Cato’s Mark Moller on Hudson v. Michigan

Hudons v. Michigan was a case that tested the validity of no-knock raids. This case was recently decided by the Supreme Court and our Constitutional Rights have taken another loss yet again.

In Hudson, the cops broke the rule. They announced. They didn’t knock and they didn’t wait. So what’s the remedy? The Court’s answer (lawyerly “ifs,” “buts,” and “maybes” aside) boils down to: There is no remedy. Or, perhaps, more accurately: We don’t care if there is a remedy.

The traditional remedy for Fourth Amendment violations is suppression of evidence obtained as a result of the violation (the exclusionary rule). The best reading of Hudson is that exclusion is never, or very rarely, appropriate if police don’t knock and announce.

Suppression isn’t needed as a deterrent, says Scalia, because, unlike the bad ol’ days when Justice Scalia was a young’un, we can assume that in our enlightenend modern legal system, civil liability will be an adequate deterrent. (I oversimplify only slightly.) No empirical evidence is provided for this claim. The evidence that does exist — such as my Cato colleague Radley Balko’s study of abusive warrant service by militarized police — goes the other way.

The result: An originalist constraint on police entry is recognized on paper, but left unenforced as a matter of breezy, factually unsupported judicial policy that would make even Justice William O. Douglas blush. As Justice Breyer says, the majority’s argument is, in essence, “the [knock-and-announce requirement] is fine, indeed, a serious matter” — wink, wink — “just don’t enforce it.”

Rigths grounded in originalism backed with real remedies: That’s an interpretive method with the courage of conviction in the outcomes it produces. It’s an interpretive method that forces clear, serious judicial thinking because it doesn’t shrink from the consequences of interpretation. Scalia’s opinion, by contrast, is “let’s pretend originalism” — a Potemkin fidelity to the old ways, robbed of any force by a deceptive, lawyerly slight of hand.

Great, so evidence found in no-knock raids is just fine. Technically, these kinds of searches are illegal and the usual response by the courts is: sorry the evidence isn’t admissable in court. The benefit to society at large is: the cops have to play by the rules.

Think about that last one for a few minutes. It says, “Playing by the rules is no longer necessary. Want to use more no-knock raids? Go right ahead.” The problem is that the police, like the rest of us, make mistakes. Sometimes these mistakes result in very bad outcomes which Radley Balko has documented (1, 2, 3, 4, 5, 6, 7, 8, 9, 10) The benefit of getting the police to “play by the rules” protects us all. Weakening the incentives to have the cops play by the rules puts all of us in more danger. First we had Kelo now Hudson. Pretty soon the only thing we’ll be “free from” are a couple of gay guys getting married.

UPDATE:
For a dissenting view, see James Joyner’s post Knock and Announce Not Subject to Exclusionary Rule

FILED UNDER: Law and the Courts, US Politics, , , , ,
Steve Verdon
About Steve Verdon
Steve has a B.A. in Economics from the University of California, Los Angeles and attended graduate school at The George Washington University, leaving school shortly before staring work on his dissertation when his first child was born. He works in the energy industry and prior to that worked at the Bureau of Labor Statistics in the Division of Price Index and Number Research. He joined the staff at OTB in November 2004.

Comments

  1. pinky says:

    My immediate reaction to this was “There are going to be a lot of shootings.”Take this (not unreasonable) scenario: I have just gotten out of the shower and am getting dressed in my bedroom while listening to my iPod. Police (having gone to the wrong house, or not) yell “Police, open up” but I can not hear them. They do not knock, so there are no vibrations indicating that they are desirous of entry. They kick down the door and charge in. Hearing the door get kicked open, I get my gun and come out the door to see 4-5 ninja clad armed strangers rushing me. Somebody is going to be hurt or killed, and as they have vests it will most likely be me.

  2. Eric J says:

    Perhaps the ACLU or other civil-liberties organizations would be willing to bankroll civil-rights and false-arrest lawsuits against police who carry out no-knock raids, particularly when no crime has been permitted. That seems to me to be the proper route for punishment of the police in these cases – there is no public good served by excluding evidence found in these raids. It will not encourage fewer no-knock raids, just more testilying about whether the police knocked or not.

  3. RA says:

    PLAYING BY THE RULES MY A**. These so called “rules” we invent by ACLU judges out of hole cloth. These people want Americans overrun by felons, chid molesters, thieves and murderers.

    Its time to stand up to the criminals at the ACLU and replace judges who love to see innocent Americans victumized by their urban terrorist friends. Its time we get an innoculation for ACLUitis. Frankly, people who don’t understand this are either simpltons or outright evil.

  4. Steve,

    The point you miss is that the exclusionary rule is not the only possible remedy. We have tried it for about 92 years. Contrary to cato@liberty, the exclusionary rule was not original with the constitution. We still have problems with police not following the law (as you point out). So the solution is to keep suppressing the truth (which is what excluding the evidence does) and not try anything else? What part of “its not working and maybe we should try something else” are you having trouble understanding. It may be that civil liability turns out to also not be a deterrent. But how do we know? This is the court looking at a rule that isn’t in the constitution, meant to help foster compliance with what is in the constitution, recognizing that the one solution being applied (exclusion) isn’t working and suggesting other remedies be tried. This is the court trying to rectify mistakes the court has made in the past.

    But lets look at the examples you cite.

    1) “Last month a drug raid by the Horn Lake Police Department, which entered the wrong home, resulted in an elderly couple being beaten and hospitalized”

    I’m sure the elderly couple were happy to have any evidence suppressed, except they were innocent and so there was no evidence to suppress. So the exclusionary rule didn’t stop the police or help the couple.

    2) “A six-agency illegal drug task force on Monday initially broke into the wrong apartment and handcuffed an innocent couple as they were preparing to retire for the night. ”

    Yet another coup for the exclusionary rule. So far the evidence you are citing sure seems to call out for some other solution than excluding the evidence.

    3) “But this case is outrageous not only because of the actions of one particular police officer, but because of the policies in place that led to Culosi’s death.”

    So maybe the police chief might have a different view on policies if the penalty was his personal liability rather than excluding evidence (which only helps the guilty).

    4) “An unidentified elderly Horn Lake couple were hospitalized today after police burst into their home thinking it housed a methamphetamine laboratory.”

    Lets just take the whole, exclusionary rule isn’t stopping the police or helping the innocent as read.

    5) “A “concerned citizen” tips cops off that a horticulturist is growing marijuana in his home. Without verifying, the police send a SWAT team, which busts open the guy’s door, and puts a gun to his hand while they search his home. They ask important questions, like “what do you plan to do with those cantaloupe and watermellon plants?””

    I suspect they mean ‘gun to the head’, but this doesn’t suggest alternatives are needed?

    6) “They kicked open the door, and stormed the house with assault weapons, armor, and black ski masks. They did have the courtesy to dispense with the concussion grenade.”

    Ah, here is someone the exclusionary rule could possibly help. But there is no mention of excluding the evidence because there is no mention that the search was found unreasonable. Great public policy questions are raised about when and where SWAT teams should be deployed. Lets have that public policy debate. But this isn’t a case about excluding evidence.

    7) “But it isn’t the most likely explanation. Uniformed or not, announcement or not, when you break into someone’s home in the middle of the night, their first reaction is going to be self-defense.”

    And this has to do with the exclusionary rule how? Think about it. You are citing cases that don’t meet your standards. So the idea that the exclusionary rule is stopping unreasonable police search tactics doesn’t seem to be working. How about we try some other remedy. Nope. When you have a hammer, all problems look like nails. You just want to flail away at the problem ignoring that its not working and doesn’t help the innocent.

    8) “Police storm a club on a gambling warrant. They shoot and kill an innocent security guard on their way in. Their paramilitary tactics lead the club’s occupants to believe they’re being robbed, which leads to a close-quarters gunfight, putting everyone inside in peril. And throughout all of this, they fail to take into consideration the fact that the club had been recently robbed, meaning a forced, armed entry would in all likelihood cause those inside to believe this was a second robbery, not police executing a warrant.”

    Did you even bother to read these before citing them in support of not looking for other remedies than the exclusionary rule? Please explain how the exclusionary rule helps this situation and Scalia’s idea for civil liabilities wouldn’t.

    9) “The Manassas area is notorious around the Beltway for corruption. But the Manassas Park Police Department is out of control. ”

    You are really making the case that the exclusionary rule is working. It sure does stop those cops from doing anything bad. Wouldn’t want to mess with the exclusionary rule. Wouldn’t want to try something else, since the exclusionary rule is working so well.

    10) “According to Smith, the police tactical team received information that a drug dealer lived at 343B Old Trenton Road, but they ended up going to the house next door that only had the letter ”B” on the outside ââ?‰?? which turned out to be 341B.”

    Same song, 10th verse. Exclusionary rule gives no meaningful relief to the innocent, threat of the exclusionary rules doesn’t stop the mistakes from happening.

    I agree that getting the police to play by the rules protects us all. Where we disagree is if the exclusionary rule is achieving that end. Since you show that it isn’t, then what do you find so objectionable to Scalia’s idea that we look for other solutions?

  5. James Joyner says:

    yaj:

    You’re certainly right that the Exclusionary Rule does nothing for the innocent. The only thing is could conceivably do for them is to incentivize less bad behavior on the part of the cops; i.e., not breaking the doors down to begin with. Certainly, in this case–where the cop had every reason to think the ER applied–it did not do that.

  6. floyd says:

    ra; it’s childish paranoia like yours that has deprived us of our liberties.the ends do not justify the means in these cases since the means is the whole point, when protecting liberty.BTW it’s “whole cloth” not “hole cloth”. “hole cloth” seems to be what the constitution is written on these days. P.S. no way you depise the ACLU as much as i, since they are disengenuous and unprincipled whiners.

  7. floyd says:

    oh yeah; if we don’t want to be “overrun by felons, child molesters, thieves and murderers, we should simply quit electing them.[lol]

  8. Anderson says:

    These so called â??rulesâ?? we invent by ACLU judges out of hole cloth. These people want Americans overrun by felons, chid molesters, thieves and murderers.

    RA, has the institution restored your internet privileges again? A bit premature, it seems.

  9. Steve Verdon says:

    YAJ,

    Thanks for the big fat strawman post. I’ll know who to go to next time I need some straw.

    James,

    Regarding the violent criminals you mention in your other post. Questions: Was Sal Culosi a violent criminal? Can you think of a good reason why virtually all warrant in Fairfax county are served via SWAT units?

  10. just me says:

    Seems to me letting the guilty go free by excluding the evidence isn’t going to matter much to cops who are already willing to operate outside the law.

    The punishment for the cops should actually be painful to the cops, not to the victims of the crimes where the criminals involved get get of jail free cards, because some cop wasn’t acting out of bounds.

    The deterrant for the cops should be something that actually makes the cops think twice. Giving criminals a free pass doesn’t do much towards public safety either.

    We recently had a child molester (who was a teacher) in our area get off on a technicality, because the warrants were screwed up, and they didn’t cover the computer where the kiddie porn was stored (seems like they covered the computer at his residence and not his work place or visa versa, and the computer that wasn’t on the warrant was the one with all the evidence stored on it). So what if the warrant was correct in this case, but the cops didn’t knock and announce-are you okay with this guy teaching in your school system? Does it help society to exclude the evidence? I am still bothered by the fact that this guy had overwelming evidence against him, and he isn’t going to go to trial or be convicted, or even be restricted from contact with children.

  11. Steve Verdon says:

    The punishment for the cops should actually be painful to the cops, not to the victims of the crimes where the criminals involved get get of jail free cards, because some cop wasn�t acting out of bounds.

    Great idea…also a total non-starter in any political sense that matters. Next idea?