Comments on: Hudson v Michigan

By: El Gringo Loco

El Gringo Loco — Tue, 20 Jun 2006 14:08:24 +0000

Dealing with this through legislation doesn’t necessarily mean assigning criminal penalties and prosecuting cops. Rules of evidence and criminal procedure can also be established by statute, so would could just bring knock-and-announce back that way.

Of course, the difficulties of this are (1) the difficulties that attend any attempt to persuade Congress to pass legislation that enhances the rights of defendants and suspects; (2) getting legislation through 50 state legislatures. But I absolutely agree with everyone who has said or implied that rolling back Supreme Court decisions through legislation is something liberals are going to have to get used to. There’s no other choice now.

By: Fortruth

Fortruth — Sun, 18 Jun 2006 14:39:34 +0000

Am I missing something? I thought the case revolved around the fact that two Michigan Supreme Court cases “…created an exception to the suppression of evidence when the evidence in question would have inevitably been found.” The majority actually upheld precedent. To do otherwise would have been activism.

By: Sebastian Holsclaw

Sebastian Holsclaw — Sat, 17 Jun 2006 00:33:20 +0000

“It does seem in some exceptional cases a no-knock raid would be a good idea. I wonder if we could implement a legal regime where under extraordinary circumstances police could acquire specific no knock warrants- is this specified at all currently or can any warrant be carried out as a no-knock raid?”

This is why I think the case should not be looked at as “a no-knock raid automatically invokes the exclusionary rule”.

I read Balko daily so I’m well aware of the prevalence of ridiculously stupid no-knock and SWAT style raids.

By: mpowell

mpowell — Fri, 16 Jun 2006 21:16:02 +0000

Well in response to Sebastian in #15: if you accept the principle behind the exclusionary principle, then you get to ask, are no knock raids reasonable searches? My point is that if you accept the principle of the exclusionary principle it is no longer J/A to ask this question. My understanding based on your post is that we would agree here.

To answer that question, you have to look to the current practice of no-knock raids in the US. And Balko is the best place to start with that. My opinion is that the current practice is in no way reasonable. People may disagree, but I do wonder how- its one of those issues I have a hard time seeing the other side of. There are simply too many accidents and given human nature, too many overzealous officers conducting them. In particular, Scalia’s assessment of the situation seems disingenuous to me.

It does seem in some exceptional cases a no-knock raid would be a good idea. I wonder if we could implement a legal regime where under extraordinary circumstances police could acquire specific no knock warrants- is this specified at all currently or can any warrant be carried out as a no-knock raid?

By: Brett Bellmore

Brett Bellmore — Fri, 16 Jun 2006 20:41:57 +0000

“where the author notes the conflict between this ruling and the spread of “a man’s home is his castle” laws.”

Conflict? They’re a perfect fit; After all, what is a cop going to fear more as a consequence of failing to knock and announce? Evidence being thrown out, or taking a slug?

By: Barry

Barry — Fri, 16 Jun 2006 18:35:22 +0000

“Whaddya’ think?”

Posted by Martin Bento

That prosecutors are very rarely elected to prosecute police, and even more rarely re-elected to do so.

By: Functional

Functional — Fri, 16 Jun 2006 16:08:55 +0000

Sebastian is right. While Scalia’s reasoning may look odd to the novice reader of Court opinions, there’s nothing in it that is actually inconsistent with originalism. The exclusionary rule is NOT in the Fourth Amendment, remember. All the Fourth Amendment says is that searches have to be “reasonable,” and that if there’s a warrant, then there has to be “probable cause.” The Supreme Court came up with the exclusionary rule as a prophylactic measure that would hopefully decrease police incentives to bend the rules. If the Court now decides that this prophylactic measure isn’t necessary to ensure “reasonableness”—questionable though that judgment might be—there’s no reason that an “originalist” can’t sign on.

By: kiki

kiki — Fri, 16 Jun 2006 15:08:19 +0000

I don’t like this ruling at all because it lowers the responsibility of the police and because it implies that once a warrant is given, the constitutional right that we have against search and seizures is lowered. It wouldn’t cost anything for the cops to knock and I believe that knocking is an act that is highly symbolic in the sense that it shows that a warrant does not imply that someone is guilty and that someone who is going to have her/his place searched still has the same protections as the rest of us. Scalia and the majority used the end, that is the fact that drugs were found to justify their position and to argue that the police didn’t have to knock. What worries me is the fact that the notion that there is no right to privacy in the constitution is increasingly becoming popular when I believe that it is at the center of the rights given by the constitution. Can we be free if there are no limits to what society and the state can know and can do to us?

By: Martin Bento

Martin Bento — Fri, 16 Jun 2006 15:05:00 +0000

If we reject the exclusionary rule, then perhaps the way to deal with this is with actual criminal penalties for the police. Yeah, you can violate the Constitution, and you can use the evidence, but you’re going to jail. Of course, jurors could let people off if they determine that the crime warranted it, but it would have to be actual nullification: the law itself cannot recognize the legitimacy of Constitutional violations. If the ability to cherry pick and venue shop the jury is restricted, that means police probably will get away with it where they have a very strong case, and not otherwise. Whaddya’ think?

By: Tim McG

Tim McG — Fri, 16 Jun 2006 14:04:23 +0000

This is yet another wake-up call (they’ve been coming for ten years now). Legislation is the way to make law now. It’s easy to rely on the supreme court to endure freedom and justice; it takes a helluva lot more effort to work to elect (to make voters care about) state legislatures.

It’s federalism 2.0 baby, like it or not.

By: Outside The Beltway | OTB

Outside The Beltway | OTB — Fri, 16 Jun 2006 11:41:01 +0000

Knock and Announce Violations Not Subject to Exclusionary Rule

The Supreme Court yesterday ruled that evidence gathered through illegal “no knock” searches did not necessarily need to be excluded from trial if the search was otherwise legal.
NYT’s Linda Greenhouse:
Evidence found by police office…

By: goatchowder

goatchowder — Fri, 16 Jun 2006 09:14:03 +0000

“Scalia, writing for the majority”

That is the most chilling phrase I’ve read all week.

By: Sebastian Holsclaw

Sebastian Holsclaw — Fri, 16 Jun 2006 07:52:34 +0000

The argument about the exclusionary rule is pretty much that it is the only way to enforce the rule about getting warrants. It isn’t a Constitutional rule per se (and the Supreme Court admits that), it is the Supreme Court’s attempt to make sure that the Constitution gets followed in a particular instance.

The question then is, if a warrant is obtained, but the knock procedure is not followed properly, does that require a finding of “unreasonable” such that the evidence must be supressed. A warrant was obtained, probable cause findings were fulfilled. Since the exclusionary rule is an enforcement mechanism to ensure reasonable searches and seizures, it is fair to ask if it should be invoked when the court procedures of the warrant were properly attended to.

By: Katherine

Katherine — Fri, 16 Jun 2006 06:30:06 +0000

Leaving consistency aside, Scalia’s argument is the civil liberties equivalent of: “look how much cleaner the air is now than in the 1970s—this shows we can repeal the Clean Air Act”.

By: asg

asg — Fri, 16 Jun 2006 03:03:07 +0000

Balko has a good follow-up post about how Scalia’s reasoning is really remarkably unconcerned with the facts surrounding no-knock warrants and how they are executed.