Thursday, June 15, 2006

No More Knock & Announce

The Supreme Court ruled today in the case of Hudson v. Michigan that if police officers have a warrant, they no longer have to knock and announce themselves as police before entering a home. This is a shift made possible by the retirement of Justice O'Connor.

I don't really understand why this is controversial. The sanctity of the home must be protected, but that's why there's a warrant process. But in case I had any doubt, Justice Breyer reminded us why we need more Alitos and Robertses on the court:

It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection.

The Constitution has a "knock-and-announce protection?" That must be in the Eleventeenth Amendment.

The only "practical value" I can see in the old rule is the value to the criminal who has extra time to hide or destroy evidence, or even escape. Once the warrant is issued, due process has been upheld. The ONLY benefit to requiring an announcement is to the criminal flushing drugs down the toilet.


UPDATE: Here's the opinion itself (PDF). And I was wrong initially, as I should have suspected I would be when relying on the Seattle Times for legal analysis. The knock-and-announce rule is still in effect, but the exclusionary rule is not applicable to it under these circumstances.

Check out the facts behind the arrest in particular. The door was unlocked, not broken down. There were large quantities of drugs and firearms, including a loaded gun hidden in the cushions of the chair in which the suspect was sitting. I just can't see how this is unreasonable.


Cato said...

I think there's a benefit in having time to open your door so it isn't busted off its hinges.

But then, I also think there's a benefit in police acting in a civil manner. And no, keeping drugs from being flushed down the toilet is not a good enough reason in my mind for letting police bust down doors.

Cato said...

Here's a way better response than I could cook up, from our friends at Cato.

Orrin Johnson said...

I'm not saying I want cops to bust down the door every time. But I think it's fair to give them some flexibility to exercise their profesional discretion. If they know the guy they're arresting is a repeat drug dealer/offender who likes to hide evidence and run from cops, please, by all means, break down the door. If they suspect the guy is armed and has killed people before, why in the world is it reasonable to expect them to put their lives in danger because they don't want the land lord to have to replace a couple of hinges?

Maybe it should be specified in the warrant whether or not the cops must knock. That might lead to a more ballanced approach.

I don't like hard and fast rules made up out of whole cloth that never were meant to exist in the Constitution, even if I might agree with the rule in application. Every single state has the ability to adjust this policy as they wish. This is not and should not be a Constitutional SCOTUS decision, and I'm glad to see this Court recognizing the limits of their charter.

Cato said...

Orrin, I'm not sure I buy that the knock & announce rule is made up. What exactly does the word "unreasonable" mean? Does it just mean getting a warrant? Maybe you also have to be reasonable in how you conduct the search. I don't think that's a stretch, and I don't think the founders were thinking in terms of military-style police raids.

Whenever the Constitution is strictly construed to restrict individual liberty, I think about that wacky argument that gun rights only exist for militias.

Orrin Johnson said...

Since the k-a-a rule wasn't recognized until 1995 (Wilson v. Arkansas, 514 U.S. 927, 934 (1995)), I think "made up" is a fair statement. The case itself (I linked it in an update on the original post) gives a very good background of 4th Am. "reasonableness" jurisprudence.

Most of our current understanding of where the 4th Amendment limits are were significantly extended in the 60s under the Warren Court. I'm not saying that I don't appreciate many of those recognized protections, but I also don't think we were living in a police state prior to 1954, either.

Cato said...

Bottom line, if somebody busts down my door and comes into my house, dressed in dark clothing, in the middle of the night, what am I supposed to do? Hands over my head? What if it's criminals? I'm going to grab my hypothetical gun, is what I'm going to do. So what if they yell "police" or "FBI" when they burst through the door. Anybody could yell that. In fact, I wouldn't be surprised if criminals start catching on that homeowners are supposed to stop defending themselves and their families if someone yells "police".

Orrin, what the hell is wrong with this picture? How did we get to the point where I have to guess everytime somebody breaks into my house whether they're a bad guy or not? If I do the sensible thing and cover the door with a weapon, I'll be shot for sure, and my family might be hurt. Please, tell me how I'm supposed to protect my family from actual intruders if I can't trust the police not to look and act like intruders?

And how can you possibly justify this sort of abuse of liberty with the drug war which is waged largely against victimless crimes?

Moderate Milquetoast said...

And what if someone is, ahem, getting to know someone biblically. Doesn't the knock and announce allow the to put a bathrobe on? How much time between the knock and announce and the door break down?

Orrin Johnson said...

The cops will still announce AS they're coming in - their own safety demands that. They'll probably still announce ahead of time in most cases for the same reason. But if they know the person they're trying to aprehend is laying in wait for them, they don't have to announce (if you read the opinion, you see that that was an exception already in place before even this ruling came out.) After reading the opinion, it seems the biggest mistake the State of Michigan made was in conceding that their entry violated k-a-a rule.

And if the door is broken, you're caught in a compromising position, etc., you STILL have relief. You can sue the individual police, the department, the county, the state, or whomever. You can file a 1983 action. The ruling is narrow - it only says that the evidentiary exclusionary rule won't be applied for this particular violation.

Cato, crooks have been impersonating cops for millenia in order to gain access to people's houses and other areas. This ruling won't change that. If bad guys can do a coordinated entry of the kind police teams are trained to do, that community has bigger problems. Homeowners were ALWAYS "supposed to stop defending themselves" when the "intruders" announce themselves as police. And yes, you are supposed to put your hands on your head when you hear, "POLICE! GET DOWN ON THE GROUND AND PUT YOUR HANDS WHERE I CAN SEE THEM!"

Again, because this only modifies an 11 year old rule, I don't see it as some vast civil liberties impingement. Were we seriously living in a police state in 1994? Hardly. Does this ruling allow cops to go willy-nilly into any home unannounced without a warrant? Nope - not even close. Does it allow cops to wantonly destroy a home they're lawfuly entering just for kicks, with no liability? Not on your life.

The only thing this ruling does is not allow bad guys like Mr. Hudson to escape their criminal libaility. That's it. The exclusionary rule is not used in all cases, nor should it be. There are other, less severe and more appropriate penalties the People can and should be subject to in this situation. I'm glad the court recognized that in this case.

SirWhoopass said...

On a related noted, it is being reported that law enforcement agencies are skipping subpeonas and warrants altogether and simply purchasing the information they want.