Antonin Scalia

Scalia Gets to the Heart of the Castle Doctrine

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Reacting to the raid on Kathryn Johnston's home , a University of San Diego law student recalls a question he posed to Antonin Scalia when the Supreme Court justice visited the school for a lecture:

Me to Justice Scalia: Isn't the Court's holding in Hudson v. Michigan going to mean that cops will feel free to barge in without knocking and announcing their authority whenever it suits their interests?

Justice Scalia to me: Look, the Knock-and-Announce Rule is about not catching people at home in their underwear.

And there you have it. The centuries-old Castle Doctrine boils down to no more than silly modesty—and a modesty Justice Scalia finds worthy of ridicule. The comment echoes a line Scalia wrote in his opinion in Hudson about the only consequence of doing away with knock and announce would be for police to occasionally catch a suspect in his "nightclothes."

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  1. Nightclothes…

    It’s a good thing our Supreme Court justices are so in touch with modern society and its “increased professionalism.”

  2. You know, I might be fine letting go of the no knock raid doctrine, at least philosophically, if warrants for any non-violent victimless crime were determined to be unconstitutional.

  3. In otherworlds, having a shit load of drugs in your house might be illegal, but it would be unconstitutional to enter your house and arrest you for it.

  4. I can’t wait for this case to get to the Supreme Court:

    http://tinyurl.com/ya2eho

    Scalia gonna get hoist by his own petard.

    Go Kozinski, you rock! If Hillary puts him on SCOTUS I guess he will have to recuse himself šŸ™

  5. The inherent conflict between the Castle Doctrine and the “knock and announce” rule shows how fundamentally unconstitutional the War on Drugs is.

  6. Oops…the inherent conflict is between the Castle Doctrine and the “no knock” rule.

  7. The inherent conflict between the Castle Doctrine and the “knock and announce” rule shows how fundamentally unconstitutional the War on Drugs is.

    Yes, but it was a fundamentally different time then, they didn’t have a war on drug that needed to be fought.

  8. Then being when they wrote the constitutition. Our safefty must preced some outdated anacronistic piece of paper.

  9. Good point, Jane. I never thought of it like that. Thanks for showing me the light!

  10. I guess the cops in the recent botched Atlanta raid were caught in their metaphorical underwear.

  11. Jane, you ignorant slut.

  12. Uh….isn’t this the same Scalia that gave us Kyllo?

  13. No doubt the only reason for Scalia’s ruling in Kylo was that he didn’t want people to be thermally imaged in their underwear.

  14. No doubt the only reason for Scalia’s ruling in Kylo was that he didn’t want people to be thermally imaged in their underwear.

    Either that or maybe Scalia feared that thermal imaging might be used to prosecute some serious, non-drug-related crimes that he did not want prosecuted.

  15. Jane, I keep forgetting that marijuanna, cocaine and opiates weren’t around in 1791 so the drug war wasn’t needed then. Oh, wait…

  16. Sounds to me like Scalia is talking about the tent doctrine.

  17. “””Our safefty must preced some outdated anacronistic piece of paper.”””

    Maybe your more suited for China. I guess you don’t like the ability to freely speak or worship the religion of your choice.

    I guess your willing to give up your right to vote since that “anacronistic piece of paper” is what allows you to do so.

  18. Maybe your more suited for China…

    I guess your willing to give up your right…

    No, not like that. But when we are talking about drugs we have got to use a “living document”.

    Jane, I keep forgetting that marijuanna, cocaine and opiates weren’t around in 1791 so the drug war wasn’t needed then. Oh, wait…

    No, but they didn’t know they were immorral back then, not until the temperence movemnt in the 19yh century, so they were OK then. Now we know they are dangerous and immoral.

  19. Lamar wins the thread and you don’t even know it.

  20. I am an opponent of no-knock warrants in almost all circumstances (and if we eliminated the WoD, we could eliminate almost all no-knock warrants) but in the above comments, snark is substituting for thoughtfulness.

    Hudson was not about whether no-knock is acceptable. Criticize the court for allowing no-knock entry, if you want. Hudson was not about whether people can defend themselves if the police burst in without announcing themselves.

    Hudson was about whether, when police do have a warrant, the constitution requires that seized evidence be suppressed because the police entered 5 or 10 seconds too early after announcing themselves.

  21. “Hudson was not about whether no-knock is acceptable.”

    Given that the Supreme Court has repeatedly held that there is no other effective way to enforce the 4th Amendment, I have to disagree with the above quote. Cases aren’t decided in a vacuum.

  22. Trickyvic, I’d like to introduce a friend of mine. This friend evidently also likes to hang out with Jane.

    Sarcasm, Vic.

    Vic, Sarcasm.

  23. Hi Vic! Nice to meetcha!

  24. The *Hudson* case was about the exclusionary rule, which the Supremes imposed on the states around 1961.

    I accept that the Supremes have every reason to impose the exclusionary rule on the federal courts (so I’m dubious about allowing a Hudson exception for the feds), but imposing it on the state courts raises serious federalism concerns. The feds don’t have a general authority to make state procedures more just or fair, just the authority to hold states to minimal constitutioal standards. Is the exclusionary rule one of those standards? It’s not self-evident.

    If the states want to rely solely on damage actions to deter unreasonable police searches, that may not be the best deterrent, but do the states, as a matter of *federal* law, have to choose the *best* way to deter police misbehavior?

    In the *Hudson* case, the Supremes accepted the exclusionary rule in general, but allowed an exception. If there’s a search warrant allowing the police to get the necessary evidence, but they execute the warrant unconstitutionally (by a no-knock raid), should the state courts, as a matter of *federal* law, be forced to keep the resulting evidence from the jury? If it’s a drug case the consequences may not be that bad, since drug laws are dubious anyway, but what if the evidence is a bloodstained knife with the victim’s blood on it? If the warrant would have allowed cops to get the knife, should the knife be kept from the jury, and a murderer potentially set free, because the warrant was improperly executed?

  25. Lamar, where’s the nexus between the illegal entry and the suppression of the evidence based on a legal search? Why is suppression the only viable remedy?

  26. If the states want to rely solely on damage actions to deter unreasonable police searches, that may not be the best deterrent, but do the states, as a matter of *federal* law, have to choose the *best* way to deter police misbehavior?

    Are you saying the Bill Of rights does not apply against state governments? I thought we had that dispute back in the Ed Meese days and the states rights team lost. Are the anti-incorporation forces regrouping now that Roberts and Alioto are on board?

  27. The Supremes have applied the following Bill of Rights provisions against the states: First Amendment, Fourth Amendment, most of the Fifth Amendment, Sixth Amendment, and Eighth Amendment.

    So far, they have *not* applied the rest of the Bill of Rights to the states. That means the states haven’t yet been formally subjected to the Second and Third Amendments, the Seventh, Ninth and Tenth Amendments, and the grand-jury clause of the Fifth Amendment.

    Why do some of these rights apply to the states and others don’t? It simply depends on how the Justices feel at the time. For instance, since guns are icky, therefore the Second Amendment doesn’t apply to the states, but because school prayer is even ickier than guns, the Establishment Clause of the First Amendment *does* apply to the states.

    Is everything clear?

  28. Chris:

    Nobody likes to see crooks go free based on technicalities. Why don’t you suggest a viable enforcement mechanism? Law suits and disciplinary proceedings are a joke. If you can come up with a viable alternative, you’d be the first.

  29. Nobody likes to see crooks go free based on technicalities. Why don’t you suggest a viable enforcement mechanism? Law suits and disciplinary proceedings are a joke. If you can come up with a viable alternative, you’d be the first.

    ex-Reasonwriter Tim “Cavs” Cavanaugh suggested that the exclusionary rule should only apply so long as the people who behaved badly are punished, and that actual, serious punishment of the bad cop should be sufficient to get the evidence into the criminal trial.

    I hope I am remembering / communicating Tim’s proposal clearly. I liked his proposal then and still like it now.

  30. “are punished” should have been –have not been punished–

  31. “the exclusionary rule should only apply so long as the people who behaved badly are punished, and that actual, serious punishment of the bad cop should be sufficient.”

    Cops punishing other cops? Doesn’t happen. I’ve seen too many Sheriff’s investigations of police officers and internal affairs cover ups to know that a mustache doesn’t screw another mustache—ever.

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