Justice Scalia and the Living, Breathing Fourth Amendment
I’d be interested in knowing whether the originalists in the audience approve of Section III(b) of Justice Scalia’s opinion in Hudson v. Michigan, in which he applies the 1980s-vintage balancing test for whether suppression is appropriate by noting recent trends in police training and public interest litigation. An excerpt:
. . . Congress has authorized attorney’s fees for civil-rights plaintiffs. This remedy was unavailable in the heydays of our exclusionary-rule jurisprudence, because it is tied to the availability of a cause of action. For years after Mapp, “very few lawyers would even consider representation of persons who had civil rights claims against the police,” but now “much haschanged. Citizens and lawyers are much more willing toseek relief in the courts for police misconduct.” M. Avery, D. Rudovsky, & K. Blum, Police Misconduct: Law andLitigation, p. v (3d ed. 2005); see generally N. Aron, Liberty and Justice for All: Public Interest Law in the 1980s and Beyond (1989) (describing the growth of public-interest law). The number of public-interest law firms and lawyers who specialize in civil-rights grievances has greatly expanded. . . .
Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, United States v. Payner, 447 U. S. 727, 733–734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950–1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’scases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S.DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalitiesto financial liability. See Canton v. Harris, 489 U. S. 378, 388 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not havea deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.
Am I right that Scalia is saying that the meaning of the Fourth Amendment can change over time as the staffing of police departments and public interest law offices changes? The Constitution — It’s alive! This is a plausible view based on Fourth Amendment precedents, I should point out. Still, it’s sort of funny to read it in an opinion by Justice Scalia.
What Is the Holding of Hudson v. Michigan?
At least based on my initial read of Hudson v. Michigan, it seems to me that the legal rule announced by the Court’s majority opinion could be either of these two rules:
1) Violations of the knock-and-announce rule do not lead to automatic exclusion of evidence obtained, although they may still be relevant to suppression in some contexts because they alter the constitutional reasonableness of the search.
2) Violations of the rule must be enforced throught civil suits, not throught the exclusionary remedy. Violations of the knock-and-announce rule are completely irrelevant when a defendant seeks suppression of the evidence.
Reading over the majority opinion, I see hints of (1) and hints of (2), although it’s not clear to me which is the Court’s holding. Am I missing something, or does the Court’s opinion leave that important question unclear?
Hudson v. Michigan and Fourth Amendment Precedent
One of the debates between Justice Scalia’s majority opinion and Justice Breyer’s dissenting opinion in the new knock-and-announce decision, Hudson v. Michigan, is which opinion is more consistent with the Court’s Fourth Amendment precedents. According to Scalia, automatic suppression for a knock-and-announce violation is inconsisent with precedent; according to Breyer, precedents strongly support such a rule. Which side is right?
As a doctrinal matter, it seems to me that Justice Scalia’s majority opinion has it basically right. First, Fourth Amendment rules traditionally have focused on the facial validity of the warrant — the requirements of probable cause and particularity — rather than its execution. So long as the evidence discovered is within the scope of the warrant, the execution of the warrant traditionally receives very little constitutional scrutiny. Second, even where the Court has announced a constitutional suppression remedy, that remedy is typically limited by all sorts of exceptions such as good faith and fruit-of-the-poisonous tree doctrine. As every practicing criminal lawyer knows, when the police have a warrant the evidence is probably coming in even if the defense can find some technical violation along the way. So if the question is which rule fits most naturally into the preexisting framework of Fourth Amendment law, it seems pretty clear that it’s the majority’s rule, not the dissent’s. Put another way, Scalia’s opinion essentially restores the constitutional status quo.
Justice Breyer’s dissent relies heavily on policy arguments, but also accuses the majority of departing from the Court’s precedents. According to Breyer, suppression is required as a matter of “elementary logic” drawn from the Court’s cases:
We have held that a court must conside[r] whether officers complied with the knock-and announce requirement in assessing the reasonableness of a search or seizure. Wilson, 514 U. S., at 934 (emphasis added); see Banks, 540 U. S., at 36. The Fourth Amendment insists that an unreasonable search or seizure is, constitutionally speaking, an illegal search or seizure. And ever since Weeks (in respect to federal prosecutions) and Mapp (in respect to state prosecutions), the use of evidence secured through an illegal search and seizure is barred in criminal trials.
To be candid, though, this is pretty amateurish. If you’re going to rely on “elementary logic,” I think you need to address the difference between holding that the knock-and-announce requirement is not irrelevant to reasonableness and holding that a violation of the requirement automatically renders a search unreasonable. That’s the issue presented by the case, and it’s not covered by the syllogism. Further, it’s just not accurate to say that “the use of evidence secured through an illegal search and seizure is barred in criminal trials,” as that is clearly not the case under doctrines such as the good faith exception of Leon, the fruit of the poisonous tree doctrine of Wong Sun, and lots of other doctrines such as inevitable discovery and standing rules that limit the scope of the Fourth Amendment exclusionary rule. In light of that, an automatic suppression rule for knock-and-announce violations would have been a pretty dramatic departure from existing Fourth Amendment law.
Reasonable people can disagree on what the remedy should be for knock-and-announce violations. The rule wasn’t constitutionalized until 1995, and the Court had carefully avoided the remedies question until now. And my guess is that most Fourth Amendment commentators don’t much care about the precedents: If you think that existing Fourth Amendment law has it wrong, then doctrinal coherence is a liability rather than an asset. But if the question is finding a rule that best fits into the framework of the Court’s precedents, it seems to me that the majority has it basically right.
Initial Thoughts on Hudson v. Michigan
The Supreme Court’s 5-4 decision in Hudson v. Michigan is now available here.
I’ll have a few substantive thoughts in a moment, but for now just let me note the oddity of a majority opinion by Justice Scalia citing a book by Alliance for Justice President (and, I should also add, my cousin) Nan Aron. See page 11.
Hudson v. Michigan Handed Down
Lyle Denniston reports:
The Supreme Court, in a splintered decision, ruled on Thursday that a violation by the police of the “knock-and-announce” rule when they enter a home does not necessarily bar the use of evidence gathered in the search. The vote on the result was 5-4. Justice Antonin Scalia wrote the main opinion in Hudson v. Michigan (04-1360) — a case that had been argued twice during this Term. A part of Scalia’s opinion had the support of only three other Justices.
The 5-4 vote isn’t surprising, given that Hudson was a reargued case with Alito being the fifth vote. I’ll have a link and a few thoughts on the opinions as soon as they are available. (In particular, it will be interesting to see what splintered the Court, and whether it has any impact on the bottom line.)
For some of my initial thoughts on the issues raised by the Hudson case, see my post at the VC here.
10:35 Update: Lyle’s updated version of his description of Hudson now says this:
The Supreme Court, in a 5-4 decision, ruled on Thursday that a violation by the police of the “knock-and-announce” rule when they enter a home does not bar the use of evidence gathered in the search. Justice Antonin Scalia wrote the majority opinion in Hudson v. Michigan (04-1360) — a case that had been argued twice during this Term. A part of Scalia’s opinion, saying that the result was dictated by the Court’s prior precedents, had the support of only three other Justices.