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