Here is a question for originalists who think that the Supreme Court deviated from the right originalist result in Hudson v. Michigan:
What is the first known case of any court in any country suppressing evidence for failure to comply with the knock-and-announce rule?
I realize that the “past practice” question can be unfair when law enforcement practices have changed, but I gather that concern isn’t applicable here: Warrants are executed today pretty much as they have been executed for hundreds of years. All agree that the knock and announce practice goes back several hundred years. Given that, surely it must be the case that officers in past cases either failed to knock or waited an insufficient number of seconds.
My question is, what is the earliest known case in which a court imposed a suppression remedy in such a case? Please be specific.
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It would seem to me, though a person favoring the decision, that one must travel a great distance into the past in order to find a case at common law that which advocates anything but trespassing charges against the violator for illegal search and seizures. Indeed, Lord Chief Justice Camden, in Entick v. Carrington
19 Howell’s State Trials 1029 (1765), decided that the violators acting under false authority of a warrant drafted by the secratary of state were no different than the common trespasser– and ought to be similarly punished. He also states that this is the view of the 12 Justices of the King’s Bench.
As to the United States, a great case on the issue is People v. Defore, 242 N.Y. 13; 150 N.E. 585, authored by then Judge Cardozo of the NY Court of Appeals. He demonstrates the danger of allowing exclusion to be the proper remedy, and does so in a manner that makes it seem quite clear that this was the only possible determination. He cites numerous cases dating from the state of Mass. to the time of the case in 1926. Cert was denied in this case which seems to demonstrate the court enforcing Adams v. New York, 192 U.S. 585.
It was not until Agnello v. US, 269 U.S. 20, that the court determined that a violation related to a search and seizure required exclusion. Though these issues were not specific to knock and announce, they were arguably of a greater violation–lack of a warrant, and therefore, if the court determined exclusion was not the proper remedy, it’d seem exclusion would not be proper for knock and announce.
The other issue brought up by Judge Cordozo is a difference in the application of Agnello to Federal Authorities rather than State Authorities. As perhaps the strongest cite offered by Cardozo, second to that of Entick is Wigmore on Evidence 2d edition. I do not have access to this, so I am not sure as to exactly what it says.
Boyd v. United States would be the first case involving suppression in this country; it is also, I believe, the first time in the Court’s history that it passed on the propriety of suppression as a remedy. As for earlier antecedants, is not the common law action of replevin a sort of suppression remedy for an unlawful search?
[OK COmments: Did Boyd really involve suppression?]
Perhaps i am wholly wrong, but I thought I remember reading years ago (and forgive me for i have no cite or link to back this up)that the remedy in these situations back in the “old common law days” was actually much more drastic than exclusion of the evidence. It was an outright aquittal. This may have been just an aberration, perhaps some senile old drunken British judge taking the “Man’s home is his castle” idea to an extreme.
I am more interested in how the state courts, such as IL, will handle this decision. Illinois legislature passed a no-knock warrant statute awhile ago which was held unconstitional by our supreme court, relying on the state const. Recently, the IL Sup Ct. decided Caballes, on remand from the high court of injustice, and reversed its previous decision, to keep in “limited lock-step” with the Supremes 4th amendment case law. We shall see how limited that lock step is in the near future with the no -knock issue.[OK Comments: I have never heard of an acquittal remedy. Also, I edited the comment a bit.]