From CNN.com:


A link to the ruling in Hudson v. Michigan can be found here(PDF)

Questions for Debate:
1) Should evidence be excluded from trial if a procedural error occurs in serving a warrant (in this case, failing to knock)? Why or why not?

2) Even though Hudson only relates to the suppression of evidence as it relates to the failed procedure, will the decision incent police officers to not announce their presence in the future since there seems little penalty at this point for failing to do so?

This is a depressing and even predictable ruling.

Should evidence be excluded from trial if a procedural error occurs in serving a warrant (in this case, failing to knock)? Why or why not?
Yes. Why should police follow law enforcement procedure protecting our rights if evidence won’t be thrown out in court?

Even though Hudson only relates to the suppression of evidence as it relates to the failed procedure, will the decision [give incentive to] police officers to not announce their presence in the future since there seems little penalty at this point for failing to do so?
Yes. No-knock raids were previously limited to exceptional circumstances like hostage situations or fugitives on the run. It has become the preferred method of preserving evidence of illegal drugs before the accused has a chance to run into the bathroom and flush it down the toilet.


Wilson v. Arkansas predates Hudson. In Wilson SCOTUS handed down a standard: instead of eliminating drug raids, SCOTUS required SWAT teams to knock on the door and briefly wait for a response before knocking it down. However, if “exigent circumstances” existed at the serving of a warrant, a judge could issue a no-knock warrant, but police also faced the possibility that the judge would refuse to issue a no-knock warrant, and evidence was thrown out. Now that the tenuous line between public safety and individual rights has been retired, police don’t have an incentive to defer on constitutional rights.

In a pro-gun nation the ruling will increase the chances of the accused and law enforcement dying as a result of such raids.

1) Should evidence be excluded from trial if a procedural error occurs in serving a warrant (in this case, failing to knock)? Why or why not?

I have to say from the outset that there's no constitutional justification whatsoever for the so-called "exclusionary rule" that prevents guilty people from being convicted because the authorities made a procedural error. Unless there's something to suggest that the evidence itself is of questionable plausibility, it should have no effect on whether it's used against a person in a criminal trial. A person who commits a crime doesn't somehow become less guilty just because the cops didn't dot some i somewhere.

2) Even though Hudson only relates to the suppression of evidence as it relates to the failed procedure, will the decision incent police officers to not announce their presence in the future since there seems little penalty at this point for failing to do so?

Removing the exclusionary rule doesn't preclude the possibility of penalties for police officers who don't follow the proper procedure (sorry for the overalliteration). It simply makes sure that criminals don't escape penalties for reasons having nothing whatsoever to do with virtue or lack of proven guilt on their part. Officers can still be sued, and even brought up on criminal charges if they violate people's rights. Granted, it's difficult at present to charge a cop criminally, because the DA is usually on their side. But we should be finding ways to make that more of a possible option, instead of inventing constitutional clauses that aren't there, that do nothing but make life easier on criminals and undermine respect for the law.

I really can't say that I know exactly how knocking or not really changes the outcome. If police have a warrant, and the person is guilty... seems to be a no brainer to me.

I don't suppose that anyone is really ever concerned with the fact that these are criminals, of which a warrant has been issued against?

I find fault in the notion that knocking on someone's door, as if to borrow sugar makes any real difference.


I don't really know what would make you think that... particularly in the vain that if a swat team is knocking down the door yelling police as they run into someone's house... they'll have LESS time to get the gun from under the mattress...

Frankly, if we're concerned with innocent people getting their doors knocked down, then that really could happen regardless of whether the cops are knocking or not. I don't suppose that the police departments have a policy of not paying for broken doors when they've hit the wrong homes!

At what point is public safety more important than being polite? If police accidentally knocked down my door lookin' for drugs or whatever, I suppose the inconvenience would irk me, but I'd surely be glad that they're attempting to find someone that might be threatening the safety of my community.

If police depts have warrants, and are nearly positive that there are suspects in the house... why should they knock? It gives the people time to run and/or hide the evidence and/or begin shooting!

Technically you're right, but the constitution does have something to say about illegal searchs and seizures. So you could argue that indirectly the constitution is saying the evidence was illegally garnered and hence is not admissable due to that fact.

Also, why would you want to encourage the police to commit illegal searchs and seizures? Or reward them? I'm guessing you're a big "privacy guy" based on what I've heard from you lately.



But they are innocent until proven guilty. We have a process of law and just because you "know" someone is guilty does not make them guilty in the eyes of the court. You have to prove it and if the court allows ILLEGAL activity to find one person guilty, they'll use it to find an INNOCENT person guilty as well.

The idea is that you want to have the courts above board at all times, regardless of who the defendant is.



You're missing the point, the protections aren't for the guilty....they're for the innocent. Change your perspective, imagine you're being prosecuted and tell me whether it matters to you if evidence is allowed from CROOKED COPS.

Let's say there is nothing preventing them from allowing the evidence to be heard, your attorney for your sake could simply say "your honor, this evidence is presented by a KNOWN illegal source, please exclude it".

I think the exclusionary rules just cut to the chase without it making it further.

You may be surprised in me saying no, not always. I don't completely agree with the ruling, and it's explanation written by Scalia is absolutely amazing, but I'll get to that later. If police suspect that the home they are breaking into that has drugs in it is also home to dangerous and potentially armed people, it would be irresponsible for anyone to ask them to knock on the door. If however, there is nor reasonable expectation of danger, the police should have to knock. As for the explanation...it amazes me that Ivy League graduates can come up with this stuff. Imagine that, appeals just because police burst into a non-dangerous person's house without warning...what a world. So, basically, I think that the decision is good and bad, but, in my opinion, mostly incorrect.

I can't predict the future, but this certainly won't provide police with any reason not to do such a thing.

CP

This sounds like how some friends that I have got off from DUI charges... technicalities. Funny thing is that they were drunk when they got caught.

I believe that these nuances don't necessarily protect the innocent as much as they do the guilty, but moreover believe that knocking or not won't protect the innocent any more or less. If the police come knockin' down my door while I'm hangin' out watching the Mavs game tonight, I'm probably going to spill my beer and have to grab the dogs to keep the cops from getting bitten. Simple enough. Then we'll have the PD fix my door and it'll be done. If they were crooked and planned to plant evidence (etc), my door bell being rung wouldn't change the outcome.

However, if I were selling drugs or stolen goods, I'd be upset that they didn't knock because I couldn't flush/hide the evidence? I didn't have time to load my gun or jump out the window?

Aevans, I have to take issues with this. These "technicalities" and "nuances" are our civil liberties/Constitutional rights. You say that these "technicalities" protect the guilty...The people who this would protect have not been tried and been found guilty by anyone. Without these "nuances" you're stripping people of a fundamental American legal right, we're innocent until proven guilty, not the other way around.

I have to say that if we could line up 100 "technicalities" that caused plea bargains and/or people to get off... 90+ would've included guilty parties. The other 10 might not have needed them to get off, but it simply expedited the process.

Let's use my personal experience as a bench mark. In college, I got into a pretty rough tumble at Mardi Gras, in which case some poor rednecks faired rather poorly. We were charged with disturbing the peace, which was absolutely the case. We showed up for the trial, the Parish Sheriff didn't... case dismissed. This has also happened to me very recently in Addison traffic court.

How many technicalities are actually protecting civil liberties? In TX and Louisiana, if you don't blow into a breathalyzer and get a good lawyer, there's a HUGE chance (even on 2nd and 3rd offenses) that you can get off with a lesser charge as the state doesn't choose or want to fight the lack of conclusive evidence. How does this protect our rights? It hasn't directly happened to me, but I have extensive knowledge of those guilty that have been freed...

I'm not advocating a free-for-all... but moreover that notions like knocking aren't necessarily protecting the liberties of American citizens, and that most importantly that some of them actually keep guilty people on the streets. If I live in a "must knock" state, and have a meth-lab in my house... but when the cops come they don't knock, what happens? I'm off scott-free. If I wasn't guilty, I suppose all that happens is that I get accidentally harassed by the cops. How would knockin' change that? I guess the only difference is that my door may remain intact, and i still get harassed????

I'm with you up to a point Aevans. You're meth-lab example is obviously good [assuming police believe the dealers to be dangerous, which tends to be the case]. However, I'm talking about say, a marijuana dealer who isn't violent or a threat in anyway, there is abolutely no need to break into his/her house without knocking...And then there's always the possibility that the person is innocent. Second, my point in saying they aren't guilty is this: there is a difference between having done something illegal and being guilty. Being guilty means you've been given due process and have been found guilty by a jury of your peers. It is dangerous to treat people as "guilty" before a trial because it sets a dangerous precedent.

Again, though, I'm with you for the most part, but I have to draw the line with non-violent suspects, there's simply no reason not to knock first.

CP

And if the evidence proves them guilty, they should be convicted. I don't see why that shouldn't be a no-brainer. Like I said, it would be completely different if there was something to suggest that the evidence was not plausible, but there was absolutely nothing to suggest that in this case. Therefore, yes, this rule does only protect the guilty.

The point is, that by entering without knocking, they are treating the individual as if they are guilty before guilt has been proved. I agree that in certain situations a "no-knock" warrant is justifiable. Barring those special circumstances, police should knock first.

Then they should probably be punished for it. But if the evidence that they obtain nonetheless shows the individual to be guilty, he shouldn't get a windfall because the police screwed up.

Another police powers debate and it looks like we’re ready to call it like we see it—supporting the cops or supporting the bad guys. Try to imagine, if you can, that we’re discussing Tom DeLay, or the Haditha Marines, and approach the ruling from the mantra we love to recite when the need to defend our side arises: innocent until proven guilty. I’m more concerned about the ruling’s affect on my house and my neighbors at this point than what it means to Hudson.


Aside from the castle doctrine, domestic law enforcement is not in the position to decide whether the person named in the warrant has a chance to cooperate, whether or not evidence is found.


Unlike Chomsky my Slate article is fairly short. You could have read it. Now I have to quote sources embedded within the article to make sure you’re not skimming this information.

The article cites one man killed in his home after police shot down his front and back doors in the middle of the night searching for drug evidence. (Link) According to the El Monte Police Department, the narcotics unit fired on Mario Paz after he allegedly picked up a gun. If narc teams think announcing their presence before breaking in places their lives in jeopardy, they aren’t going to wait until you’ve had enough “time to get the gun” to start shooting.



Yes, a person’s door could get knocked down—or blown off—but until the person on the warrant is proven guilty of breaking the law the option to comply with a warrant is not a power invested in law enforcement.


You may be “irked” if someone broke down your door and fired a stun grenade into your living room, but I’d do more than stand around getting irked. I’d be Mario Paz.

Lesly, you make a good point in that I should probably change my answer to the second debate question (though not my answer to the first). If the court held that the officers actually didn't do anything wrong (which seems likely, if they were holding themselves to past precedents), then I'd agree that that would not be good. I don't want to come across as defending the officers' actions; my only point was that regardless of the legality of their actions, there was nothing to impeach the credibility of the evidence itself, and so therefore it should be allowed to stand. We need to find other ways of discouraging police from going over the line, besides turning criminals loose on society.

Both questions for debate can be answered with a big YES. The whole point of excluding evidence which has been obtained illegally is to prevent such illegal procedures from taking place. It is, in fact, the punishment for such violations. This decision states, in effect, that the law enforcement system will face no consequences for breaking the rules. (It is possible that a specific law officer may face consequences, but the system will not.)

In addition to this, I think it can be easily seen that having your door broken down by a large number of people, often wearing masks, screaming at you and aiming guns at you, is a little more than a "technicality" or a matter of not being "polite." If I were to experience such a thing, I would live in terror for the rest of my life.

Assuming that they didn't just go ahead and kill me, because they "know" I am a dangerous criminal.

It is vitally important, in a free society, to restrict the powers of law enforcement severely. There are already procedures to deal with genuine emergencies.

Okay, to ensure that I will not make it to work at a reasonable hour, I lost my mind and read this decision. I found myself oddly torn my the details of the case, and then more predictably disgusted by the scope of the allowance of 4th Amendment exceptions being argued for by the majority decision and the seeming weakness of the majority's legal argument.

In the end I was very impressed by Justice Breyer's dissent including in an odd way, his argument as to why this search could have been upheld with a more sound and limited argument with the same exact circumstances. in other words,Justicee Breyer offered the government an argument to win this case without chipping away at established, long standing, and repetitively upheld interpretations of the 4th Amendment.

Breyer also effectively dismantled Scalia's interpretations of case law and the limitations of the exclusion of evidence based on improper searches.

At the end I agreed with the ruling but was disgusted with the logic behind the ruling.

The police came to a door with a warrant,announcedd their presence and waited three to five seconds without ever knocking. So they announced themselves and waited three to five seconds before entering.




1) Should evidence be excluded from trial if a procedural error occurs in serving a warrant (in this case, failing to knock)? Why or why not?

Yes. If the Fourth Amendment (and to the states through the 14th Amendment) is not upheld in searching our homes, then why do we have the 4th Amendment.



2) Even though Hudson only relates to the suppression of evidence as it relates to the failed procedure, will the decision incent police officers to not announce their presence in the future since there seems little penalty at this point for failing to do so?

Why should we allow police to present cases before the people in a courtroom where they failed to follow the rule of law? In reading Scalia's argument, I found myself frustrated that a person was behind a door and had evidence of his illegal behavior on his person and that the police came with a legally obtained warrant.

He cited case law and an argument and I was unsure of how I felt at the end of his decision.

Then in reading Breyer I got more of a feeling that this decision could have disastrous effects on the Fourth Amendment and that it was a radical departure from existing case law and what I thought the last two nominees were selling in their confirmation hearings, the principle of stare decisis. (Others may be able to demonstrate I have an inadequate comprehension of this concept)

Here is Breyer making the point, that within existing 4th Amendment exceptions, even in a state without no-knock warrants, that police and prosecutors have available to them a defense that does not require that dilution of the knock and wait expectations that protect all of us from an accidental SWAT assault on our premises (are a valid one that most of us would actually respond to be getting up and lawfully answering the door when officers come with a warrant)



(This is my version of cut and paste from PDF formatting so pease excuse the format errors)

What Breyer is saying is that since the warrant involved a search for illegal guns, it is reasonable to argue that the safety of the officers serving the warrant was at stake and that they could reasonably waive (without a judge) the knock and wait rule because of the reasonably expected dangers within. Breyer is saying that under this argument he would have sided with the majority. But that the present ruling and the arguments offered contradict established law in this case. Are there activist judges at work on our Supreme Court?



Here is some setup prior to this point by Breyer that explains (in his opinion) this already existing power granted to enforcement officers. It makes sense to me and it worries me that this was not the argument made to allow this behavior.

In the details, it is frustrating for a criminal to be let go because a police officer did not knock and did not wait the proper but not clearly defined amount of time that let's a person in a private residence have the time to act like a proper citizen and open of the door for law enforcement officials. Emotionally I side with having criminals get caught and convicted for acting criminally.

Logically, however, I love the Constitution and our civil liberties and I have little patience for violating or weakening them. And while I felt that Scalia might have been onto something when he argued that the exclusion of evidence was a radical and relatively recently oft applied remedy for evidence applied because of an improper search, I feel that Breyers dissection of his legal argument effectively obliterates his logic.

1) Should evidence be excluded from trial if a procedural error occurs in serving a warrant (in this case, failing to knock)? Why or why not?

Love the argument that what's the problem if the perp is guilty? That is so last century Miranda rights debate.

Maybe a slippery slope argument can be made that if the legal system gives too much leniency to law enforcement, then we end up with a police state. However, we're getting that anyway with the GWoT, so it becomes a moot argument.

But then an argument can be made that the law enforcement side of things has to be competent. Forgetting to knock when that's a requirement of the warrant is a sign of incompetence. At a critical part of the legal process, law enforcement fell down. Alright, let the evidence go to trial but fire the cops. Well, that's draconian. Suspend without pay for say four weeks. That'll get their attention.

2) Even though Hudson only relates to the suppression of evidence as it relates to the failed procedure, will the decision incent police officers to not announce their presence in the future since there seems little penalty at this point for failing to do so?

Sure. That's a predictable part of human behavior, except incent is not a word. To be perfectly clear, this decision will encourage law enforcement to ignore the rules. I can see how this makes the job easier, but there's a cost involved.

Apparently the SC doesn't mind sticking other people's necks out, nor does it mind incompetence in law enforcement.

BTW, isn't this judicial activism? Just an observation.

Aevans, I hate to tell you this, but your personal experiences are lousy benchmarks. Here's why.

In both cases you cite, as you go to court, you are entitled to see the evidence that proves your crime, and to question any witnesses against you. In the Mardi Gras case, I'm assuming you were seen fighting by a parish deputy, who arrested you.

In the traffic case, whether it was speeding, or missing a stop sign, or whatever, again a law enforcement type either had you on radar, or witnessed the missed stop sign.

In either example however, the key witnesses to your actions failed to show up. There is no one there who can say definitively what it was they saw you do, verify that they read you your rights, or verify how they caught you speeding, or whatever. A technicality? Sure. But also a fundamental civil right.


Oh, I don't know. Let's take a look at a hypothetical here.

Let's say you live next door to where a suspected meth-lab is at, but when the warrant is issued, somehow the wrong address is listed (YOUR HOUSE).

So, the police ram down your door, throw in a flash-bang, throw you to the floor, handcuff you and tell you that they have a warrant, and begin searching your place. Of course, they don't find a meth lab, but they do find that baggie of pot you got from a friend at work today, so you could "unwind" tonight. Oops.

Let's see now. They have a warrant enabling them to search your house for drugs, (your address on the warrant, remember) and they find drugs at your house. Later in the search, they find out you aren't the person they are looking for, and realize their mistake, but they arrest you anyway, for the pot.

What do you do when you go to court, aevans? Do you tell the court that, yes indeed, I'm a bad guy who needs to go to prison, and a mistake by the police doesn't change that? Or, do you argue for the "technicality"?

Why isn't it enough that the offending officer himself should face the consequences? "Systems" don't have feelings, ambitions, independent volition, or anything else of that nature, so there's little more point in trying to punish a "system" than there is in trying to punish a computer. If we're able to effectively punish those who commit the transgressions under color of law, that would take care of the mischief. If we're not, then we have some serious trouble on our hands, regardless of whether or not the exclusionary rule is in effect.



Except, as Scalia pointed out (as you noted), the exclusionary rule is of relatively very recent vintage, basically willed into existence by the Court without any precedential justification. We'd had a Fourth Amendment for over a century by that time, and the legal principles contained in that amendment had been a staple of Anglo-American law for centuries prior to that. In all that time, the remedy was to take action against the individuals who acted improperly, not to punish society by flinging dangerous criminals on them. When you think about it, that's really the response of a terrorist ("Follow the right procedure, or we'll cause innocent people to die").



Love the argument that the date associated with a particular position is somehow an argument against it. That is so argumentum ad calendarium. (yes, I just made that up, but I think it needs to be added to the list of logical fallacies, if it's not already there)

So - what is the problem if the perp is guilty? Shouldn't he be punished for his actions, regardless of what the authorities may or may not have done wrong?


Edited to reply to NiteGuy (who posted at the same time I did):


You've still managed to establish that the exclusionary rule only protects people who are breaking the law. Now you could argue that criminalizing marijuana is a dumb idea, but that's different from arguing that the law can remain in effect, but that people who are caught breaking it should be relieved of having to face the consequences.

If you don't want to see scenarios like the one you describe happen, then argue for a repeal of marijuana laws. Otherwise, your hypothetical scenario could just as easily instead involve a bloody shoe that directly solves a rape/torture/murder investigation that had been ongoing for several weeks. Should the authorities have to ignore that also just because they screwed up and got the wrong address?

Do you mean vintage as in high quality wine? There is plenty of precedent in applying the exclusionary rule, which is why Scalia addresses it fairly soon in the opinion.


Furthermore, Scalia misrepresents the exclusionary rule to support the majority’s ruling. He writes: “But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant.”

The history of the exclusionary rule has taken many forms within our society. In one case, SCOTUS threw out evidence obtained by forcibly pumping out the stomach contents of a defendent after the police were unable to stop him from swallowing the evidence. They were “methods too close to the rack and screw.” In another case SCOTUS allowed evidence to stand after officers took a blood test while the defendant was unconscious after car accident because of the “routine nature of the test and the minimal intrusion of bodily privacy.”

The intent whenever the rule has been applied, regardless of the defendant’s guilt by trial, is checking police powers. Had the court applied the rule in this case, the intent would have remained the same, but Scalia shores up support for his argument by characterizing the application of the rule in Hudson with a non sequitur.

* The exclusionary rule predates Weeks. It was not called such in Boyd v. U.S. (1886). Perhaps Scalia doesn't refer to Boyd because the rule in that case was used to toss out evidence based on protection against self-incrimination instead of search and seizure.

Ignore it? Absolutely not. However, it should be excluded from the evidence presented in a court of law.

Your analogy fails because, even at the wrong house, the search warrant would specify what is allowed in the search - to wit, drugs. So if they find a bloody shoe, and make an arrest based on that, they have illegally seized evidence not specified in the warrant.

I believe you'll find it excluded as "fruit of the poisoned tree", and therefor inadmissable in court. That's not to say that the police can't find another way to make their case, but the bloody shoe would be out.

There is now, but my point that there was none when it was introduced, even though it was introduced at a very late date, comparatively speaking. There were centuries of precedent by that time on the legal principles contained in the 4th Amendment, and even, as your link notes, Supreme Court precedent that Weeks went against (which came after the narrow holding in Boyd).



Yes, that's what current precedent holds, but that wasn't what I was asking you to describe. You were trying to defend that precedent by conjuring up a scary hypothetical scenario, and I was pointing out that your scenario isn't enough to show that innocent, law-abiding people are threatened by it. In fact, it could unnecessarily endanger people.


It's a wishful-thinking assumption to say that they'll just find some other way. The fact is, a critical piece of evidence, very likely the linchpin that makes the difference between getting a vicious criminal off the streets and being unable to do so, is now off-limits. And for no reason that protects innocent, law-abiding folk.

All colored quotes come from the above cited post.

Responding to the red passege Isn't having evidence obtained without following procedure removed from the prosecution a valid remedy. If officers get rewarded for breaking the rules that protect our civil liberties by getting the credit for collars and convictions, won't we tend to celebrate their way to find a way to get things done?



From the majority ruling I cited in my previous post, Scalia himself argues that the knock and enter precedent was based on ancient common law.



And the concept that precedent that was established in 1914 was established so far after the writing of the Constitution seems to invalidate the need for any new interpretations of law whatsoever. It just does not seem like a solid legal philosophy to me. And the sentiment about the remedy before that time was to punish the offending individual and keep the evidence at trials did not show up in my reading of the case. Do you have evidence that the precedented first cited by Scalia for exclusion reversed prior precedent? Do you not see that enforcing the 4th Amendment is protecting society?

This seems to me to be a clearly established and reinforced precedent that should be upheld under the principal of stare decisis. Breyer listed a long set of cases that have supported this precedent since 1914, He also listed an 1886 case that set the foundation for this precedent. Additionally he argued that Scalia's rulings that seemed to erode at this precedent all had the issue of evidence that was obtained outside of the improper search procedure being challenged. In other words, Breyer argues that Scalia's cases do not contradict Weeks.

(case law cited by Breyer)




Okay, I won't go beyond my mother for legal advice here. Do two wrongs make a right? Should the government act illegally (and thus criminally?) to catch criminals? Then who is going to bring the governemnt officilas to justice and what constitutional protection can they wave in doing so?

I've been arguing here that it is not, and I gave a few reasons. The gist of it all is simply that it punishes the wrong people.


Depends on how severe the punishment is for their transgressions. Especially if one of their transgressions happens to violate the rights of an innocent person - which, after all is the whole point of these constitutional protections, protection of the innocent, not shielding the guilty from the consequences of their criminal behavior.

Let me ask you this: If the authorities were to violate your rights under color of law, of what comfort would it be to you, a law-abiding citizen, to know that if you had been guilty of some crime, you'd have been able to get away with it? Of what use would such a "remedy" be to you at that point?


The fact that it was established so far after the writing of the Constitution, and even went against earlier precedent (more on that below), raises serious questions about its validity, in my view. The Supreme Court doesn't have the power to just amend the Constitution on its own, and that's essentially what it affected to do in that case. It didn't like the Constitution as it had been universally understood up to that point, so it decided to change it. That's overstepping its bounds.


Lesly's link in #21 above made reference to the 1904 case of Adams v New York. The opinion of the court begins on page 594, and that and the next few pages outline the precedents as they had existed up till then, and the ruling supports them. Note that this opinion was delivered after that narrow ruling in the 1886 case you mentioned that purportedly provides the basis for Weeks.


Once a precedent is laid down, it's only natural that it would be repeated. That doesn't make it any more proper. If the Court overstepped its bounds the first time, the impropriety doesn't get mitigated simply through repetition.


Absolutely not, which is all the more reason to be against the exclusionary rule. The wrong committed in conducting an illegal search does not get righted by the wrong committed in turning a criminal loose on society.


The question of who is to bring lawless government officials to justice is a very good one, and it needs to be answered regardless of whether or not we continue with the exclusionary rule. If the exclusionary rule is the only protection we're to have, then like I said above, it would do nothing to protect law-abiding people against tyrannical authorities. There absolutely needs to be some way of making sure the individuals committing the illegal acts under color of law can themselves be punished, or we're in trouble. Precisely how that's to be done could merit its own discussion, but what's clear is that it has to be done.

It would be of little remedy, and I do have others. But what is to stop officers from abusing our system of democratic criminal justice in order to get someone they know is guilty. It is hard to argue against this when we see criminals getting off, but this is one of the facets that makes democracy hard and not like the way Dirty Harry would like it to be.

In the right back at you category: Let me ask you this: Why did this case need to go after the exclusionary rule? If what Breyer argues is correct, police searching for weapons could argue that the threat to their lives in carrying out a warrant justified a knockless entry. This case seemed to have been winnable without trying to overturn nearly a century of protections of our private homes.



I still don't see an earlier precedent that fits your qualification. If 1914 is too far down the road, why is 1904 far superior. I am not seeing the universal understanding up to this point in reading your posts on this thread. I do see a clear and convincing argument in the Breyer dissent. I'll dig into the case you linked to, but I don't recall the USSC referring to it in the decision. (of course I easily could have missed it)





No, by your logic and by the definition of stare decisis I linked to it is not only natural that it would be repeated. Each USSC that addresses this issue should be looking at the precedent and agreeing with the basic interpretation. But as the precedent gets reinforced over several decades and several courts, that creates a pretty strong legal tradition that calls for a pretty compelling reason to overturn. (IMHO) And I don;t see that here.

Questions for Debate:
1) Should evidence be excluded from trial if a procedural error occurs in serving a warrant (in this case, failing to knock)? Why or why not?

Thomas is really letting me down lately. Everyone admits this is a knock and announce violation. If the remedy is not suppression of evidence, then the precendent is set and everyone is in more danger because of this.

2) Even though Hudson only relates to the suppression of evidence as it relates to the failed procedure, will the decision incent police officers to not announce their presence in the future since there seems little penalty at this point for failing to do so?

Yes, despite the fact that this is in place partially to protect the officer. How are we supposed to distinguish a real intruder from a police officer? This is unfortunate.

Do you realize you just answered your own question in your first sentence?


This is an interesting response, because I'm almost getting the impression from you here that if a solution is too easy, it must be the wrong one. It's almost like difficulty is regarded as a virtue in itself, rather than the unfortunate side effect of a virtuous approach. But just because a particular approach makes things more difficult for everyone, it doesn't mean it's the right approach.

I'm reminded of something I once read on the subject of compromise. The commentator said that the traditional view of compromise is that half a loaf is better than no loaf at all. But that the modern view actually seemed to be that half a loaf is better than the whole loaf. In other words, our political culture seems to have trained itself to believe that there's something inherently wrong with getting everything. Obviously it's not going to be possible most of the time, which is why compromise is a necessary thing. But that doesn't mean we should recoil from it when it is possible.


I'm not fully familiar with the details of the case itself. You may be right that from a purely professional perspective, it may have been more proper to decide this case in a way that didn't go against any precedent (if indeed it did). Nonetheless, I would still argue that the precedent is inherently flawed, and really needs to be overturned. Whether it's done in this case or in some future case isn't really all that important in the final analysis.


Like I said, the opinion of the court in the 1904 case begins on page 594, and the first few pages of that opinion detail the precedents that had existed up till then. And according to Lesly's "FindLaw" link, the 1914 case went against those precedents for the first time ever. If there had been any support for the exclusionary rule for 4th Amendment cases prior to then, the 1914 case surely would have referred to them.

Now that means there's only one of two choices: 1. In the centuries during which the principles outlined in the 4th Amendment had been part of Anglo-American law, there had never been an instance in which evidence from an illegal search had been used against a defendant, or 2. The universal understanding prior to 1914 was that the fact that evidence was from an illegal search did not mean it couldn't be used against a defendant. Which do you honestly think is the more likely of the two?


Except that's not the way it works. If you look at most Court cases, they'll simply lay down some legal postulate in the course of their opinions, followed by one or more citations. And your link says nothing about how stare decisis involves subsequent courts "agreeing" with the precedent, and even points out that courts consider themselves obligated to uphold them even if they would have ruled a different way if no precedent had existed.


The compelling reason is that there was no legal justification for it to begin with. This went beyond mere interpretation, to an outright attempt at constitutional amendment. There's also little moral justification for it, because it allows criminals to escape justice for reasons having nothing whatsoever to do with lack of proven culpability on their part.

I think we've fairly effectively asserted our differences of interpretation on this issue. no need for a point by point re-rebuttal. I think I understand most of your points and logic for this issue.

However, I do think this is a false choice being put forward. Shouldn't there also be precedent from the centuries of evidence of illegal searches being allowed to feel so confident that the departure is the exclusionary rule.

And to argue from two different sides. How far back do we really want to go in this case. The modern municipal police force for one thing is a creature of the 19th century. And the justice system as well as the traditional view of equality before the law really emerged during the 18th century in the Enlightenment.

Truth was not even a defense in a libel case before the eighteenth century. So we really don't want to rely on too much legal tradition from before 1776.

In summary, I do not concede your assertion of a universal understanding that existed back to the mists of time because we do not have an earlier precedent on either side.

It's not a question of "wanting". Except in cases where we've made deliberate changes to our laws (as with the First Amendment), legal tradition from before 1776 is a part of our legal landscape. Certainly it's not within the power of judges to make it otherwise, regardless of whether they "want" it or not. Only the people and their legislative agents can do that.


But we do. Adams v New York, cited above, does outline earlier precedents. I would also direct your attention to this PDF law review article, particularly page 6, paragraph (d) and accompanying footnotes. Amar shows that even civil suits against those who conduct warrantless searches on little more than a hunch would get dismissed if it turns out that the search turned up evidence of felonious activity. Of course, if it turned out the hunch was wrong, then the searcher could be subject to legal action. In other words, it's like I said before: These protections were put in place to protect the innocent, not to protect the guilty. The Supreme Court just up and decided otherwise in 1914.

Well I guess I was being a little misleading, but yes my point is that much of the legal tradition from the days of stocks, racks, drawing and quartering, and debtors prisons have been removed by legislation.

You are asserting, away from the USSC precedents cited in the decision at hand, that before 1914 there was a right to use evidence gained from searches that violate the 4th Amendment as attached to the states via the 14th Amendment in 1867. As should be obvious by now, I disagree with your conclusion that the Supreme Court has "wanted" to make law. But it is in their powers to review the Constitutionality of the laws and the enforement of the laws. From 1914 to 2006 the court consistently felt that the exclusionary rule was a proper protection for our Civil Liberties. I understand that you feel that any action that reveals criminal activity should be allowed and should not protect that criminal from prosecution. To me that is just a carte blanche for mass monitoring of our lives. I think that creates a dangerous environment that further empowers a government that is amassing greater and greater control over our lives.

And my point is that the 4th Amendment didn't involve any change in English legal traditions as regards searches and seizures. It merely incorporated them into the Constitution. Nothing in the history of the development of that amendment suggested that we were breaking new ground in any way. It was for the most part a reaction againt the violation of the principles of English law committed by the colonial authorities here in America before the revolution.

Much of the Bill of Rights is like that, just restatements and codifications of legal principles already considered to have been in existence, just to make sure that they stay respected.


I can't speak for what their actual hearts' desires were, but that's exactly what they did, or purported to do. Stare decisis was pretty much thrown out the window in the Weeks ruling. I've given you citations to show that the view expressed in that ruling was never the view prior to that. You will not find any citation from that period that supports it. None. There comes a point where a ruling crosses the line from mere interpretation to a naked attempt at amendment in violation of Article V of the Constitution. The Court crossed that line in 1914.

You say you disagree with that conclusion, and yet your own statement that I quoted at the top of this post, in the context of the exchange, reveals that you essentially agree that what the Court did was at least analogous to making new legislation.


It's not just how I feel, it's what the law actually was, and really still is, the Supreme Court's violation of it notwithstanding. And it does not give carte blanche for mass monitoring. In fact, the exclusionary rule does absolutely nothing to protect against monitoring for purposes other than obtaining criminal convictions (see the NSA stories in the news recently). It does nothing to protect innocent people, only guilty people.

As a matter of fact, by acting as a substitute for the proper remedy against such abuses (namely, bringing legal action against those who commit them), that invented rule actually weakens that proper remedy and puts all our privacy in that much greater jeopardy.