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June 16, 2006
Knock, Knock!

The Supreme Court ruled that evidence collected on a valid search warrant can be admitted in court, even if the officers did not knock on the door to announce themselves at the time of the search. The ruling narrows the exclusionary rule which normally would render invalid any evidence arising from a search with any defect, a limit that will have civil libertarians seeing red:

Evidence found by police officers who enter a home to execute a search warrant without first following the requirement to "knock and announce" can be used at trial despite that constitutional violation, the Supreme Court ruled on Thursday.

The 5-to-4 decision left uncertain the value of the "knock-and-announce" rule, which dates to 13th-century England as protection against illegal entry by the police into private homes.

Justice Antonin Scalia, in the majority opinion, said that people subject to an improper police entry remained free to go to court and bring a civil rights suit against the police.

But Justice Stephen G. Breyer, writing for the dissenters, said the ruling "weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection." He said the majority's reasoning boiled down to: "The requirement is fine, indeed, a serious matter, just don't enforce it."

The decision followed a reargument less than a month ago, with the newest justice, Samuel A. Alito Jr., evidently casting the decisive vote. Justice Breyer's dissenting opinion was clearly drafted to speak for a majority that was lost when Justice Sandra Day O'Connor left the court shortly after the first argument in January.

Breyer gets this wrong, as did previous court decisions that gave a free pass to defendants regardless of the basic legality of the search itself. For decades, the court has forgotten that every criminal case involves two parties: the defendant and the People. Justice means treating each party fairly and attempting to reach the truth. Instead, the exclusionary rule penalizes the People and ignores the truth of the case.

In the case of a search executed with a valid warrant, the issue of knocking on the door does not change the quality of the evidence found once the search gets executed. Drug stashes do not change their intrinsic nature based on whether the knuckles of a police officer touch the door. Prior to Hudson, that evidence would have been discarded and the trial would have served as a cover-up for the truth.

The exclusionary rule has its applications, but it should apply where the failure to follow tghe rules changes the nature of the evidence. To use an extreme example, if a confession comes from torture, that changes the nature of the evidence and should be excluded. If the police search a residence without permission or a warrant, then any evidence collected must be excluded, even if one could argue that a warrant could have been easily obtained. A search with no permission or warrant changes the nature of the search itself, as abuse is inherent in such a search.

The failure to knock should carry some penalty, but it shouldn't get applied to the benefit of the criminal; it should get applied to the detriment of the officer who failed to knock. Penalizing the People and returning a criminal to the streets has no direct consequences to the person by whose failure the defendant benefits, and it transforms criminal trials from a search for the truth to a laughable series of procedural hurdles, each of which contain a Get Out Of Jail Free card. The defense should have the right to bring up the failure of the police officer to knock during the search and let the jury consider the circumstances while considering the evidence it provided.

SCOTUS got this one right. In order to come to true justice, the jury needs to see as much of the truth as possible. Penalizing the People by having the judiciary create such hurdles hides the truth rather than expose it. The penalty for violating the knock rule should be applied to the individual responsible for the failure. And if Congress and the states want to reinstate the exclusionary rule in this instance, they have the ability to pass legislation to mandate it rather than have SCOTUS create the hurdles themselves.

UPDATE: Daniel Freedman at It Shines For All notes that the New York Times doesn't mention the valid search warrant in its editorial about the decision:

The case arose out of the search of Booker T. Hudson's home in Detroit in 1998. The police announced themselves but did not knock, and after waiting a few seconds, entered his home and seized drugs and a gun. There is no dispute that the search violated the knock-and-announce rule.

The question in the case was what to do about it. Mr. Hudson wanted the evidence excluded at his trial. That is precisely what should have happened. Since 1914, the Supreme Court has held that, except in rare circumstances, evidence seized in violation of the Constitution cannot be used. The exclusionary rule has sometimes been criticized for allowing criminals to go free just because of police error. But as the court itself recognized in that 1914 case, if this type of evidence were admissible, the Fourth Amendment "might as well be stricken."

The court ruled yesterday that the evidence could be used against Mr. Hudson. Justice Antonin Scalia, writing for the majority, argued that even if police officers did not have to fear losing a case if they disobeyed the knock-and-announce rule, the subjects of improper searches could still bring civil lawsuits to challenge them. But as the dissenters rightly pointed out, there is little chance that such suits would keep the police in line. Justice Scalia was also far too dismissive of the important privacy rights at stake, which he essentially reduced to "the right not to be intruded upon in one's nightclothes." Justice Stephen Breyer noted in dissent that even a century ago the court recognized that when the police barge into a house unannounced, it is an assault on "the sanctity of a man's home and the privacies of life."

That's ludicrous. It would be true if the police hadn't obtained a valid search warrant, but they did have it and the search would have commenced regardless of whether the police knocked. This is precisely the kind of silly technicality that undermines confidence in our judicial system. Penalize the man who failed to knock, but that missing knock should not shield the jury from the evidence collected from a valid search warrant. A search is always an "assault on the sanctity of a man's home and the privacies of life," but that's why we have judicial approval on search warrants, and a knock on the door does nothing to alleviate the "assault".

The Times editorial board has this annoying habit of simply ignoring facts that don't fit their mindset, and this is yet another example.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at June 16, 2006 7:25 AM

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» Curious Omission from It Shines For All
One crucial word was missing from today's New York Times editorial on yesterday's Supreme Court decision on "no knock raids." The Times writes: The Supreme Court yesterday substantially diminished Americans' right to privacy in their own homes. The rul... [Read More]

Tracked on June 16, 2006 8:15 AM


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