Knock and Announce Decision
A commenter asks what I think of “yesterday’s 5-4 supreme court decision dispensing with the requirement of knocking before executing a search warrant.”
Well, the first thing I think of it is that it did no such thing.
The decision makes no change to the rule that the Constitution generally requires police officers to knock and announce their presence before entry. It simply holds that, if officers violate that rule, the remedies available to the homeowner do not include the suppression of relevant evidence at a criminal trial.
The “knock and announce” rule is still in place. Since police officers don’t like to be sued, I think that they will continue to knock and announce. When they believe that doing so will pose a problem of officer safety or destruction of evidence, they will ask for a judge to authorize a “no-knock” warrant — something they already had the right to do.
All the decision means is that I won’t have to hold hearings about whether the cops waited 10 seconds or 20. I think it’s a good ruling. But then, I’m not a big fan of the exclusionary rule to begin with.
I agree that this is a good decision. I never saw the sense in determining whether notice had been given, based on whether it was 10 seconds or 20.
sharon (03e82c) — 6/16/2006 @ 7:42 amyou see constitutional issues from the perspective of whether or not they trouble you at your workplace?
assistant devil's advocate (24154e) — 6/16/2006 @ 8:15 amthe exclusionary rule is the only credible restraint on police officers who view the bill of rights as making trouble for them, as you do. it is intellectually dishonest to suggest that civil liability on the part of the officers will deter violations with equal force. it is also anti-conservative. conservatism is about the liberty of individuals versus the power of the state. as a real conservative, i fear an all-powerful, unrestrained police force more than i fear some guy with drugs in his house.
i ask you again, have you ever met an authoritarian, statist, pro-police/prosecution supreme court decision you didn’t like because it went too far in curtailing the rights of citizens, and if so, which ones?
The exclusionary rule is a disaster — if one is interested in a criminal trial as a search for the truth and a quest for justice.
As with many areas of law in the post-Warren Court era, the remedy imposed by the Supreme Court is far more onerous than the conduct it seeks to discourage.
The reference Patterico makes to his workplace is simply acknowledging that as DAs, we see innocuous mistakes — not malicious misconduct — by police resulting in a sudden-death remedy, one that serves no good purpose, other than to reduce suppression hearings to exercises in how many angels — or lawyers — can dance on the head of a pin.
Mike Lief (e9d57e) — 6/16/2006 @ 8:30 amYou clearly don’t know many police officers if you don’t think that the prospect of being sued for violations of civil rights isn’t a big deterrent. Even if it weren’t a deterrent for individual officers it is for their departments who spend a great deal of time and effort in enforcing internal discipline to make sure that civil rights violations are deterred.
This is one of the reasons the Supremes gave for not applying the exclusionary rule for knock-notice violations.
How can it be intellectually dishonest to assert that?
Your assertion that its anti-libertarian is also suspect. Police must still get warrants to enter a home and can only do so when they convince a judge there is evidence of criminal activity there – which is exactly what the police in Michigan did in this case. So how are they all-powerful, and unrestrained?
And when there are violations in the manner of entry, why should the criminal they are investigating get a “Get out of jail free” card? Particularly when a judge had already authorized the seizure of the evidence to prove that crime.
No prosecutor I know views the Bill of Rights as making trouble for them. On the other hand many see the release of a criminal because of the application of the Exlusionary Rule as a great harm to society that should only be applied sparingly (and it so happens that the highest court in the land agrees).
CStudent (590890) — 6/16/2006 @ 8:40 amUnless you have a mat in front of your door that says “WELCOME’
Gbear (95d12a) — 6/16/2006 @ 9:18 amCStudent, I should know that I am treading in treacherous waters when I comment about the law here since I’m not an attorney. Actually, in the other thread about this, it looks like assistant devil’s advocate is better capable of defending my position than I am.
But is this not judicial activism? I don’t see why not.
Psyberian (dd13d6) — 6/16/2006 @ 9:19 amUm, make that “in this thread” instead.
Psyberian (dd13d6) — 6/16/2006 @ 9:21 am“But is this not judicial activism? I don’t see why not.”
I would think not, since this WAS the way the law was conducted before the misguided Warren courts. BTW, why are liberals only worried about “judicial activism” when it strikes against them?
sharon (03e82c) — 6/16/2006 @ 9:38 am…this WAS the way the law was conducted before the misguided Warren courts.
I doubt that seriously. Police were just barging in without even knocking before then?
…why are liberals only worried about “judicial activism” when it strikes against them?
Highlighting hypocrisy is why. It seems to me that the phrase “judicial activism” is used only when it goes against conservatives.
Psyberian (dd13d6) — 6/16/2006 @ 9:48 am(Sigh) ‘Hate to say it, but even publius at Legal Fiction is defending Scalia’s opinion on this. http://lawandpolitics.blogspot.com/2006_06_01_lawandpolitics_archive.html#115042969255913681
Psyberian (dd13d6) — 6/16/2006 @ 9:56 am“I’m not a big fan of the exclusionary rule to begin with.”
Neither is Europe- the European Court of Human Rights (or whatever it is called these days) specifically found against the exclusionary rule.
How come we never import THAT type of foreign law to our own?
I agree with several of the other commentators- the solution to violations of the 4th Amendment is not exclusion of relevant evidence from a criminal trial, it is, like all other unconstitutional actions by an official (police brutality, for example) a 1983 lawsuit against the department and the individual officers. Period.
And yes, Psyberian, prior to the Warren Court, police officers essentially never announced their presence until they were already breaking the doors down.
Angry Clam (fa7fff) — 6/16/2006 @ 10:05 amThat surprises me Angry Clam, since one of the main reasons we fought with England was because of their harassing soldiers:
Hmm… To give “consent [by] the owner.” Now we’re talking. How can the police barge in without knocking and yet get consent first? I would think that it would be pretty much impossible. See, I’m just more originalist than you conservatives are.
Psyberian (dd13d6) — 6/16/2006 @ 10:55 amYour quote discusses the quartering of soldiers, correct? That’s not the 4th Amendment, which is about unreasonable searches and seizures.
sharon (03e82c) — 6/16/2006 @ 11:15 amHow many police officers have EVER been successfully sued for conducting an illegal no-knock raid? (Not even convicted of a crime, just sued.)
According to Breyer’s dissent, not a single one in Michigan, at least.
This case has effectively taken away the only detterent we had against cops illegally busting down doors in paramilitary raids. Raids that often have tragic results.
Carlos (ca792b) — 6/16/2006 @ 11:15 amAn originalist would hardly equate “quartering” with executing a search warrant.
eddie haskell (51058c) — 6/16/2006 @ 11:16 amasst. devil’s adv. and Psyberian, consider that the Court only said the application of the exclusionary rule is not an appropriate remedy for a no-knock entry; it did not suggest that the exclusionary rule wouldn’t be applied if warrantless search is conducted under circumstances in which a warrant is required — that is, the court’s ruling applies only to circumstances in which the warrant is lawful and the search is within the scope of the warrant, but the cops fail to give the perps a fair opportunity to flush the contraband before it can be found.
TNugent (6128b4) — 6/16/2006 @ 11:23 amSharon and Eddie, this was the gauge they used to make our Bill of Rights. It doesn’t matter that they were not police and it doesn’t matter that the soldier’s were “quartered” there. Also, back then when you let someone in your home, it was considered rude not to ask them to stay (much more so than today at any rate). So it was basically equivalent. But it doesn’t matter anyway, since the soldiers were what they had in mind when creating our now trampled Bill of Rights.
But the main point I’m making is: this country was founded, in large part, to be free from police harassment. You conservatives are giving that up. Be brave and have freedom.
Psyberian (dd13d6) — 6/16/2006 @ 11:29 am“Also, back then when you let someone in your home, it was considered rude not to ask them to stay (much more so than today at any rate).”
I didn’t see the part in the opinion that stated you have to serve the cops lunch…
sharon (03e82c) — 6/16/2006 @ 11:50 amI think the ruling is a disgrace. It is a flat slap in the face to every citizen who thought he had a Fourth Amendment protection.
The following is a must read.
http://www.cato-at-liberty.org/2006/06/15/the-fourth-amendment-as-legal-fiction/
RJN (9e856d) — 6/16/2006 @ 12:03 pm#14 – Carlos, Even an unsuccessful law suit is a PITA. Depending on your supervisor you may never live it down. But it is better to be judged by 12 than carried by six.
Gbear (95d12a) — 6/16/2006 @ 12:26 pmThe exclusionary rule was an invention of the Warren Court, not something contemplated by the founders, so can we dispense with the hyperbolic nonsense about the opinion permitting encroachments on constitutional guarantees? Sure, excluding evidence obtained through unreasonable searches or siezures — please, let’s at least pay some attention to the language that is actually in the fourth amendment — might be an appropriate remedy, but the argments made here so far, including the historical grab-bag that includes off-point references to quartering of soldiers (there’s another amendment that deals with that one), doesn’t begin to justify requiring a knock/announcement as a necessary element of a reasonable search. The invention of indoor plumbing has created an exigency that makes the knock and announce requirement unreasonable in many circumstances — such as every time the contraband is flushable. This ruling is long overdue.
TNugent (6128b4) — 6/16/2006 @ 12:35 pmThe knock on the door is the Police State announcing itself.
RJN (9e856d) — 6/16/2006 @ 12:44 pmPolice States don’t ever knock, RJN, and they don’t ever have to get search warrants.
TNugent (6128b4) — 6/16/2006 @ 12:54 pm“Sharon and Eddie, this was the gauge they used to make our Bill of Rights. It doesn’t matter that they were not police and it doesn’t matter that the soldier’s were ‘quartered’ there.”
It matters a huge deal.
The specific problem was that soldiers would show up, kick in the door, and move in to your house. You were under an obligation to feed, clean, and otherwise provide for such soldiers.
The local constabulary, in both colonial and post-Revolutionary times, never knocked.
There was a difference not only in the character between the soldier and the constable, but also in the actions that each of them took, which is why there is a separate amendment to deal with each of them.
Thinking that police have always politely knocked and annouced their presence before entering a building under a valid warrant is quite silly.
Angry Clam (fa7fff) — 6/16/2006 @ 12:59 pmTodays police aren’t you Grandpa’s police. The local police today are arming themselves with military weapons, including armored personel carriers, and attack mindsets.
Our beautiful land of freedom is swarming with, so called, SWAT teams that will kill you in your home if you mistake them for an intruder. Their tolerance for respecting your rights grows less every day.
RJN (9e856d) — 6/16/2006 @ 1:23 pmRJN, don’t forget the black helicopters. They have black helicopters, too. You know, the ones you can’t hear until they’re on top of you — or when you’re not wearing your tinfoil hat (I forget which).
TNugent (6128b4) — 6/16/2006 @ 1:29 pmTNugent: Get some class.
RJN (9e856d) — 6/16/2006 @ 1:52 pmPatterico, if you truly believe that civil suits are sufficient to prevent police from ignoring the knock rule when it inconviences them:
Please provide an example of a successful civil suit against an officer who violated the rule.
Or perhaps we should believe that such suits will suddenly _become_ effective, because the Supreme Court mentioned them?
Dave (6001a6) — 6/16/2006 @ 1:55 pmOk, RJN, the the tinfoil hat comment was a bit more than you deserved and for that I apologize. But your silly police state comments have become increasingly shrill and hyperbolic as the thread has become longer — which seems a bit out of character for you given some of your other positions. Hyperbole and shrillness sometimes gets rough treatment. Deal with it (apart from the tinfoil hat remark, of course).
TNugent (6128b4) — 6/16/2006 @ 2:02 pmRJN, my previous supposition that your remarks were out of character must have been based on an incorrect recollection — I must have confused you with someone else — you know, someone who doesn’t think Reynolds Metals Co. is a haberdasher. I paid a brief visit to your website (the link you provided). But maybe I’m reading too much into your entries about what you refer to as the “Hoaxicaust” and, in particular, this quote from your March 18, 2006: “Thanks to David Irving, Real History will one day eventually win through . . . ” Nah. I think I had it right the first time. I’m retracting my apology and giving you back the tinfoil hat — you’ve earned it.
TNugent (6128b4) — 6/16/2006 @ 2:19 pmI guess I’d feel better about minimizing or getting rid of the exclusionary rule if there were some way that a noncriminal citizen could effectively be compensated for being the victim of various jackbooted public servants who see “dynamic entry” as a preferred way of service.
This case doesn’t mean much, true. The difference between what these particular cops did and the “soft knock” followed by doorkicking isn’t much of a muchness.
Joel Rosenberg (b6087d) — 6/16/2006 @ 2:31 pmcivil suits are sufficient to prevent police from ignoring the knock rule when it inconviences themYeah, I also would like to see some evidence of this. I’m not a fan of the exclusionary rule either but it seems to me that, practically speaking, the bar on civil suits against officers is currently so high that it’s meaningless. Admittedly, it would’ve required some dicta to address that but it’s hard to take the implications of the Court’s argument seriously when Scalia apparently thinks that American police departments are already mere moments from being caught up into heaven.
jinnmabe (cc24db) — 6/16/2006 @ 2:36 pmTNugent: Would you want for us what Austria offers? Would you send a man to prison for telling the truth, as he saw it, about the holocaust?
You don’t, of your own, know squat about the holocaust. Here is the website of Arthur Butz, a professor at Northwestern University (Electrical Engineering. He does, of his own, know squat about the subject.
http://pubweb.northwestern.edu/~abutz/
RJN (9e856d) — 6/16/2006 @ 5:56 pmA 1983 suit? Maybe in the 9th Circuit.
But in states within the 4th, 5th, or 11th Circuits, Section 1983 is pretty much a dead letter unless there’s a dead body.
Geek, Esq. (98b2cc) — 6/16/2006 @ 8:03 pmRJN, I wouldn’t want to send anyone to prison for being a nutter, or even for speaking or writing said nutter’s nuttiness — not for Holocaust denial and not even for claiming that Bill Clinton is the AntiChrist. Guess what? That’s what the law is here in the US — that should be of great comfort to someone like yourself.
TNugent (551e91) — 6/17/2006 @ 12:37 pmAngry Clam, check this out:
And this:
If “knock and announce” is “ancient,” are you sure that it wasn’t done here in the U.S. before the Warren court’s rulings?
Also, there are already provisions that circumvent that rule when for example, the evidence might be disposed of. So why take the teeth out of the rule altogether?
Psyberian (dd13d6) — 6/17/2006 @ 2:36 pmTNugent: You have great argumentation skills. Nutter is a powerful response. Piss off.
RJN (9e856d) — 6/17/2006 @ 3:28 pmRJN says
Our beautiful land of freedom is swarming with, so called, SWAT teams
Yep..and for two weeks the SWAT teams accompanied my paramedic daughter’s ambulance on every call when a vicious local gang put word out on the street they wanted to kill cops and they’d start by seizing firemen and paramedics answering bogus 911 calls. Thank GOD for SWAT.
What is it — the old doughnut-eating Wiggins that was a point of ridicule in the past and now the contemporary tactical-trained cop is derisively put down as somesort of warmongering, jackbooted out-to-kill civilian robocop?
Excuse me, but what the heck do you want?
Darleen (81f712) — 6/17/2006 @ 8:24 pmWe are not faulting SWAT teams for doing what they were intended to do, we are faulting SCOTUS for removing constraints from them. The police need constraints; they have proven this time after time.
See Radley Balko’s blog for an unrelenting look at how police nearly always choose to cover up mistakes, and disguise wrongful deaths.
http://www.theagitator.com./
RJN (9e856d) — 6/18/2006 @ 7:10 amWarrants, for the most part, are a rubber-stamp document which shields police from any further responsibility. Cherry-pick a judge, get a signature. Doesn’t matter if “the goods” weren’t there, the insulation works, and now, the cops can pretty much do what they want. Any plea agreement will no doubt include some kind of probable cause and a civil waiver.
Now, in regard to a police officer being “inconvenience” by a lawsuit, I imagine they get paid, their lawyers get paid, and everyone makes money but the civil lawyers, who, of course, won’t take the case.
Knock and announce should be viewed as more of a protection for police officers, as people tend to get shot who break into a house without bothering to mention who they are or what they are doing there. Witness the BATF in Waco.
Ed C:\> (d72d01) — 6/18/2006 @ 10:33 am“See Radley Balko’s blog for . . .”
I had a hard time getting past that.
(If the guy would correct his mistakes when explicitly notified of them, it would be a different matter. Since he doesn’t, you can’t really trust what he says.)
Patterico (50c3cd) — 6/18/2006 @ 10:52 amJury nullification is one of the pillars of a free society. Yes. Strange, but true. A jury of free people standing against the hired guns of government
is a most welcome, and assuring concept.
In the O. J. Simpson case, the most famous example of nullification we will likely see, the judge facilitated it. Judge Ito is the one who cleared the jury of members who would stand against the jury forewoman.
RJN (9e856d) — 6/18/2006 @ 1:49 pm