Civil Liberties

Hard Knocks With No-Knock

Why is it unreasonable to announce and wait?

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For regular viewers of COPS, the real surprise in last week's U.S. Supreme Court decision in Hudson v. Michigan, which gives police officers greater leeway to conduct "no-knock" raids on residences, must have been that police failure to knock was an issue at all. Anybody who's seen the paramilitary searches and seizures that highlight the long-running police reality show (usually with a deadpan subtitle describing the action: "6:00 a.m., warrant served") might presume that police officers are never expected to honor the domestic peace of the people whose homes they're invading. The front door is bashed in with a battering ram, a squad of armed and armored officers enters the building, and only then do the shouting and announcing of police authority begin.

Last week, a 5-4 majority led by Justice Antonin Scalia ruled that violation of the "knock-and announce" rule—a custom by which police serving a warrant knock on the suspect's door and wait some decent period of time (which in a previous case had been defined as 15 to 20 seconds)—does not require suppression of evidence found in a search. In the case, police searching for drugs and firearms at the home of suspect Booker T. Hudson announced themselves outside Hudson's home, did not knock, and failed to wait more than a few seconds before breaking down his door. They found drugs and a gun as described in the warrant, and the issue at hand was whether the failure to knock and wait was enough to invoke the "exclusionary rule," barring evidence obtained in an unconstitutional fashion.

Scalia argues, and supporters of his decision agree, that there is no constitutional issue involved in the no-knock entry. In a glib editorial preemptively mocking "civil libertarians, especially those on the left," the New York Sun notes that the knock and announce rule is not written into the Fourth Amendment, or any other part of the U.S. Constitution. Instead, it is an English common-law practice dating back to the Middle Ages. (It has been part of federal statutory law since 1917.) The George Washington University law professor Orin Kerr finds no conflict between Scalia's alleged "originalism" and his Hudson decision.

A survey of Scalia's legal record supports the suspicion that the judge is essentially hostile to the exclusionary rule, and may wish to eliminate it in all cases. Thus, the most interesting piece of writing on the Hudson case is neither Scalia's decision nor Justice Stephen Breyer's dissent, but the separate concurring decision by Justice Anthony Kennedy, which identifies a pattern of knock-and-announce violations as a cause for "grave concern," and supports the exclusionary rule as a remedy for other civil rights violations:

[T]he knock-and-announce requirement protects rights and expectations linked to ancient principles in our constitutional order… The Court's decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law's concern… [T]he 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.

Scalia and Kennedy agree that the exclusionary rule is not a preferred means of assuring the right to privacy. In one flight of fancy, Scalia argues that "increasing evidence that police forces across the United States take the constitutional rights of citizens seriously" and the rise of civil rights litigation make civil court, rather than suppression of evidence, the proper avenue for challenging improper search procedures. Yale University law professor (and former Breyer clerk) Akhil Reed Amar agrees, arguing that the exclusionary rule protects the guilty rather than the innocent.

Does any of this make sense? If you presume that constitutionality is the full measure of your rights as an American citizen and a human being, maybe. But preserving the idea that American citizens are entitled to some dignity is about more than ruling out whatever wasn't specifically mentioned by the founding fathers. The idea that everybody is entitled to the presumption of innocence isn't mentioned anywhere in the Constitution either, but this concept underlies a range of customs and common law practices (most of which are also absent from the text of the Constitution) that have long been recognized as part of individual liberty. Presuming innocence doesn't mean everybody is innocent; it means authorities must err on the side of your rights as an American citizen.

Far be it from me to question Scalia's familiarity with the receiving end of police power, but when I look around, I see increasingly militarized police forces, where even beat cops have traded in spiffy suits and big shoes for jumpsuits and combat boots, and even the city of Sparks, Nevada has its own SWAT team. Scalia is confident that these are not people accustomed to viewing all civilians as potential enemies to be suppressed. But confidence in police training and professionalism is a thin hook on which to hang your right to be secure in your own home. Maybe the natural tendency to abuse power can be reined in by the mere threat of civil suits (most of which will inevitably be filed, as the lawyer C.T. Rossi notes in a colorful attack on the Hudson decision, by people in jail). I'd be more confident with a remedy that has some actual power.

Ironically, part of the impetus for the no-knock raid is the safety of police and civilians. There's a certain logic to that: A quick and efficient raid, in which the power of the police is immediately established and no resistance is possible, would seem like the quickest means of assuring domestic tranquility. But what happens when a citizen with a legally purchased handgun reacts to a home invasion, by people who have not knocked and are less than prompt in identifying themselves as police officers, in the most reasonable manner available—by shooting one of the invaders? The Mississippian Cory Maye is famously sitting on death row for shooting a cop who entered the bedroom of Maye's 18-month-old daughter during a no-knock raid of which Maye was not even the target. But Officer Ron Jones, by all accounts an excellent cop and standup guy, is dead. This case is not directly applicable, but the principle is the same: A violent home invasion increases the likelihood that somebody will get hurt, and the Supreme Court ought to proceed with caution before raising the likelihood of an event like that. We can take a charitable view and assume that Scalia and the high court majority are committed to reducing the amount of violence in America. But the best way to avoid a fight is not to start it.