29. Self-Deterrence

In post 28, I quote Justice Stevens saying that the police are forbidden to serve "no knock warrants" except in exceptional circumstances.  Evidence seized by police serving warrants is suppressed (i.e., hidden from the jury) in many other circumstances, too, like those in this case from Indiana.  Literally thousands of other examples could be linked to.

But a warrant is a judicial order.  Cops serving a warrant are merely doing what a judge ordered them to do.  With any search warrant, the judge has authorized the cops to break down the suspect's door, if necessary.  The only twist with a "no-knock" warrant is that the decision that it's necessary to break down the door is made in advance by a judge, rather than on the scene by a police officer.

Once a judge has ordered the police to invade your house, any subjective expectation of privacy you have is based on ignorance.  Your objective right of privacy has pretty much been extinguished.   And it's been extinguished by the judge who issued the warrant, not by the police who eventually carry out the judge's order.

So the real "balancing" going on is not between the concerns of the police versus the interests of the homeowner, as Justice Stevens seems to imply (although his discussion is so abstract it's difficult to be certain of his exact meaning).  Rather, the conflict is between the authority of the judiciary and the interests of the homeowner.  When courts suppress evidence obtained by police executing a "no-knock" warrant, or any other type of warrant, they are no longer seeking to deter the police.  (See post 6.)  They are seeking to deter themselves.

Comments

[D]

You assume an understanding of the role of judges that is dangerous (and unfortunately widely shared). A judge who issues a warrant should not be presumed to have a stake in whether the search it authorizes is actually carried out, or whether the evidence obtained is admissible. The judges role is not to guide an investigation or "order" a search; it is to issue an "order", but it is one that authorizes (but does not obligate) the police to search. The judge should issue such an order when the state's interest in the potential evidence outweighs the citizen's privacy interest. Sevens' opinion is not obscure; it simply requires that the details of the case be factored in before authorizing a no-knock search, and the fact that it is a drug case is not by itself sufficient to to justify the invasion of privacy. It undermines the judge's status as an independent arbiter if we treat him as having a stake in the outcome, as you have done. No one should presume that judges are on the side of the police, or the prosecution, against the defendant (even if the scores of judges who are also ex-prosecutors tend to confirm this presumption).

[ken]

It's been a while since I read <i>Leon</i>, but I think that the court rejected your line of reasoning. The only actor which suppression is supposed to effect is the law enforcement official. For some reason suppression isn't supposed to effect the way judges do their business; they're above being effected by being told they made an error and having consequences attach to that error.

[grammar police]

ken: affect, not effect

[ken]

Yep, my grammar is terrible. If you've problems with that you should see me try to use commas.

[Bruce20LEOLA]

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