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?
Just thinking out loud here: could a defendant take the testimony obtained in a failed suppression hearing, commence a civil suit, and seek an injunction against a prosecutor demanding that he not use such evidence in any trial. After all, 1983 probably can be used for this, though suppression is usually the remedy. Defendants might have an advantage in this manner, because the police now have an incentive to “tell all” in the criminal context, leaving no issues for the injunction court to resolve as a factual matter.
Two is not quite in line with the court’s reasoning, although you’re right that there are hints of it.
No, the majority suggests that 1983 is the proper place to go to seek remedies for damages, but that _under the facts here_ there’s no reason to apply exclusion.
I think Scalia is advocating a retrospective, post-hoc examination of the guilt of the individual (“balance the needs of society…” against the harm to the individual defendant), and when it’s clear that the individual was innocent, then there could be an exclusionary effect.
Or if it was a really egregious violation, like the police came in guns blazing.
Or if he feels like it. But he doesn’t clearly close the door on #1, so I refuse to accept #2, which would have required something more explicit from him.
The 1983 injunctions route might encounter Younger absention issues raised unless the 1983 remedy was pursued in state court only. I have not looked at abstention issues for a few years, so perhaps someone else knows more about that.
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At least some lower courts are likely to interpret the holding under #2, no suppression. So for those defendants it is for the time being irrelevant whether #1 might have been Scalia’s intent. And it is the rare defendant who can afford to mount a civil suit for damages resulting from a violation, much less is there any assurance that said defendants would prevail if they did.
Knock-and-announce is pretty much toast.
What are the damages if they have a valid warrant, a broken door? Forget it. The problem is the courts have no authority over the police, hence, the arkward exclusion rule. In the case of the misuse of a warrant, could the officers be held in contempt and fined? Don’t hold your breath.
I think one of the key problems with the opinion is that it doesn’t make clear the extent to which the knock-and-announce rule may still be enforced by exclusion. The conclusion I find most obvious is that moving forward there will not be a remedy of exclusion except *perhaps* in the most egregious cases of abuse.
Also, given the Court’s reliance upon §1983 litigation as a preferred remedy, one is forced to wonder if by the same logic the exclusionary rule and fruit of the poisonous tree doctrine could be done away with altogether, in *all* cases of illegal search. “Let it all in at trial! They’ve got a civil remedy available.”
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This may be the former defense attorney in me, but I think we have to distinguish between search warrants and arrest warrants. To me, the nub of the opinion — stripped free of all the indefensible dicta about the exclusionary rule in general — is that this is a fairly straightforward application of the inevitable discovery doctrine. Since the items were the subject of a valid search warrant, they would have been discovered no matter how the police gained entry. I agree wholeheartedly with this result.
But the same would not necessarily have been true had the police been executing an arrest, rather than a search, warrant. Consider: police obtain a warrant for the arrest of Smith for the murder of Jones. When executing the warrant at Smith’s abode, they fail to knock and announce, and instead just barge in. In the bedroom, they see Smith making love to a woman who turns out to be none other than Mrs. Jones. At trial, the prosecution, hoping to prove that Smith’s motive for the killing was his illicit affair with Mrs. Jones, will seek to elicit from the arresting officers what they saw in Smith’s bedroom. The defense seeks to suppress this testimony on the ground that, had the police knocked and announced, Smith would have extricated himself from Mrs. Jones’ embrace, answered the door, and given himself up, and the police never would have known about the affair. Why shouldn’t he win? For one thing, unlike the violation in Hudson, the violation here truly was a but-for cause of the discovery of the evidence. For another, we have a violation that goes to the heart of why we have the knock-and-announce rule: to further privacy interests. (One can imagine this scenario with less salacious items of evidence, such as physical objects located in plain view or within the “grabbable area” that would not have been had the arrest been made at the doorway.)
This is making the rounds on criminal defense listservs:
This is making the rounds on criminal defense listservs:
Knock, knock.
Who’s there?
Not the police. We don’t have to.
On a more serious note, some criminal defense lawyers are suggesting that each motion to suppress should be accompanied by a 1983 action. Even if you lose the motion to suppress, you can win the 1983 action. Damages for the client might be nominal, but the local police will have to pay the attorneys fees for the action. From the client’s point of view, the pressure of a civil suit would give the defense another card to play in plea negotiations.
The 1983 attorneys fees give appointed criminal defense counsel an extra incentive to file. In the 1983 case, the appointed criminal defense lawyers might be able to recover from the police many multiples of the fee the court pays for the criminal case. (In my area, I pay a higher hourly rate for a plumber than the county pays appointed counsel. And the plumbers won’t accept fee caps.)
If more defendants start filing civil suits, Hudson may do for cops what Blakely did for criminal defendants.