Antonin Scalia

Why Wait?

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Hudson v. Michigan, the recent decision in which the Supreme Court said evidence from a search in which police failed to follow the "knock and announce" rule is admissible in court, ostensibly hinged on how close the connection between a Fourth Amendment violation and the discovery of evidence must be to trigger the exclusionary rule. The dissenters argued that the failure of police to wait more than a few seconds for the suspect, Booker Hudson, to answer the door rendered the whole search invalid, making the evidence police obtained "fruit of the poisonous tree." Writing for the five-justice majority, Antonin Scalia said the exclusionary rule did not apply in this case because the Fourth Amendment violation was not essential to the discovery of the evidence. Had police waited, say, 15 seconds and given Hudson the opportunity to answer the door, Scalia reasoned, they still would have found Hudson's drugs and gun.

Yet as Scalia also noted, if the police believed that wasn't the case, that waiting 15 seconds would have allowed Hudson to get rid of the evidence, the "knock and announce" rule would not have applied. So the nexus between barging in and finding the evidence does not really matter. Whether or not a knock-and-announce violation is necessary to preserve evidence, the evidence can be admitted–an easy rule for police to remember but not one that is likely to encourage respect for the knock-and-announce requirement.

Tim Cavanaugh commented on Hudson earlier this week.

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  1. “…Antonin Scalia said the exclusionary rule did not apply in this case because the Fourth Amendment violation was not essential to the discovery of the evidence. Had police waited, say, 15 seconds and given Hudson the opportunity to answer the door, Scalia reasoned, they still would have found Hudson’s drugs and gun.”

    Maybe it’s just me being hysterical (again), but that sounds like the “We Knew He Was Guilty of Something” rule.

  2. I wonder if Scalia pondered some of the possible unintended consequences of such a rule.

  3. Come now, come now, lets not be so pessimistic. After all. Scalia is a good conservative, and there is a chance that Bush may get to nominate another SCOTUS member (not likely, but…).

    And we know that conservatives believe in small government, right?

    So this will all work itself out. I think (as Mr. Sullum has pointed out) that we don’t want to align ourselves with the libruls here. I am optimistic now that conservatives control the government, that Alito and Roberts will come to the rescue and help lead us to the promised land of smaller government.

    Isn’t that the reason Libertarians link themselves to conservatives rather than liberals? I mean, imagine the chaos that would occur if we let the liberally ilconsidered “exclusionary rule” stand. There would be chaos and anarchy. Well, I for one am glad that libertarians have helped bring about the present SCOTUS decisions.

    I mean if I didn’t know any better, I would say the libertarians of this magazine are starting to sound like naysaying Dimocrats.

  4. I think many misunderstand the ruling. It applies to penalties for violating the knock rule, it does not change 90 years of Supreme Court rulings that say cops must knock first, only that the exclusionary rule does not apply. Unfortunately I think many in law enforcement believes it’s a green light for no-knock searches beyond what was previously allowed. If there is not penalty for violating the rule, why follow it?

    I can not view it as a conservative ruling. To remove pushiments for the violation of a rule is not conservative in nature. The idea of “don’t do the crime if you can’t do the time” comes to mind. Regardless of whether or the drugs would have been found should be irrelavent. The cops knew they were doing wrong and they should have been aware of the penalties. PAY UP, all of us must pay for our mistakes. They should be no exception. The purpose of penalties is ensure compliance and is that not a conservative value?

    Scalia opinion is based in the concept of cruel and unusual punishment. Applying the exclusionary rule amounts to cruel and unusual punishment for law enforcement. His remedy is to sue in civil court. Sorry, that doesn’t sound very conservative to me.

    If you break the law be prepard to pay the piper, this should apply to all at all times. Cut and dry.

    It can lead to overzealousness that puts officers in danger. What happens when the cops don’t knock, have the wrong address, and get shot by the owner who has no expectation of the police knocking on his door? A man whos intention is to protect his home from intruders goes to prison for life.

    The real issue now will be whether or not the Supreme Court upholds a civil judgement (if one can be won) against a police department for failing to knock. Good luck on that one.

  5. I have an idea. 😉

    If the police by mistake knock down your door, break yur stuff and eardrums with a flash/bang, kill your dog, and put you in the hospital, your homeowner insurance will cover the damages. And the insurance company will have cause to sue the city and recover the loss.

    Sic the big dogs on ’em.

  6. As noted, the question is not whether knock-and-announce is the requirement. The question is what is the proper remedy when that rule is violated. Is it in the public interest to suppress evidence? Or, is the public better served to find another method of disciplining the police.

  7. Isn’t that the reason Libertarians link themselves to conservatives rather than liberals? Libertarians link themselves to conservatives because “liberal” doesn’t focus-group very well. Give it a few years and we’ll be calling ourselves “progressives”. Once you align with the “conservatives” you cease to be a libertarian free-thinker, and you become a, oddly enough, conservative. You are what you identify yourself as.

    Rants aside, everyone who said “is suppression of evidence in the public interest” the answer is unequivocally yes. There is no other way to stop police from military-style raids on innocent people. The rule protects innocent people, and the few guilty people who have evidence suppressed are incidental. Many times, cops have enough evidence without the ill-gotten evidence. The reason that it seems like such an important thing, is that the story never makes the papers when the innocent person has cops bust in and ransack their houses. The lawsuit usually settles with a confidentiality clause. If you think a lawsuit against the city is sufficient to protect our homes, then wow, just wow, visit a courthouse one day. Besides, how long before people start shooting cops who bust in, and then have the cops waste the whole family (why can’t speculation go both ways?)?

  8. Is it in the public interest to suppress evidence? Or, is the public better served to find another method of disciplining the police.
    Let’s see, what other ways of ‘punishing’ the police do we have? There’s always the lawsuit which,when successful, simply gives the public back its own tax money. So, I suppose we will have to rely on internal investigations and reprimands to convince the police of thier wrongdoing, eh?

  9. Let’s see, what other ways of ‘punishing’ the police do we have?

    Reduce police budgets….reduce the number of laws they are responsible for enforcing…

    It all begins at home! Go on, you *know* you want to be the local crank who’s always agitating for reduced government!

  10. “The rule protects innocent people, and the few guilty people who have evidence suppressed are incidental”

    absolutely false. that is neither the intent of the exclusionary rule, nor the benefit. you have no knowledge of constitutional law whatsoever if u can make such a claim

    the exclusionary rule is not DESIGNED to protect innocent people. it is designed to deter intentional police misconduct by rendering the fruits of that conduct inadmissible as direct evidence in a criminal trial (it is often still admissable in civil trials, in sentencing hearings, and as rebuttal evidence).

    several posters here have it correct, in that this decision does not “ok” police to not knock, announce (and wait) when not otherwise authorized via a no-knock warrant, the decision says that the exclusionary rule does not AUTOMATICALLY trigger in such a case.

    it is a distinction WITH a difference.

    also, another issue here is the inevitable discovery doctrine. my own state (as is its right under its own constitution) does not generally recognize the inevitable discovery doctrine, but federal precedent does.

    simply put, the inevitable discovery doctrine will allow evidence that was obtained by a bogus (note super hitech legal terminology 🙂 …) search *if* it would have inevitably been discovered anyways with proper procedures or given time… this is usually applicable unless their is a complete lack of good faith (iow, an intentional attempt by police to subvert the process and ignore what they know they should do).

    the classic idd case was where a suspect led police to evidence (i believe it was the dead corpse iirc) that was covered by some snow. however, subsequent motions determined that the police interrogation was bogus (there is that word again) due to lack of miranda or whatever, thus the suspect leading them to the body was inadmissable. however, the body was admitted into evidence (talk about corpus delicti) because under IDD it was revealed that it would have been revealed due to snow melting, in the next few days anyways, thus it was *inevitably* going to be discovered. the suspect’s admissions of course were still inadmissable (his admitting that he left it there, etc.), but not the body

    IDD is reasonable, and well accepted in constitutonal law.

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