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No Remedy When Police Fail to Knock Before Executing Search Warrant

By TChris, Section Court Decisions
Posted on Thu Jun 15, 2006 at 09:53:30 AM EST
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by TChris

The police have little incentive to obey the constitutional requirement to knock and announce their presence before busting down doors to serve search warrants, thanks to a 5-4 Supreme Court decision issued today. Justice Alito provided the tie-breaking vote.

The Court ruled that suppression of the results of the search -- the usual remedy when evidence is acquired in violation of the Constitution -- is too extreme when police fail to knock-and-announce. The dissent voiced the obvious response:

"The court destroys the strongest legal incentive to comply with the Constitution's knock-and-announce requirement,'' Breyer wrote for the four dissenters.

Knocking and waiting for a short time for a response avoids needless property damage and saves occupants from the trauma of a sudden and unexpected invasion by armed officers. More importantly, it can save lives. In this case, the police entered the wrong residence, and a frightened occupant, mistaking officers for intruders, killed an officer. If the police had knocked and waited for the occupant to answer, they would have realized their mistake, and that tragic death would have been prevented. Officers were shot under similar circumstances in this case. And in this case, a less aggressive approach may have prevented the shooting of an occupant.

The Court's opinion is here (pdf).

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    No Remedy When Police Fail to Knock Before Executing Search Warrant | 65 comments (65 topical)
    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#1)
    by ras on Thu Jun 15, 2006 at 10:33:19 AM EST
    Apparently, the stats demonstrating that Roberts is very persuasive on Kennedy were correct.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#2)
    by Patrick on Thu Jun 15, 2006 at 10:42:04 AM EST
    Prosecutors can use evidence seized by police during a home search even though officers violated the Constitution by failing to knock or announce their presence before entering, the U.S. Supreme Court ruled.
    Can someone point me to the part in the U.S. Constitution where it says government officials have to knock? I never read that in there before. If the argument is failing to knock makes it unreasonable, then perhaps I might agree in some circumstances. However, the majority of the Supreme Court seems to disagree. Either way, supressing evidence from an otherwise lawful intrusion is too large a sanction. Of course many here will disagree, but I expect that. I don't expect this to change the way LEO's operate when serving search warrants. In many instances it is the safer way to conduct business.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#3)
    by glanton on Thu Jun 15, 2006 at 10:44:44 AM EST
    Libertarians rejoice! Once again this proves that you vote and talk and write as you do because, ahem, freedom is your top priority. In Homer Simpson's voice: "mmmmm, taaaaxxxxxx cuhhhhtttttsssss"

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#4)
    by jondee on Thu Jun 15, 2006 at 10:53:43 AM EST
    Something about assuming a position that rhymes with Grover occurs to me.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#5)
    by roy on Thu Jun 15, 2006 at 10:54:52 AM EST
    In this case, I don't see much difference between knocking and shouting. Both serve to annouce the presence of the cops. Also, what does "tie-breaker" vote mean in this context? Is Alito like the Vice President and Congress, allowed to vote only if the other judges can't reach a majority?

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#6)
    by sarcastic unnamed one on Thu Jun 15, 2006 at 10:55:49 AM EST
    No Remedy When Police Fail to Knock Before Executing Search Warrant
    NPR described this ruling this morning as evidence obtained from "knocking, announcing, and not waiting before entering" would not be suppressed. Not "not knocking, just entering."
    If the police had knocked and waited for the occupant to answer, they would have realized their mistake, and that tragic death would have been prevented.
    Complete supposition. But, whatever.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#7)
    by roy on Thu Jun 15, 2006 at 10:59:28 AM EST
    I forgot to apply flame-retardant to my earlier comment: it looks like the question of whether the search violated the knocking requirement was already settled. It was a violation. I was just wondering aloud about the practical impact of tolerating shouting in lieu of knocking.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#8)
    by glanton on Thu Jun 15, 2006 at 11:06:32 AM EST
    Roy: As for your tie-breaker "quip" (and I use that term loosely), the point is that Bush got two nominations through to the Supreme Court, which swung the balance to decisions like this. But hey, you can't win em all and at least we got a little more money back in April! And then, maybe it would be more fair to call Roberts the tie-breaker since he after all replaced a Justice who on occasion would uphold civil liberties. suo writes:
    Complete supposition. But, whatever.
    Come on, you can do better than that. Is it also "complete suooposition" to say that if a man killed by gunfire had not been shot, then the gunfire wouldn't have killed him? Oh, the impulse to justify, the desire to channel the South Park cop "nothing to see here, keep moving along."

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#9)
    by glanton on Thu Jun 15, 2006 at 11:18:49 AM EST
    Oops, my mistake. It was indeed Alito who replaced O'Connor, thus making him the tie-breaker. Ther ridiculousness of Bush getting to nominate anyone even for dog-cather, however, is the bottom line.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#10)
    by sarcastic unnamed one on Thu Jun 15, 2006 at 11:19:50 AM EST
    g-man, it is complete supposition to state as fact that in the case cited, if the cops had knocked and announced before entering, instead of just entering, that the cop would not have been shot. Personally, I tend to agree with the supposition, and think any cop should knock and announce to help avoid such tragedies, but it is complete supposition nonetheless regarding the cited case, and not fact. But, again, whatever. To those who have read the ruling and opinions, do you think TChris's headline summary is accurate, or is NPR's summary?

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#11)
    by Patrick on Thu Jun 15, 2006 at 11:31:13 AM EST
    T-Chris's headline is bogus. Even the court said there were remedies, just not the one the defense was seeking...The supression of all evidence taken during the lawful search.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#12)
    by Patrick on Thu Jun 15, 2006 at 11:33:20 AM EST
    That said, I wouldn't expect anything more from him. A leopard can't change its spots, and a skunk don't smell like a rose.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#13)
    by Sailor on Thu Jun 15, 2006 at 11:33:44 AM EST
    if the cops had knocked and announced before entering, instead of just entering, that the cop would not have been shot.
    they had the wrong house. The cop got shot because they broke in. Do you really think the cop would have been shot if the'd said, "mr smith, we have a warrant for your arrest" and he replied "no one named smith lives here, you have the wrong house."

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#14)
    by Talkleft Visitor on Thu Jun 15, 2006 at 11:34:35 AM EST
    Can someone point me to the part in the U.S. Constitution where it says government officials have to knock? I never read that in there before.
    Patrick, You of all people should know that the U.S. Constitution is further defined by case law. From Findlaw:
    Execution of Warrants .--The manner of execution of warrants is generally governed by statute and rule, as to time of execution, 155 method of entry, and the like. It was a rule at common law that before an officer could break and enter he must give notice of his office, authority, and purpose and must in effect be refused admittance, 156 and until recently this has been a statutory requirement in the federal system 157 and generally in the States. In Ker v. California, 158 the Court considered the rule of announcement as a constitutional requirement, although a majority there found circumstances justifying entry without announcement.


    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#15)
    by glanton on Thu Jun 15, 2006 at 11:35:02 AM EST
    suo: Given that the man who shot the cop did so because he thought he was being robbed, it stands to reason that he didn't know it was the police when he opened fire. Now. I think we can safely progress from there to the fact that a knock followed by a good ole "Open up, Police!," would have served to announce it was probably the police. A flashing of badges and the like, if requested would have sealed the deal. We're not talking supposition here. And BTW, your question about TChris's headline v. NPR's on the surface appears intriguing. At present I have only given the Opinions a cursory glance so I'm not sure. But one thing we can all safely know is that staying on the surface of this particular ruling would be the height of naaivety. These are early stages for this court. Not just the issue of knocking, but Miranda too will have it's turn to be shredded, this we have already been promised. And then when you contextualize all of this within the NSA, no need for a warrant mentality that has swept up the Uhmerrikahn publick, things become clearer still. The climate is what it is.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#16)
    by sarcastic unnamed one on Thu Jun 15, 2006 at 11:42:43 AM EST
    Sailor, Dadler, as I said, I agree with the supposition, as do you, but it is, by definition, a supposition and not a matter of fact. I don't think he would have been shot, but I don't know that as fact, anything could have happened. Not trying to be a pissant about this, it's just the TChris an attorney, and a pretty well-respected one at that, not an anonymous yahoo wasting time at work like us.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#17)
    by Talkleft Visitor on Thu Jun 15, 2006 at 11:42:59 AM EST
    Breyer suggests arguing based on the "guns", but then there would be endless appeals of various cases depending on whether the guns were "really dangerous", etc. This is much better; the cops involved can be brought up on whatever administrative charges and defend themselves. In the real world of bad guys, does anyone really think that announcing and knocking does anything but allow crooks to hide evidence and perhaps arm themselves to face the cops? Sometimes libertarians spend too much time worrying about hypothetical rare catastrophies (i.e. that a cop will accidentally break down their door by mistake). A lot like Americans who obsess about the chance of being killed by a terrorist.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#18)
    by Patrick on Thu Jun 15, 2006 at 11:46:08 AM EST
    Sailor, If you think they would have had that conversation at the front door during the execution of the search warrant, you're mistaken. The front door (and all doors) aren't called the fatal funnel for nothing. Disclaimer: There are low key search warrants where that may in fact happen, but that is not the norm. Search warrants at business for records is an example that comes to mind. Also search warrants are different that arrest warrants, I don't know if you're making that distinction or not.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#19)
    by Dadler on Thu Jun 15, 2006 at 11:46:22 AM EST
    Patrick, You need a good hypnotist to get TC outta yer nut. Maybe just a dartboard with those initials on it. Or a voodoo doll. Acupuncture? Meditation? Surfing?

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#20)
    by Patrick on Thu Jun 15, 2006 at 12:08:04 PM EST
    Macro, My comment was related to the quote from the article, which states it was a violation. All the case law I'm familiar with uses a reasonableness standard. Since, knocking per se isn't included in the actual words of the constitution I fail to see how the author drew his conclusion in light of the USSC decision. But, you are right, I was trying to be a SA.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#21)
    by Patrick on Thu Jun 15, 2006 at 12:10:05 PM EST
    Dadler, Naw, I'm good. Just glad to get off Rove and on to something more interesting.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#22)
    by desertswine on Thu Jun 15, 2006 at 12:10:17 PM EST
    the fatal funnel
    The fatal funnel? I never heard that before, but I think I dated her once.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#23)
    by Talkleft Visitor on Thu Jun 15, 2006 at 12:19:32 PM EST
    As to remedy, per Justice Breyer's dissent: Yet the majority, like Michigan and the United States, has failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation. Even Michigan concedes that, "in cases like the present one ... , damages may be virtually non-existent." So the headline is less true than the first sentence of this post ... "little incentive" is a better way to put it.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#25)
    by Talkleft Visitor on Thu Jun 15, 2006 at 12:59:50 PM EST
    Narius, I will direct you to , please peruse the methods law enforcement now takes to serve warrants. Oh and the innocent people caught in the web. Oh and that evidence, yeah it's drugs, not a dead body or a rape victim. Let's be clear about what evidence we're talking about.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#27)
    by Talkleft Visitor on Thu Jun 15, 2006 at 01:20:38 PM EST
    I think this thread has been sidetracked by the mention of another, entirely unrelated case in the original post. That case serves to teach cops to ensure they have the right residence before the serve a warrant. Hudson, in my estimation, gets it right. Look at the facts of this case: a search warrant was issued to recover a large amount of cocaine from an individual known to carry a weapon. In serving the warrant, the police knocked (as required through Wilson) and after waiting a "reasonable time" (under Banks) entered to find, as suspected, a large quantity of cocaine and a loaded gun within reach of Hudson. What would have been the result of the police waiting longer in this case? Two things: 1) Hudson would have attempted to dispose of the contraband, and/or 2) Hudson would have barracaded himself in the residence, with his handgun, at peril to the police and neighboring residents. The expected potential for violence upon entering, coupled with the risk of evidence being destroyed is the standard by which the delay between knock and forced entry is determined ex ante. In this case, the police officers acted reasonabily upon ex postexamination. Exclusion of this evidence would be too high a penalty to pay. I have no doubt that had the facts been different, had the contraband been a stolen TV in the hands of an individual without a violent criminal history, the Court would have come to the same conclusion (that is, exclusion is often too high of a price) but instead remand with instructions to supress.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#28)
    by Talkleft Visitor on Thu Jun 15, 2006 at 01:35:45 PM EST
    What a shocker about Alito's vote, eh?

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#29)
    by Dadler on Thu Jun 15, 2006 at 01:39:07 PM EST
    Croc, Now that we think more about this issue, why is it worth any lives over the specific narcotic cocaine in the first place? Would you waste the same lives over booze? Is being f*cked-up drunk less dangerous to others? Of course not, obviously. And so many of these raids are over narcotis. This selective narcotic prosecution, our legal/illegal equation, is utterly lacking in reason, and, I have a hunch but mostly hope, is in the dying throes of its puritan heritage. The pilgrims loved their beer, after all. It's why they came ashore at Plymouth Rock -- they'd run outta fresh water to brew up their suds. Never forget the personnel origins of our nation: that a long, long time ago all the puritans and protestant extremists got on boats over in Europe, and you know where they sailed? Right. F*cking. Here. We have many contradictions to this day as a result.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#30)
    by scribe on Thu Jun 15, 2006 at 01:42:43 PM EST
    The point of the exclusionary rule is and always has been quite simple: police are incentivized by arrests and searches which succeed in gaining convictions, and are dis-incentivized by those which do not. Control the police (and prevent a police state) by careful control of their incentives. Said another way: police get promoted and get to stay police only if they do their job, which is to catch criminals and put them in jail. If they do things which judges later decide result in the "bad guy" not going to jail (like investigate or arrest him in a way that violated the Constitution and/or laws the police swore to uphold), then it is worse for Mr. Policeman than if he had never arrested the bad guy in the first place. This, for two reasons. First, the government has gone and spent all this credibility, time, effort and money on a case which was a loser. Second, because the judges have now drawn (or darkened) a line which is precedential, saying to the police "thou shalt not". So, the exclusionary rule gave the police the incentive to follow the law and Constitution they swore to uphold, by tossing out the evidence they would sieze if the police violated the constitutional rights of the people they stopped/searched/arrested/whatever. No evidence, no conviction, bad cop, no donut. OK? Get it? Scalia was mortified by the prospect of giving a "get out of jail free card" to someone whose door had just been crashed in by some guys yelling "police" (and, remember, (a) at 3 am with a shotgun in your face, you're far less likely to get a pleasant "here's my ID" as opposed to a "STFU, N-word", and (b) I haven't even addressed how this makes, like, home invasion robberies by police impersonators much easier). Scalia's attitude is no surprise, at least to me. The wingers have been howling about the exclusionary rule since it first was imposed back in the 60s, and made it part of their litmus test for judicial appointees (you surely don't believe they don't have one, do you) during the Reagan era. If I had a nickel for every opinion piece written in the 80s telling us how bad an idea the exclusionary rule was, I would be able to retire now. Scalia's opinion reads just like any number of those opinion pieces, a pure winger product. The idea of there being other incentives, like damages suits or such, to remedy violations of the Fourth Amendment is, in a word, risible. Scalia, Thomas, Rehnquist et als. have spent the better part of a generation cutting the guts out of the civil rights act and causes of action under it, and inserting new immunities to suit everywhere, and finding ingenious ways to make it so plaintiff's can't win. You only need read all the facts in the case decided yesterday on persons detained in NYC post-9/11, Turkmen v. Ashcroft (Warning - 99 page .pdf) to see just how shabbily you can be treated and still watch the police laugh, scot-free. TChris put up an article on high-speed car chases and how they continue to kill thousands - the fact of the matter is there is no remedy under the civil rights act for being run down by a cop in a high speed chase, County of Sacramento v. Lewis (1998), thanks to the Justices. Bluntly, if someone asked my advice on taking the plaintiff's side of a case for police crashing in the door - warrant or not - I'd say it's a waste of time. The cop's first defense is "he was guilty", and if anything was found (something easily arranged), that will be enough to end the suit. These justices have, by and large, devoted a generation to gutting the Fourth Amendment, and are pretty well done with it.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#31)
    by scribe on Thu Jun 15, 2006 at 02:17:05 PM EST
    They're not, but they're usually also broke and uninsured. And, regardless of what the government says, in Lewis that chase would have stopped, and Lewis lived, had the police stopped the chase. It really only go going when the police hit the lights and started to chase. Moreover, it's not like Lewis had any control over the driver, since he was a passenger on the motorcycle the police were chasing.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#32)
    by Che's Lounge on Thu Jun 15, 2006 at 02:37:40 PM EST
    Narius, The officers found COCAINE and a GUN. They shouted "Police, search warrant!". It is not like they just barged in. Can you get to your front door in five seconds from, say, your bedroom? Do you break into a sprint at the sound of your doorbell?

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#33)
    by Talkleft Visitor on Thu Jun 15, 2006 at 02:59:58 PM EST
    Dadler - I'm confused by what you mean "waste lives" over cocaine. Would you clarify? Although this isn't the topic of the thread, you bring up (again) the issue of our drug laws. I'm on the side of reform. I think too many non-violent offenders (meaning, mainly, users not dealers or traffickers) are behind bars. Nevertheless, if you are selling cocaine, you are violating the law. There can be no confusion about this. So if you're suggesting the police merely stop executing search warrants in drug cases, or give more deference to suspects when executing warrants, I think you're way off base.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#34)
    by Johnny on Thu Jun 15, 2006 at 03:01:17 PM EST
    So let me get this straight... Cops can knock on/announce themselves at the wrong door... To serve a warrant... And they can arrest you? So what is to prevent them from pulling the old "Whooops! Sorry, wrong house, but we are going to arrest you anyways" on purpose? Their integrity? LMAO. Yes, there was a victory in SCOTUS, a victory for fascists. Narius, glad to see you make it back. Along with your typical totalitarian attitude towards the constitution.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#35)
    by Talkleft Visitor on Thu Jun 15, 2006 at 03:06:17 PM EST
    If you read the opinion and the dissent its clear that the 5 Justices in the Majority decided this case not because it was right, but because they could. Note that 'Wilson v. Arkansas' was a unanimous decision. Some snippets from Breyer's dissent: ............. The first set of cases describes the constitutional knock-and-announce requirement, a requirement that this Court initially set forth only 11 years ago in Wilson v. Arkansas, supra. Cf. Sabbath v. United States, 391 U. S. 585 (1968) (suppressing evidence seized in violation of federal statu-tory knock-and-announce requirement); Miller v. United States, 357 U. S. 301 (1958) (same). In Wilson, tracing the lineage of the knock-and-announce rule back to the 13th century, 514 U. S., at 932, we wrote that "[a]n examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering." Id., at 931. We noted that this "basic principle" was agreed upon by"[s]everal prominent founding-era commentators," id., at 932, and "was woven quickly into the fabric of early American law" via state constitutions and statutes, id., at 933. We further concluded that there was "little doubt that the Framers of the Fourth Amendment thought that the method of an officer's entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or sei-zure." Id., at 934. ........... Boyd v. United States, 116 U. S. 616 (1886). In this seminal Fourth Amendment case, decided 120 years ago, the Court wrote, in frequently quoted language, that the Fourth Amendment's prohibitions apply "to all invasions on the part of the government and its employés of the sanctity of a man's home and the pri-vacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his in-defeasible right of personal security, personal liberty and private property." Id., at 630. Weeks, supra. This case, decided 28 years after Boyd, originated the exclusionary rule. The Court held that the Federal Government could not retain evidence seized unconstitutionally and use that evidence in a federal criminal trial.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#36)
    by Talkleft Visitor on Thu Jun 15, 2006 at 03:13:54 PM EST
    So let me get this straight... Cops can knock on/announce themselves at the wrong door... To serve a warrant... And they can arrest you?
    Johnny - Where did you come up with this gem?

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#37)
    by Sailor on Thu Jun 15, 2006 at 03:18:47 PM EST
    The 5 supremes admitted the cops broke the law ... and now it's OK for cops to break the law ... lovely precedent.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#38)
    by Talkleft Visitor on Thu Jun 15, 2006 at 03:27:34 PM EST
    What would have been the result of the police waiting longer in this case? Two things: 1) Hudson would have attempted to dispose of the contraband, and/or 2) Hudson would have barracaded himself in the residence, with his handgun, at peril to the police and neighboring residents. Complete supposition, but whatever.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#39)
    by Talkleft Visitor on Thu Jun 15, 2006 at 03:34:46 PM EST
    sixteenwords - You busted me; it was absolute supposition. What do you think would have happened in that instance? Do you think Hudson would have opened the door, pointed the police in the direction of the crack and added "Oh yeah, check the couch.. there's a gun in the cushions." Hardly.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#40)
    by Punchy on Thu Jun 15, 2006 at 03:43:47 PM EST
    How does this work in FL? They have a "Homestead Protection" law, that allows you to shoot first and figure stuff out later if you are threatened in your home. As I can figure, the cops can legally bust in unannounced, but a Floridian can bust out 10 rounds before he/she knows who it is and is obviously threatened and startled. I smell trouble in Miami!!

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#41)
    by cpinva on Thu Jun 15, 2006 at 03:45:23 PM EST
    patrick said:
    Can someone point me to the part in the U.S. Constitution where it says government officials have to knock? I never read that in there before.
    of course you know it doesn't. however, both the supreme court, and USC both require knocking and waiting, when executing a search warrant, generally. as they continue to pick away at the 4th, soon we'll be back to the days of the crown, with red coated soldiers breaking down the doors to our homes whenever they feel like it.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#42)
    by Talkleft Visitor on Thu Jun 15, 2006 at 03:52:29 PM EST
    as they continue to pick away at the 4th, soon we'll be back to the days of the crown, with red coated soldiers breaking down the doors to our homes whenever they feel like it.
    Well if that happens, at least we won't have to quarter them! (Barring an Amendment, that is.)

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#43)
    by BigTex on Thu Jun 15, 2006 at 04:13:07 PM EST
    The underlying premesis seems solid. The police aren't absolved of all responsibility, the Court seems to be using a variation on the inevidible discovery rule. Also, where is the harm? Yes it is a constitutional violation, but under a harm analysis, where does the harm lie? K and A serves three purposes... 1) Protect the homeowner, 2) Protect the state, and 3) Protect the officers themselves (someone busts into your home, you might think it was a robber and resort to self help firearm style to protect yourself. This modification of the rule does not have any bearing on the first area. The home owner still is protected from physical damages and excessive force to the same point they were before the ruling. The second area is helped by this ruling. Now the state doesn't have to argue exigent circumstances, and they have less to worry about criminals having rotor rooter help them out. The third area is a concern. This will directly increase the threat to law enforcement officers. However, the 4th Amendment is not concerned with the health of the the officers. Each time officer health is involved they court has made an exception to the 4th Amendment, or has more narrowly interpreted the Amendment. As such, this shouldn't be involved in an analysis of 4th amendment protections. Now, having said all this, I have not yet read the opinion, these thoughts are a philosophical view.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#44)
    by Talkleft Visitor on Thu Jun 15, 2006 at 04:57:50 PM EST
    "The home owner still is protected from physical damages and excessive force to the same point they were before the ruling." I don't understand "the same point," since if the police are deterred from breaching the rules further by means of possible exclusion of the evidence, the home owner would be protected MORE right? To clear up a possible confusion, the state agreed they broke the rules here. The concern was remedy. As the dissent notes, other than the exclusionary rule, experience has shown that there is little remedy with any bite. The case was not about knock and announce itself which Kennedy, the fifth vote, underlined was still an important matter. In fact, he implied if a clear case of concerted abuse in this area can be shown and no other remedy was present (as noted, the dissent notes the second is already true), he might have decided things differently. As to the problems a truly efficient remedy might guard against, see here. I'd add Breyer has a telling comment on how if the state actually went to the courts and argued there was exgigent circumstances, they probably would have won. The value being that there would be a judicial check and the nuances would be decided by the courts. In other words, a "serious violation" would actually sometimes have a real remedy, not the "never" rule as applied here.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#45)
    by Patrick on Thu Jun 15, 2006 at 06:21:29 PM EST
    To clear up a possible confusion, the state agreed they broke the rules here.
    I must have missed that admission. Can someone point it out to me?

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#46)
    by squeaky on Thu Jun 15, 2006 at 06:33:31 PM EST
    As I can figure, the cops can legally bust in unannounced, but a Floridian can bust out 10 rounds before he/she knows who it is and is obviously threatened and startled. I smell trouble in Miami!!
    It is always weird when the left and the right come into alignment. This SC is fanning the flames for a revolution. Time to send some cash to the NRA. Nathan Newman has more at TPM cafe.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#47)
    by roger on Thu Jun 15, 2006 at 07:48:34 PM EST
    Patrick- In the beginning of the decision, it's noted that the state conceeded that knock and announce had been violated. Punchy- There's an old federal case where undercover cops burst out of closets in a home. The defendant shot and killed several. The outcome was that since there were no uniforms, and no announcement of being law enforcement, he had not committed a crime. This was under the laws over 10 years ago.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#48)
    by Peter G on Thu Jun 15, 2006 at 08:55:09 PM EST
    Serious TalkLeft readers will want to know that John Wesley Hall, TL's co-blogger as "Last Night in Little Rock," was the winning lawyer (9-0) in Wilson v Arkansas (1995). It was Wilson, thanks to JWH's brilliant advocacy focusing on pre-1790 history, which recognized the Fourth Amendment status of the "knock and announce" rule as an inherent part of what it means for the search of a home to be "reasonable." JWH is also the keeper of a great Fourth Amendment site, where he comments on Hudson, calling it "a knife in the heart for those of us who consider the knock-and-announce rule so vital to protection of human life."

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#49)
    by Peter G on Thu Jun 15, 2006 at 09:00:01 PM EST
    Oops, the correct link for JWH's "FourthAmendment.com" is this.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#50)
    by Talkleft Visitor on Fri Jun 16, 2006 at 12:30:42 AM EST
    Rogan1313: If the police serve thousands of warrants each year, and Al Qaeda has blown up precisely one building on United States soil, how are the chances even remotely equal. The chances of either happening to your random libertarian are exceptionally low, but the multiplier in one case is on the other of thousands/year and in the second is on the order of 1/5 years, and that's assuming an initial time of 2001. Warrants are served (even when accompanied by a raid) significantly more often than Al Qaeda blows up buildings in America, which means that there are invariably more mistakes. Now, if you take account that so-called "militarized" raids are non-randomly distributed (and to a degree rightfully so -- the issue is more the method than the raid itself to a large degree), then if you live in a housing project in a big city, the chances of amped up cops with big guns making a no-knock raid on your house accidentally potentially approaches what they call statistical significance.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#51)
    by Johnny on Fri Jun 16, 2006 at 12:31:21 AM EST
    The police execute thousands of search warrants a year, I would guess. The likelihood that some innocent TL libertarian would have his or her door broken down by an undercover SWAT team by mistake is similar to the likelihood that the TL person will have his house or place of business blown up by Al Qaida.
    And that of course, justifies any and all raping of civil liberties known to man... Nice one Rogan, nice twist on the perverted, sick, demented, idiot's stance of: "If you have nothing to hide, why worry about who is looking." Glad to see you are comfortable with a police/surveillance state. Remember, if you voted republican, you are responsible for this.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (#53)
    by Che's Lounge on Fri Jun 16, 2006 at 07:45:03 AM EST
    My front door is for sale if anyone is interested. I certainly don't need it anymore.

    Re: No Remedy When Police Fail to Knock Before Exe (none / 0) (