Joel Jacobsen

Last week's Hudson v. Michigan decision, the Supreme Court's knock and announce case, is the place where a lot of strands of our criminal law come together.  (See post 126 and post 124.)  I think there's no function of government - no reason for government's existence - more basic than protecting society's members from physical harm.  That's why our ancestors first started hanging around in groups.

But the whole point of the various exclusionary rules, both the textual (fifth amendment protection against coerced confessions) and non-textual ones (all the rest), is that some things are more important than enforcing the criminal law.  And one of those things, we've been told, is to protect the reasonable expectation of privacy.

Knock and announce cases all involve valid search warrants, issued by a judge and supported by probable cause - if they didn't, the evidence would be suppressed for that reason alone.  So whatever expectation of privacy the occupant has is pretty much illusory to begin with - the cops already have permission to enter, one way or the other. 

The dispute in knock and announce cases always boils down to (1) whether the cops knocked and announced at all, and, if they did, (2) whether they waited long enough before kicking in the door.  "Long enough" means some figure between 5 and 20 seconds, pretty much.  (See post 126.)  So the expectation of privacy that's more significant than enforcing the criminal law is 15 seconds or less of knowing that the cops are going to break down your door if you don't open it at once.

Of course, the cops sometimes raid the homes of the innocent.  There's a description of one such fiasco in Edward Conlon's Blue Blood - the cops recognize immediately that the information they received was bad, but once they're inside they don't have any choice but to see the raid through to its dismal end.  So a good argument could be made that we need a rule to protect the innocent from rampaging cops.

Unfortunately, the knock and announce rule isn't it.  Those who are innocent - those who don't have drugs, or stolen property, or murder weapons in their homes - get no benefit at all from a rule that suppresses (i.e., conceals from the jury) evidence of such things.  We've developed a remedy for innocents that doesn't help them at all, like treating pneumonia with wrist splints.

The only people who receive any benefit from suppression of evidence found during a premature police raid are those with evidence to suppress.  Those, in short, who actually had a motive either to destroy evidence or to shoot the officers coming through the door. 

So with the announced intention to protect those who don't have such a motive, we've created a rule that protects only those who do.  It's nearly perfect in its way.

When the only thing the police discover inside the home is drugs, it's easy to believe in a sort of half-thinking way that no real harm comes from letting the poor defendant get away with it.   Not all drug traffickers are antisocials, some are probably pretty harmless (see post 93) and we know for a fact that the overall availability of drugs in the neighborhood isn't going to change whether this dealer walks or rots in federal prison.

But when you start down the road of pretending that the Constitution requires you to hide evidence from the jury, you're stuck with hiding it, even when the crime involved isn't something as comfortably quaint (or so it probably seems to many baby-boomer judges) as selling pot.  If the knock, announce and wait rule is actually written (in invisible ink) in the fourth amendment, then it applies equally to the person carving up fresh cadavers in his bathtub to feed to the alligators.

Assuming you're not a drug dealer, the risk of police kicking down your door is pretty slight today, but before the war on drugs it was just about exactly nil.  The knock, announce and wait rule is one more way in which the war on drugs has damaged American society.

Most significantly of all, the knock, announce and wait rule, justified as a way to protect homeowners from property damage and to compensate them for injuries to their dignity,  is essentially a tort claim.  The government prosecutes you, but you sue the government for damages.  But - and this is the really interesting part - the damages to which you claim legal entitlement is the right to break the law.

Our legal system considers money an adequate compensation for the mill worker whose arm is ripped off by the machine, or the parent who loses a child to medical malpractice, or the policyholder confronted with a crooked adjuster.   But one class of victims receives something even better than money.  They receive a get-out-of-jail free card. 

The underlying, unspoken and unexamined assumption is that it's not possible to provide compensation to victims of police misconduct and still enforce the criminal law.  But why not?  It's true, as a practical matter, that juries aren't much inclined to award damages in civil rights actions brought by guilty people, as Norm Pattis points out.  But the solution suggests itself: a mechanism for providing predictable monetary compensation in a non-jury proceeding, like workers comp. 

There's no political will for such an obvious solution because our definition of "crime" has diverged so far from the fundamental purpose of criminal law.  As long as violent crime and drug possession are treated as the same thing, we're going to continue to have judges who invent new constitutional doctrines out of thin air to counteract the sentencing laws that are so ferocious in part because judges have spent much of the last 30 years inventing new constitutional doctrines out of thin air.