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.
I’m just throwing this off the top of my head here (without reading the opinion itself, natch) but maybe Scalia’s favored rationale — a much more conventional approach — is found in his Part IV. But only 3 justices joined that part, and he needed to sweet-talk the less originalist Kennedy with this excerpt.
Of course, then Kennedy could have just written a concurrance in the judgement…but then it might look too divided.
Scalia (and even Bork) has said the Constitution’s principles do not evolve, but the applications of those principles change with the facts and circumstances and in that sense the Constitution is flexible. Both cite the Fourth Amendment context as proof of this flexibility. I do not think either has said that the Court can only hear cases exactly like those it has heard before.
I presume that Scalia’s response, similar to his brief dissent in Randolph this year, would be that the meaning of the Constitution remains constant — the exclusionary rule is required when no other adequate remedies exist for a Fourth Amendment violation. If that’s what the constitutional rule is, changes in statutory remedies, or in the practical viability of pre-existing statutory remedies, must obviously be taken into account in applying the rule.
An interesting example of this phenomenon is McConnell’s argument for why Brown v. Board was right even if you accept originalism. Once one recognizes that the framers of the 14th Am. believed in a tripartite scheme of civil, political, and social rights, of which only the first was protected by the 14th Am., and that the existence of a civil right under that scheme was defined in part by how widespread and prevalent the right was, then education might not have been a civil right in 1868 but might have become one by 1954, applying the original views of the ratifiers of the Fourteenth Amendment.
I’m hardly a legal scholar in general or a Scalia scholar in specific, but hasn’t Scalia always said he’s a textualist first? For a textualist, wouldn’t it be okay if the meaning of the fourth amendment changed from time to time? The text says no unreasonable searches. It makes sense that what was unreasonable in 1950 might not be unreasonable now, or vice versa. So by allowing something now that is no longer unreasonable, he is sticking to the text.
Further, one could even argue that for an originalist, this is not an insurmountable problem. The founding fathers decided not to ban what they felt was unreasonable, but whatever society felt at the time was unreasonable (evidenced by the fact that they chose the word unreasonable instead of describing or enumerating bad acts). Thus the original intention WAS to have a living fourth amendment standard, keyed to the standards of society. Thus it is not violating original intent to change standards over time.
I don’t necessarily consider myself an originalist (having read on the subject regularly for the past ten years, I’ll confess to having no idea what that really means) but my guess is that an originalist view might give no support for the exclusionary rule as a remedy, period (I confess utter speculation here). Since that would fly much as bricks do not, he’s left with the latter approach (though as Denniston points out, I think the opinion can be viewed in part as a small step toward such a conclusion).
I’ll also say that such an opinion out of Scalia isn’t surprising — out of Thomas it would probably be much more so. Finally, if something were to have a changing meaning over time, I would guess it was a definition of a reasonable search — a very wooly word indeed.
The text of the Fourth Amendment does not spell out how evidence obtained in violation of the the Amendment ought to be treated. Prior to Weeks, how did courts treat such evidence? Did Weeks or any of the subsequent cases ever hold that the exclusionary rule was rooted in the text and tradition of the Fourth Amendment? It’s been awhile and I’m probably missing something elementary but would you elaborate why you think “originalism” is relevant to Scalia’s construction of prior exclusionary rule precedent, including the referenced balancing test, in Section III.B?
I don’t make a habit of defending Justice Scalia, especially with respect to his inconsistent use of originalism, but your criticism here strikes me as somewhat unfair.
The exclusionary rule is justified by the need for deterrence. Scalia’s analysis in III.B. is just an analysis of whether suppression in this context is necessary to sufficiently deter knock-and-announce violations. I’m not sure that there is an “originalist” way to analyze the issue, given the nature of the inquiry (i.e., suppression appropriate when necessary for deterrence).
The real “originalist” position, of course, would be that exclusion is never an appropriate remedy. Scalia does not take that position here, though he may be pushing in that direction, given: (1) some of his language in Hudson; (2) some of the questions he posed at oral agument with respect to Mapp; and (3) Kennedy’s concurrence (“The continued operation of the exclusionary rule . . . is not in doubt.”). Obviously, you know Kennedy better than many of us, but I wonder why he would feel the need to include that line if he actually believed it.
I see now Lyle Denniston has a longer, more thoughtful post on this topic at SCOTUSBlog. But I had the same impressions while reading today’s opinions as he did. And definitely take a look at the oral argument transcript too.
I believe I’m not the first to observe that Justice Scalia is a fair-weather originalist. It’s a principle he invokes when it produces the “correct” result, but selectively ignores when it produces the “incorrect” result.
I find this part of the opinion odd and consider it dicta.
The contraband here was seized as a direct result of a valid search warrant and has no relation to the manner of the officer’s entry. Thus, as Scalia said in III(a), exclusion is not proper because the illegal manner of entry was not the but-for cause of obtaining the evidence. Although causality, by itself, isn’t sufficient to win suppression, it certainly is a bare minimum condition. That wasn’t present here, thus there’s no reason for exclusion. I think the opinion could have ended at that point, with a cite to Segura and Murray for reinforcement. To me, all the balancing in III(b) is dicta.
By the way, I find Section IV of the opinion (the discussion of Segura and Murray) to be the most persuasive. I think it’s interesting that only Roberts, Thomas, and Alito joined on to that part. Let’s remember that Segura, like this case, involved one illegal entry by the police. Unlike in Hudson, however, the Segura entry was without a warrant. Indeed, the Segura officers stayed in the apartment hour nearly 24 hours while waiting for the search warrant to issue. It would be a funny doctrine that permits evidence obtained after an illegal, warrantless entry, but excludes evidence obtained pursuant to a valid search warrant because of a knock-and-announce violation.
I don’t see anything in the dissent that adequately addresses Segura and Murray. They attempt to distinguish Segura by describing the issuance of the warrant in that case as an intervening, independent event that refreshed the causal chain after the initial unlawful entry. The problem with the Hudson search, according to the dissent, is that the warrant was issued before the knock-and-announce violation, and thus tainted the entire search. The problem, though, with trying to make the Segura search into two separate events is that the police never left the apartment. There was only one entry. The independent source of discovery in Segura (and Murray) was the search pursuant to a valid warrant because the source of the warrant had nothing to do with the premature entry. Had there been no warrant, no independent source of discovery would have existed. This case is no different. Attempts to make it so would result in perverse incentives for the police. Instead of encouraging officers to obtain a warrant before entering a home, Justice Breyer’s opinion would result in a rule that would encourage police to enter a home unlawfully and then call for a warrant. So long as the information used to establish probable cause for the warrant is unconnected to the initial entry, such warrantless entries would never affect the admissibility of evidence. Such a rule would not make any sense. It certainly would not do anything to preserve the knock-and-announce rule
I don’t think this decision should bother originalists at all. From my reading, it appears that Justice Scalia’s discussion of societal changes isn’t an attempt to interpret the meaning of the Fourth Amendment. Michigan conceded a violation of the Fourth Amendment; the only issue before the Court is what remedy is appropriate. In determining whether or not to exclude the evidence, Scalia balances the “deterrence benefits” of excluding evidence against the “substantial social costs” of doing the same. The passages you quote above argue that there are already strong deterrents against civil rights violations. Thus the substantial societal costs of the exclusionary rule in this context weigh on the side of admitting the evidence. This is a completely permissible consideration of societal changes that leaves the meaning of the Fourth Amendment untouched.
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How is Scalia’s second point a relavant argument in support of reducing the penalty (not employing the exclusionary rule) for entering pursuant to a warrant without knocking and announcing? It seems like police departments would be extremely unlikely to internally enforce rules that are more restrictive than the precedents set by the Court. While his first point may be compelling, the second point is immaterial if police departments merely toe the line set by the law.
While I really can’t complain about Justice Scalia’s use of non-originalist history to interpret the remedy for a Fourth Amendment violation as I believe originalism is flawed, I will dispute his notion that modern internal police discipline will deter a civil rights violation. Particulary within this context, Justice Scalia is saying that modern police will teach their forces to adhere to the letter of the law and iternally discpline them for a violation. Well, after this case, the letter of the law is the police can violate the knock-and-announce rule without having the evidence suppressed gained pursuant to the violation. Why would the police give stronger internal discipline than a slap of on the wrist for a violation that results in no loss of criminal evidence?
Furthermore, what kind of compensatory damages could a party get when a cop violated the knock-and-announce rule under a 1983 suit? Sure, you could get attorney’s fees, but is the compensation to the plaintiff really enough to have such a suit become a deterrent?
Lastly, is it me, or does this case conflict with the Kyllo case that Justice Scalia himself authored? Justice Scalia exhaulted the privacy rights of a person within their own home in Kyllo so as to bar the police from knowing the temperature levels of person’s house without the technology used in public use. Now, he seems to denigrate a person’s privacy rights in Hudson. Can anyone reconcile the cases for me?
It is an interesting quote, but I don’t think it’s inconsistent with Justice Scalia’s originalism. My guess is that Justice Scalia would say something like:
The exclusionary rule is a judge-made remedy that isn’t really legitimate and it has been justified by policy arguments that were contingent on certain facts. The policy arguments that were made in those cases, however, are no longer true, and are especially not true in this context. So even if we take the exclusionary rule cases on their own terms, they do not justify the exclusionary rule in this case.
I bet he would say it much better than I did though.
This would not be the first time that something has shown up in an opinion for the court written by Scalia that one would not normally expect to see in a concurrence or dissent. From various sources, including the Chief’s book, my understanding is that the Justice writing the opinion prepares an opinion that reflects the majority at Conference. To what extent the view of the Conference trumps the nuance of the Justice’s own view, I don’t know, so I’ve wondered for some time to what extent the author of the majority opinion feels pressured to put in material they would not prefer to put in if their majority was perhaps different.
Where does that passage suggest that the meaning of the Fourth Amendment changes over time?
If the exclusionary rule isn’t mandated by an originalist understanding of the Fourth Amendment – and the rule is purely a judicially created evidentiary rule created to deter police misconduct – I see nothing inconsistent with originalism in assessing the degree to which the rule serves its intended purpose in light of changing societal and legal conditions.
Then again, Fourth Amendment law is far outside my area of practice.
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The problem is that they had a valid warrant. Exclusion of evidence is an appropriate way to make the victim of a constitutional violation whole, when the fact that the police have the evidence *is a result of* the violation. Here, the violation was merely incidental to their getting the evidence.
The real problem is that the Court has yet to take seriously the *dual* functions of a search warrant: First, to assure that the police have the right to search, but just as importantly, to let the citizen KNOW that they have that right. No knock searches routinely create situations where both the police AND the subject of the search have valid reason to believe they are justified in resorting to lethal force.
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Strict adherence to originalism without regard for stare decisis would call for simply overruling Mapp v. Ohio. I do not think it is inconsistent with originalism to recognize that it may be tempered by stare decisis. Both the exclusionary rule and the practice of conducting this kind of cost-benefit analysis for any proposed extension are well-established precedent.
Precedents that give the Constitution a meaning contrary to its original understanding, which certainly includes Mapp, should not be extended, but they do not necessarily have to be overruled.
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As a criminal law practitioner, it was my opinion that the K&A rule should never apply to “violent crimes.” In a drug case, I’ve had too many cop-suspect shootouts to ask them to knock, and then wait 22 seconds before executing the warrant–it would be stupid to, for the most important item is the safety of all of those involved, the defendant included.
The bottom line is, there are enough disincentives built in to deter police misconduct–especially Bivens/1983 actions. I think the majority got it right today.
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Regarding Arvin Tseng’s comment:
Arvin, I think that your argument characterizes the sort of originalism espoused by folks like Jack Balkin. You might call this a sort of meta-originalism.
However, it most definitely does not characterize the approach that Scalia has advocated in his (non-official) writings. In particular, Scalia’s answer to this question
For a textualist, wouldn’t it be okay if the meaning of the fourth amendment changed from time to time?
is a resounding “No”. He says precisely that in his essay “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws” (published in the fascinating book A Matter of Interpretation). Scalia’s contention is that the text means today what it meant then; anything else would be arbitrary and judge-imposed. Similarly, Scalia’s essay clearly contemplates and rejects your way out
Thus the original intention WAS to have a living fourth amendment standard, keyed to the standards of society.
Originalism has been attacked on precisely this ground, actually—some (see Randy Barnett’s essay An Originalism for Nonoriginalists and his discussion of H. Jefferson Powell’s work). But Scalia has never given this argument any weight.
I’m not a lawyer, so the distinctions that other commenters have drawn between the K&A rule and the meaning of the 4th amendment are over my head. But there is no question from Scalia’s writing that he would disagree totally with your rationalization of his decision (again, whether there’s any need for such rationalization is above my pay-grade).
Kent:
I think it’s quite a stretch to say that the exclusionary rule is inconsistent with the original meaning of the Fourth Amendment. Certainly it is not mandated by the Fourth Amendment, but in my view, originalism is not nearly so mindless or brittle as strict construction; just because the Constitution does not mandate does not mean it forecloses. Originalism is not strict construction; it does not command that courts may not invent doctrine to give teeth to constitutional protections, as long as those teeth do not impinge on other constitutional rights, and as long as it is understood that the rule is only an abstraction to protect the right, and that it is the right that controls, not the rule. Thus, a rule will always be subject to balancing tests in a way that a right can never be, and this case is abouot the rule (cf. Scalia’s excoriation of the majority’s balancing test for a right in Maryland v. Craig). To a some extent, this seems to be exactly what Scalia says in the instant case.
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I’m curious about one of the practical effects of Knock and Announce–whether police officers are safer with the policy or without. In the comments above, both views have been stated as being true. Is there any empirical evidence one way or the other?
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Steven,
Whether or not they are, the point should be emphasized that the ruling makes no difference to whether or not the police can or should use the knock-and-announce rule. That question, as the court notes, is settled.