On Thursday the Supremes decided Hudson v. Michigan, in which a 5-4 majority concluded that the Constitution doesn't require suppression of evidence gathered following a violation of the knock and announce rule. The reaction in the blogosphere seems generally hostile. From the libertarian right, here's the Cato Institute's Mark Moller on "The Fourth Amendment as Legal Fiction", and from the defense bar left, here's Talk Left's T. Christopher Kelly on "No Remedy When Police Fail to Knock Before Executing a Search Warrant."
Orrin Kerr points out the amateurishness of Justice Breyer's dissent, while Professor Bainbridge takes the opportunity to make an excellent point about Justice Scalia's judicial technique, which I'll return to in some future post. Norm Pattis points out how illusory is the prospect of obtaining money damages in a civil rights suit for a caved-in door - if, that is, the cops actually find what they're looking for. A sober assessment can be found over at CrimProf Blog.
The decision got a lot of coverage in the papers. The New York Times ran an initial piece telling us that it "signaled the more conservative tilt of the tribunal in recent months." (That conservatism explains why the Cato Institute is so exercised.) Linda Greenhouse's follow-up informed us that the ruling "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."
Now, I love Linda Greenhouse as much as any other lawyer who secretly longs for a favorable mention in the Times, but given that England didn't have a police force until 1829 I can't help scratching my head just a little about her history. The knock and announce rule wasn't yet part of the fourth amendment in 1963, when the Supreme Court decided Ker v. California. (Look at part III.) In 1992, the famously conservative Massachusetts Supreme Judicial Court held: "Our knock and announce rule is one of common law which is not constitutionally compelled." (Goggin, 587 N.E.2d at 787)
It was only in 1995 that Clarence Thomas, the liberals' favorite justice, declared rather ambiguously that the knock and announce rule "is an element of the reasonableness inquiry under the Fourth Amendment." So the fourth amendment that's "evaporating before our very eyes" is the 1995 version, not the one from the 13th century. (Whew!)
There's a lot to be said about Hudson v. Michigan. It goes right to the heart of the main question raised by the exclusionary rule, which is: What's it for? Is it to control the police, or to punish them, or to even the odds between prosecution and defense, or to protect the privacy (and door frame) of the homeowner, or to protect the purity of the courtroom from the taint of police officers executing a judge's warrant?
Is it merely a reaction to the stupidly savage sentences imposed in drug cases (which are themselves in significant part a reaction to the way in which the exclusionary rule prevents convictions of guilty drug dealers)? (See post 100.) Is it best understood as a simple struggle for power between the judiciary and executive branches, and between the federal and state governments? Does it reflect a judicial concept of the police as an occupying army that must be restrained by detailed rules of engagement?
And why do we lie to jurors?