.

    ME: I really have to get going. I don’t want let you search my car.

    COP: You have no choice, I have probable cause. Now get out.

    Later on after the cop searches the car

    COP: If you weren’t such an asshole I woulda let ya go. Next time stop being such a tough guy.

    Apparently, exercising your rights is being an asshole.

  60. Oh well… doorbells and knockers are for pussies, anyway.

  61. WHEN THERE IS NO JUSTICE, THERE IS VIOLENCE! LONG LIVE THE REPUBLIC! DEATH TO ALL TYRANTS! THE BEST UN SOLDIER OR FORGIEN SOILDER IN AMERICA IS A “DEAD ONE”………….REVOULTION NOW!!

  62. I guess the lesson is that we can only expect 3 to 5 seconds before the door comes crashing in. It’s against my usual habits, but I’ll going to leave one in the chamber from here on in.

  63. Radley, thanks for the information. This increasing abuse of power (thanks largely to the War on Drugs, of course), along with the decreasing accountability for such abuses is a terrifying trend. There are times I want to throw away my corporate lawyer hat and go into Section 1983 litigation. Of course losing all of the time might depress me 🙂

    Something’s got to give.

  64. Anyone wanna bet that Terry’s IP address resolves to a url that ends in “.gov?”

  65. Wow! So many comments.

    To rain on this parade, isn’t this whole discussion about the Fourth Amendment academic?

    With a president who sets the example of not obeying the law anyway, an activist/ fascist/Christianist Supreme Court, a Republican majority in the House and Senate, a Democratic opposition that’s scared shitless to take the moral high ground on any issue, and a metaphorical war on terror that provides the excuse for every civil liberties abuse you can name, I’m afraid our constitutional rights are on a collision course with oblivion.

  66. wow, richard. you managed to include more absurd tangential rhetoric, false argument, question begging, and trolling in one paragraph than i thought possible

    yes, i know… evul bushco has trampled all our civil rights.

    spare me

  67. What if they have the wrong house? What if I am sleeping naked? What if I think they are criminals and shoot?

    A really funny article on the no-knock policy is at:
    No-knock policy

    I laughed my A*S off

  68. What if I think they are criminals and shoot?

    Then you’ll have to take your chance with a jury. Radley Balko above give you a 50-50 chance.

    The case I referred to above happened just after a number of highly publicized errant raids where cops shot occupants of wrongly raided homes, as well as several home invasions where intruders gained admission claiming to be cops and proceeded to rob the residents.

    In today’s climate I think the chances of the guy involved in the case I mentioned would be not nearly as good as they were then.

  69. When a cop walks in your house and you have your back turned to them and you turn around to see who just walked in your home and they punch you in the nose and say get on the f***ing floor, does that count as an announcement that they are raiding your home?

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