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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.