Exclusionary Rule—Hudson v. Michigan

We noted yesterday that the United States Supreme Court issued a ruling in Hudson v. Michigan (04‑1360) that fatally damages the 4th Amendment protection afforded by the “knock and announce” rule. In a 5‑4 vote, the Supreme Court held that the failure for police to wait a reasonable time before entering after observing the obligation to knock and announce will no longer require a trial court to exclude the evidence resulting from the illegal entry. ^[1]

A closer look at the Justice Antonin Scalia’s opinion for the majority, plus Justice Anthony Kennedy’s concurrence and the dissent penned by Justice Steven Breyer, reveals just how big a threat this ruling poses for individuals and how great a boon for law enforcement officers. In summary, this Court held that “the social costs of applying the exclusionary rule to knock-and‑announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences (sic) against them are substantial.”^[2]

Because in Hudson the fact that the police had violated the “knock and announce” rule was not in question, the Supreme Court ostensibly restricted its consideration in Hudson to whether or not the exclusionary rule was the appropriate remedy for this 4th Amendment violation.^[3] Justice Scalia wrote that “exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining evidence.”^[4] In other words, if the police have obtained a search warrant that says you have evidence of criminal activity in your home, you have already lost the right to the constitutional protection of your privacy.^[5]

Second, the majority held that the social costs—of the risks of issuing a “get‑of‑jail‑free card” and of spending extensive court resources to litigate whether or not police waited a “reasonable” amount of time before entering—were too high to justify the benefit of deterring police from violating an individual’s civil rights.^[6] In fact, Justice Scalia opined that the “deterrence of knock‑and‑announce violations is not worth a lot.”^[7] Citizens who feel that their rights have been violated can always sue the police, and what better deterrent than a (hard to bring, difficult to win, low-yielding) civil suit anyway?

Finally, the Supreme Court decided to roll back years of precedent, no longer “forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.”^[8] Today, after all, we are dealing with the “increasing professionalism of police forces” and presumably do not have to worry as much about abuse of police power.^[9]

In concurrence, Justice Kennedy stated that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”^[10] It’s a nice thought, but the broad reasoning and conclusory statements of the majority indicates just how wide open it has kicked this door.

Dissent
Writing for the dissent, Justice Breyer acknowledged the destructive effect that this ruling has on the constitutional knock‑and‑announce protection. He also took issue with the majority’s legal analysis concluding that “I can find no precedent that might offer the majority support for its contrary conclusion” to the rule established in Weeks v. U.S. and followed by nearly 300 4th Amendment cases following.^[11]

Justice Breyer also took exception to the majority’s implicit assumption that a valid search warrant is tantamount to inevitable discovery. He wrote that “[i]t is difficult for me to see how the presence of a warrant that does not authorize the entry in question has anything to do with the “inevitable discovery” exception or otherwise diminishes the need to enforce the knock‑and‑announce requirement through suppression.”^[12]

It is significant that this split decision was decided after re‑argument to permit new Bush appointee Justice Samuel Alito to participate. The 5-4 margin favoring the Scalia‑and‑Thomas brand of thinking may be indicative of the new balance of power among the sitting justices.

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[1] Hudson v. Michigan, No. 04‑1360, 547 U.S. ___ (2006)(J. Breyer dissenting, J. Kennedy concurring).
[2] Hudson at 13.
[3] Hudson at 1. See also Weeks v. United States, 232 U. S. 383 (1914) (exclusionary rule applied to federal criminal cases) and Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule applied to state criminal cases).
[4] Hudson at 5.
[5] U.S. Const. amend. IV.
[6] Hudson at 8.
[7] Hudson at 9.
[8] Hudson at 10.
[9] Hudson at 12.
[10] Hudson at concurrence, pg. 1.
[11] Hudson at dissent, pg. 8-10.
[12] Hudson at dissent, pg. 16.