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Remedies for Knock-and-Announce Violations
in Federal Court After Hudson v. Michigan

In one of the most controversial criminal law cases of the recently-completed Supreme Court Term, Hudson v. Michigan, the Supreme Court held that the Fourth Amendment remedy for violation of the knock-and-announce rule is a civil suit instead of suppression of the evidence obtained in the search. An exchange I had with counsel for Hudson, lawprof David Moran, brought up a very intriguing question: Is “the Hudson rule” that suppression is not a remedy for knock-and-announce violations applicable in federal court? After giving it some thought, my best guess — somewhat to my surprise — is that the answer is “no.” If I am right, suppression is still the appropriate remedy for knock-and-announce violations in federal court.

Here’s the relevant background. The practice that agents knock and announce their presence before executing a warrant (at least absent exigent circumstances) goes back to the common law. When Congress first codified the federal search warrant process as part of the Espionage Act in 1917, it was understood to have codified the rule in what is now found in 18 U.S.C. 3109. The statute states:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

(emphasis added)

It has generally been understood that violations of 18 U.S.C. 3109 can lead to suppression in federal court as a matter of statutory law. The Supreme Court strongly hinted at it in a 1958 case, Miller v. United States, that involved a local DC search warrant, and also seemed to embrace suppression as a statutory remedy in a 1968 federal case, Sabbath v. United States. To be honest, Sabbath and Miller are sort of weird cases. The authors of the two cases, Justices Brennan and Marshall, were not terribly clear about the source of authority they were applying when they suppressed evidence. But lower federal courts have reasonably understood Miller and Sabbath as resolving that the statutory remedy for federal knock-and-announce violations is suppression. See, e.g., United States v. DiCesare, 765 F.2d 890 (CA9 1985); United States v. Hidalgo, 747 F. Supp. 818 (D. Mass. 1990).

Of course, this statutory regime left open the question of the remedy for state violations of state knock-and-announce statutes, at least where the state law did not provide for a suppression remedy as a matter of state law. In a 1995 state case, Wilson v. Arkansas, the Supreme Court held for the first time that the knock-and-announce rule has some Fourth Amendment relevance; in the Court’s phrase, knock-and-announce “forms a part of the Fourth Amendment reasonableness inquiry.” So Wilson raised the prospect that statutory suppression remedies at the federal level (and a state law remedy some states) would be supplemented by a federal constitutional suppression remedy. It would really only make a difference in the states that had not added a remedy as a matter of state statutory or state constitutional law, but it obviously would matter for those states.

As we now know, that didn’t happen: the Court ruled in Hudson v. Michigan ruled that the although the knock and announce rule forms a part of the reasonableness inquirty (from Wilson), the suppression remedy is unavailable as a matter of federal constitutional law. As best I can tell, however, Hudson left the federal statutory suppression remedy in place: the Court not only fails to overrrule Miller and Sabbath, but only really mentions them in passing in the course of noting that they are statutory cases. Here’s the passage from part II of Hudson, which introduced the basics of the knock-and-announce requirement:

The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one. See Wilson v. Arkansas, 514 U. S. 927, 931-932 (1995). Since 1917, when Congress passed the Espionage Act, this traditional protection has been part of federal statutory law, see 40 Stat. 229, and is currently codified at 18 U. S. C. §3109. We applied that statute in Miller v. United States, 357 U. S. 301 (1958), and again in Sabbath v. United States, 391 U. S. 585 (1968). Finally, in Wilson, we were asked whether the rule was also a command of the Fourth Amendment. Tracing its origins in our English legal heritage, 514 U. S., at 931-936, we concluded that it was.

We recognized that the new constitutional rule we had announced is not easily applied. . . .

As I read this section, it seems to be saying that Miller and Sabbath (which both applied a suppression rule) were statutory cases, while the first state case, Wilson, introduced a “new constitutional rule.” In that light, it’s not surprising that the rest of the Hudson opinion effectively ignored both Miller and Sabbath: they are statutory cases applying a statutory suppression remedy, and they were not implicated by a constitutional analysis applicable in state court.

In our earlier exchange, Professor Moran, who argued the Hudson case for the defendant, takes the position that I am wrong. He thinks that Scalia’s majority opinion in Hudson was just being really sloppy, and effectively overruled Miller and Sabbath without saying so or even recognizing the tension between the Miller and Sabbath cases on one hand and Hudson on the other.

This seems relatively unlikely to me for two reasons. First, to Scalia the difference between a statutory remedy and a constitutional remedy is critically important. I don’t think he would describe two cases as statutory cases and then expect us to conclude that the cases could be implicitly overruled by a subsequent analysis about constitutional remedies. The more natural explanation is that the remedy in Sabbath and Miller wasn’t discussed because it just wasn’t relevant.

The second reason I disagree with Professor Moran didn’t exist until after our initial exchange. On the penultimate day of the Term, about two weeks after Hudson, the Supreme Court touched on the continuing vitality of the federal statutory remedy for knock-and-announce violations (albeit obliquely) in Sanchez-LLamas v. Oregon. Sanchez-Llamas concerned the remedy for violations of the Vienna Convention on Consular Relations following the arrest of a foriegn national by Oregon state police officers. The defendant argued that the Court should suppress the evidence obtained against the defendant on the basis of the Convention violation.

In an opinion by Chief Justice Roberts, the Court ruled that the Convention did not impose a suppression remedy. The defendant, Sanches-Llamas, also suggested that the Court could impose a suppression remedy under the Court’s supervisory authority. The Court concluded that it could not do so, as it lacks supervisory power to impose a suppression remedy in state court. In the course of this discussion, the Court recognized that the suppression remedy imposed in the Miller knock-and-announce case from 1958 (which involved a local DC arrest) is generally understood to derive from supervisory powers over evidence admitted in federal courts:

For their part, the State of Oregon and the United States, as amicus curiae, contend that we lack any such authority over state-court proceedings. They argue that our cases suppressing evidence obtained in violation of federal statutes are grounded in our supervisory authority over the federal courts-an authority that does not extend to state-court proceedings. Brief for Respondent in No. 04-10566, pp. 42-43; Brief for United States 32-34; see McNabb v. United States, 318 U.S. 332, 341, 63 S.Ct. 608, 87 L.Ed. 819 (1943) (suppressing evidence for violation of federal statute requiring persons arrested without a warrant to be promptly presented to a judicial officer); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (suppressing evidence for violation of similar requirement of Fed. Rule Crim. Proc. 5(a)); Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (suppressing evidence obtained incident to an arrest that violated 18 U.S.C. § 3109 ). Unless required to do so by the Convention itself, they argue, we cannot direct Oregon courts to exclude Sanchez-Llamas’ statements from his criminal trial.

To the extent Sanchez-Llamas argues that we should invoke our supervisory authority, the law is clear: “It is beyond dispute that we do not hold a supervisory power over the courts of the several States.” Dickerson v. United States, 530 U.S. 428, 438, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); see also Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension”). The cases on which Sanchez-Llamas principally relies are inapplicable in light of the limited reach of our supervisory powers. Mallory and McNabb plainly rest on our supervisory authority. Mallory, supra, at 453, 77 S.Ct. 1356; McNabb, supra, at 340, 63 S.Ct. 608. And while Miller is not clear about its authority for requiring suppression, we have understood it to have a similar basis. See Ker v. California, 374 U.S. 23, 31, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

Of course, this is hardly a ringing endorsement of the statutory suppression rule in Miller. But to me it suggests that the basis of Hudson (the Fourth Amendment) and the basis of the suppression remedy in Miller (supervisory authority) are distinct, and that the pre-Hudson law on remedies for federal knock-and-announce violations would seem to survive Hudson. Perhaps the current Court would explicitly overrule those cases if given the chance, but my sense is that for now those cases remain good law in federal court.

The best counterargument against this view, in my opinion, is Chief Justice Rehnquist’s opinion in United States v. Ramirez. Ramirez suggests that 3109 and the Fourth Amendment are very similar; the meaning of the statute should be informed by the requirements of the Fourth Amendment.

§3109 codifies the exceptions to the common-law announcement requirement. If §3109 codifies the common law in this area, and the common law in turn informs the Fourth Amendment, our decisions in Wilson and Richards serve as guideposts in construing the statute. In Wilson v. Arkansas, 514 U.S. 927 (1995), we concluded that the common-law principle of announcement is “an element of the reasonableness inquiry under the Fourth Amendment,” but noted that the principle “was never stated as an inflexible rule requiring announcement under all circumstances.” Id., at 934. In Richards v. Wisconsin, 520 U.S. ___ (1997), we articulated the test used to determine whether exigent circumstances justify a particular no-knock entry. Id., at ___ (slip op., at 8 ). We therefore hold that §3109 includes an exigent circumstances exception and that the exception’s applicability in a given instance is measured by the same standard we articulated in Richards.

Based on Ramirez, you could argue that the remedies rule for the Fourth Amendment automatically applies to Section 3109. But I don’t think this is persuasive. The Ramirez Court didn’t hold that Section 3109 and the Fourth Amendment are coextensive, or that every interpretation of the knock-and-announce requirement as a constitutional matter must also be read into the statute. Rather, the Court held that both Section 3109 and the Fourth Amendment should be read as incorporating the same common law requirements and common law exceptions. But the Hudson case wasn’t trying to divine the common law requirements of the knock-and-announce rule; rather, it was applying the modern Fourth Amendment balancing test for when a constitutional violation should lead to suppression. I don’t see why the 1917 statute should be read as incorporating this modern balancing test, or why the result of this balancing in Hudson should be read as automatically cutting back on the supervisory power of the Court from Miller as suggested after Hudson in Sanchez-Llamas.

In our e-mail exchange, Professor Moran offered to bet me $500 that no appellate court would buy this argument. I didn’t take the bet, as this isn’t my area. But even though I didn’t take the bet, it seems to me that the argument is pretty strong. Maybe I was dropped on my head as a child and I’m just missing something, but it seems to me that Hudson left the federal statutory suppression remedy intact.