Joel Jacobsen

Here's the lede from an AP story about the Supreme Court's decision this week in Hudson v. Michigan (see post 124):

The Supreme Court made it easier Thursday for police to barge into homes and seize evidence without knocking or waiting, a sign of the court's new conservatism with Samuel Alito on board.

Conservatives, you see, like police barging into their homes.  Many, in fact, keep a sherry goblet waiting on the sideboard in the entrance hall, to greet the officers who splinter their carved doors in the middle of the night.

The AP reporter assured us that the decision was "a significant rollback of earlier rulings protective of homeowners", by which he or she must have meant the 1995 decision written by Justice Thomas.  Since three of the justices who participated in the 1995 decision voted with the majority in Hudson,  that means they were rolling back their own prior decision. 

But doesn't this make the story a sad example of burying the lede?  Isn't the really big news that three justices were retreating from the position they staked out just 11 years ago?  When's the last time you can remember Justice Scalia admitting he was wrong?

Well, perhaps it's asking too much to expect an AP reporter to know anything about recent constitutional history - the Constitution is such a squirmy, changeable thing.  1995 is ancient history, constitutional criminal procedure-wise.

But if the Hudson decision made it easier for police to barge into people's homes, you have to wonder how the knock and announce rule made it hard.  Was it a kind of temporary force field?  Was it pixie dust that transformed cops from barges into gliding sloops?  Should we picture a judge in his black robe standing beside the front door, stopwatch in his hand, giving the signal to the battering ram after exactly 15 seconds?  Or 30?  Or whatever that particular judge thought was about right?

(Doesn't "battering ram" suggest something more like this or maybe even this?  Here's the disappointing reality, here's it in action, and here are the specs.)

The AP story might have been more accurate if it had started:

The Supreme Court ruled today that truthful information is not necessarily such a terrible thing to provide to jurors, a sign of an increased commitment to reality with Samuel Alito on board.

Or:

The Supreme Court ruled today that judges, who have no training or experience in law enforcement, and are too chicken to accompany cops serving warrants they themselves have issued, might not be ideally qualified to establish standard operating procedures for law enforcement agencies.

Or:

The Supreme Court ruled today that any expectation of privacy a homeowner has after a squad of Kevlar-jacketed cops armed with a valid warrant deploy around his house is illusory, at best.  Writing for the majority, Justice Antonin Scalia held: "There is considerable folk wisdom in the lyric, 'If you've got a warrant, I guess you're gonna come in.'  Whether it's now or ten seconds from now doesn't really matter, does it?"

Suppressing evidence as a result of a "violation" of the knock-announce-and-wait rule didn't stop police from barging in.  It just meant juries didn't learn what the cops found once they were inside.  It's understandable that lawyers and judges act as if they can't perceive any difference between the two - the Supreme Court has told us there's none, and the law is a hierarchy as strict as the military.  We follow orders.  But I never understand why reporters feel compelled to go along with our game of constitutional make-believe.

I put "violation" in quotes because no one actually knows what it takes to violate the knock and announce rule.  Over at Crime & Federalism, we read:

Absent extreme circumstances, the Fourth Amendment prevents police officers from kicking down a citizen's door when executing a search warrant.  The police are required to knock on the door, announced their presence, and wait from 20-30 seconds before kicking down a citizen's door. 

But in 2003, the Supreme Court said 15-20 seconds was okay, given exigent circumstances - and the mere possibility that the cocaine dealer would destroy evidence was exigent enough.  (The poor guy was actually in the shower.)  Is 10 seconds too little?  My local Court of Appeals said it was, based on the specific facts of the case, while remarking that it was a "close question."  But the Sixth Circuit upheld a wait of just 5-10 seconds.

In the case of the showering cocaine dealer, the Ninth Circuit's Judge Fisher wrote:

15 to 20 seconds is not an insignificant amount of time to wait after a loud knock and announcement. Knock, then count out the time to see for yourself.

It's a useful exercise.  15-20 seconds is about how long most phones ring before rolling over to voice mail.  And remember that any cocaine or meth dealer who isn't heavily armed is a fool - think for a minute about the type of people who know best about the cash and drugs he keeps in his home.  And remember, also, that any cocaine or meth dealer who uses the product isn't very good at assessing his own long-term best interest - and that was before he had used enough to display the chronic user's characteristic paranoia. 

Now, how comfortable are you with lining up your body with the rectangular frame of the doorway, knocking on it and yelling, "Police!  Shoot now or face twenty years in prison!  Last chance!"