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.
In your second full paragraph, did you really mean to say that fruit of the poisonous tree limits the exclusionary remedy? I thought FOTPT was an extension of the exclusionary rule, not a limit to it, since it bars the admission of illegally obtained evidence.
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I would feel more comfortable with this decision if (though there may be no precedent for this) the Court had mandated that if a jurisdiction does not apply the exclusionary rule, some other form of judicial censure would be appropriate – fining the prosecutor, the officers and the police department, perhaps. I worry that without the threat of the exclusionary rule, there isn’t any other viable punishment for fourth amendment violations.
I’ll admit to only reading Lyle Denniston’s and Professor Kerr’s coverage of the case, but this seems to me to be the right decision.
The Court didn’t preclude another remedy (such as a Bivens or 1983 action) – they merely held that the concerns underlying the exclusionary rule aren’t implicated here, therefore, the rule doesn’t apply.
This seems like a common-sense reading of the Court’s precedent, and I’m one who typically sides with the liberal wing.
I will admit to some surprise that Justice Scalia wrote the opinion given his staunch defense of the home in Kyllo and similar cases.
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Alan, I don’t think it’s too surprising. Scalia protects the home from unreasonable search without a warrant; once a warrant has issued, searching it is no longer unreasonable.
The way I read the decisions, Scalia is clearly stating that the exclusionary rule does not automatically apply to violations of the knock & announce requirements, and is suggesting that perhaps it should never apply; but Kennedy is leaving open the possibility that the rule might apply, or he might change his mind and so hold if violations of the knock & announce requirement become commonplace or cause great harms (e.g., violent confrontations with armed homemakers who mistake police for intruders).
I read Scalia as suggesting that the exclusionary rule may never apply to these violations because the main reason he suggested for why it should not apply—the cost of letting the guilty man go free because of the constable’s blunder exists regardless of the context in which the police violate this rule and is really an argument against the exclusionary rule itself, not just an argument about not applying it to a particular circumstance.
As to who is more faithful to precedent, I would say this is more of a draw. Doesn’t your criticism of Breyer’s opinion as simplistic largely go away if he had just said that “And ever since Weeks and Mapp, the use of evidence secured through an illegal search and seizure is PRESUMPTIVELY barred in criminal trials.”
Fair point.
“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. ”
No one (including Breyer) on the court has ever suggested that not knocking and announcing is automatically unreasonable. In Wilson v. Arkansas (http://www.law.cornell.edu/supct/html/94-5707.ZS.html) all that was concluded was that “The common law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.” But in this particular case (http://www.law.cornell.edu/supct/html/04-1360.ZS.html), “Michigan has conceded that the entry here was a knock-and-announce violation”. So the issue of “holding that the knock-and-announce requirement is not irrelevant to reasonableness” is a non-issue because Michigan conceded what they did was unreasonable.
“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.”
Breyer would disagree with you that there are “lots of other doctrines” saying when the exclusionary rule does not apply. In criminal trials, he asserts there is only one doctrine saying when it does not apply: “where there is a specific reason to believe that application of the rule would �not result in appreciable deterrence”.”
[OK Comments: Re your 1st comment, why would the existence of a knock and announce violation render the search automatically unreasonable? Aren't they two different inquiries? Re your second, Breyer might disagree, but if so, wouldn't Breyer be wrong?]
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