“As usual”:http://www.slate.com/id/2139458/, “Radley”:http://www.theagitator.com/archives/026693.php#026693 “Balko”:http://www.cato.org/new/pressrelease.php?id=34 is the man “to consult”:http://www.theagitator.com/archives/026686.php#026686 on the “Hudson vs Michigan”:http://www.supremecourtus.gov/opinions/05pdf/04-1360.pdf case, which concerns the constitutionality of no-knock police raids. (Balko is even cited on p.10 of “Breyer’s dissent”:http://www.law.cornell.edu/supct/pdf/04-1360P.ZD.) Today’s decision basically says evidence obtained from no-knock raids is admissible in court. The broader implication, as Balko says, is that “there is now no effective penalty for police who conduct illegal no-knock raids.” By the by, Scalia, writing for the majority, is happy to set his originalism aside and argue that the growth of “public-interest law firms and lawyers who specialize in civil-rights grievances … [and] the increasing professionalism of police forces, including a new emphasis on internal police discipline … [and] the increasing use of various forms of citizen review can enhance police accountability” all mean that the fourth amendment can be reinterpreted.
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Martin Bento 06.15.06 at 4:35 pm
One of the problems is liberals accepting conservative frames. Since conservatives frame themselves as opponents of judicial activism, liberals defend judicial activism. This is a good example of what judicial activism really means.
Didn’t Brown vs. Board of Education, the cannonical liberal bit of supposed JA, rest ultimately on a question of fact: that separate but equal could not in fact be equal, and therefore could not exist? I’m not just asking rhetorically, wasn’t that the argument? Because I don’t see a finding of fact, even a disputable one, as judicial activism: the law will always have to rest on some set of supposed facts about the world – I cannot imagine law without reference to fact – so arbitrating claims of fact would seem unavoidable.
What we have here, though, is the police state the Republicans have wanted for almost half a century finding its way to fruition.
Tom T. 06.15.06 at 4:59 pm
There’s also some thoughtful discussion over at OrinKerr.com.
Dan Simon 06.15.06 at 5:30 pm
The broader implication, as Balko says, is that “there is now no effective penalty for police who conduct illegal no-knock raids.â€
Of course, legislatures and executives can create one at any time–and no doubt will, if the public so desires. (And the public often does so desire–the list of non-judicially-imposed constraints on police behavior is very long and very detailed.)
So what’s the problem? That the public might not be quite as upset about “no-knock” raids as Radley Balko and his fellow libertarian types are? Why should anyone sensible–let alone a Crooked Timberite–worry that not enough people are embracing the Cato Institute position on some issue?
Adam Kotsko 06.15.06 at 6:00 pm
Presumably they would have warrants for the raid, right?
tom 06.15.06 at 6:21 pm
Yes, they would have warrants
Sebastian Holsclaw 06.15.06 at 7:22 pm
“By the by, Scalia, writing for the majority, is happy to set his originalism aside and argue that the growth of “public-interest law firms and lawyers who specialize in civil-rights grievances … [and] the increasing professionalism of police forces, including a new emphasis on internal police discipline … [and] the increasing use of various forms of citizen review can enhance police accountability†all mean that the fourth amendment can be reinterpreted.”
I think no-knock raids are awful policy and should never be used unless there is an immediate and life-threatening need. But I’m not sure which part of orignalism would mandate a different reading such as to create the comment about originalism in this post. The exclusionary rule as a Supreme Court Rule is only decades old. The fourth amendment is an original feature of the Constitution. And Scalia isn’t even saying that no-knock is ok, he says that the mere existance of a no-knock does not automatically make the search and seizure “unreasonable” in the 4th amendment sense.
bza 06.15.06 at 7:32 pm
Sebastian: Kieran’s claim is not that the result is impossible to reach by originalist reasoning, but that Scalia’s own reasoning isn’t originalist. (That’s the upshot of the bit of the bit of the opinion that Kieran quotes. There, Scalia cites a change in social circumstances as justification for his interpretation.)
grackel 06.15.06 at 8:09 pm
An ironic view of the ruling can be found at
grackel 06.15.06 at 8:11 pm
An ironic view of the issue can be found at TPM Cafe, where the author notes the conflict between this ruling and the spread of “a man’s home is his castle” laws.
snuh 06.15.06 at 8:24 pm
this just in, scalia’s a dishonest hack. well i never.
re #7, see here.
Steve LaBonne 06.15.06 at 8:29 pm
Vaffanculo, Nino.
Joe 06.15.06 at 9:49 pm
Decades old? You mean 12? Boyd v. U.S. was decided in the 1880s. It was the true granddaddy of the rule. The rule was applied in Weeks in the 1910s for the federal gov’t, while applied to the states in the 1960s. I guess that is what you mean by “decades.”
asg 06.15.06 at 10:03 pm
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.
Katherine 06.16.06 at 1:30 am
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”.
Sebastian Holsclaw 06.16.06 at 2:52 am
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.
goatchowder 06.16.06 at 4:14 am
That is the most chilling phrase I’ve read all week.
Tim McG 06.16.06 at 9:04 am
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.
Martin Bento 06.16.06 at 10:05 am
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?
kiki 06.16.06 at 10:08 am
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?
Functional 06.16.06 at 11:08 am
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.
Barry 06.16.06 at 1:35 pm
“Whaddya’ think?”
Posted by Martin Bento
That prosecutors are very rarely elected to prosecute police, and even more rarely re-elected to do so.
Brett Bellmore 06.16.06 at 3:41 pm
“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?
mpowell 06.16.06 at 4:16 pm
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?
Sebastian Holsclaw 06.16.06 at 7:33 pm
“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.
Fortruth 06.18.06 at 9:39 am
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.
El Gringo Loco 06.20.06 at 9:08 am
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.
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