Mixed messages on the exclusionary rule.

In Hudson v. Michigan, the Supreme Court, by a 5-4 vote, held that evidentiary exclusion is not required when police violate the Fourth Amendment by failing to properly knock and announce their presence to a suspect before executing a search warrant. (1) While this is itself an interesting issue, the more important question is whether the decision represents a significant undercutting of the exclusionary principle laid out in Mapp v. Ohio. (2)

Four justices in the majority--Antonin Scalia (the author), Clarence Thomas, John Roberts, and Samuel Alito--appear ready to eviscerate the exclusionary principle. The rule was saved from this fate in Hudson only by a confusing (or confused) concurring opinion written by Justice Anthony Kennedy.

In Hudson, police officers executing a search warrant violated the knock-and-announce rule of Wilson v. Arkansas (3) by waiting only a few seconds after they knocked before they broke into Booker Hudson's house. The officers made no claim that exigent circumstances justified their unannounced entry. (4) So Hudson squarely presented the question of what is an appropriate remedy for this Fourth Amendment violation.

In the most disturbing part of the majority opinion, the Court declared that "suppression of evidence ... has always been our last resort, not our first impulse." (5) The majority rejected as "expansive dicta" language in Mapp that declared a mandatory exclusionary rule for all Fourth Amendment violations. Many previous Court decisions had considered this language to be Mapp's central holding.

The majority further wrote that "exclusion may not be premised on the mere fact that a constitutional violation was a 'but for' cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression." (6) In other words, even if the police would not have obtained the evidence except for the Fourth Amendment violation, the evidence does not necessarily have to be suppressed.

After dismantling four and a half decades of Fourth Amendment law with "expansive dictum" of its own, the Court pointed out, more germanely, that evidence found after a knock-and-announce violation is not found as a result of that violation. (7) Consequently, suppressing that evidence makes less sense than it does in the usual case, where the illegal search produces evidence that would not have otherwise been found. This reasoning is generally consistent with the reasoning of the "independent source" (8) and "inevitable discovery" (9) cases.

Moreover, the Court pointed out that the purpose of evidentiary exclusion is deterrence of police misconduct, and "deterrence of knock-and-announce violations is not worth a lot." (10) Police officers are already exempt from the requirement if they have reason to believe that it would be "dangerous or futile" to follow it, the Court noted. (11)

Given this reality, exclusion for a knock-and-announce violation would apply only in the unusual case, like this one, where the police couldn't come up with a reasonable explanation for why they failed to knock or to wait an appropriate amount of time (about 15-20 seconds, according to the Court's ruling in a previous case). (12) This would be a high cost for a very small gain in civil liberties.

The Court continued with a paean to civil suits as a remedy for Fourth Amendment violations, such as this one, that don't directly lead to the discovery of evidence. The Court had already recognized that an unnecessary destruction of property during an otherwise legal search might be a Fourth Amendment violation, subject to civil suit, but not a basis for evidentiary exclusion. (13) The same, the majority reasoned, should be true for knock-and-announce violations. (14)

But this reasoning is fatuous. It is easy to imagine a successful civil suit for needless destruction of valuable property during a search. But what are appropriate damages for failing to wait the required 15 to 20 seconds? Certainly they would be too small to encourage any attorney to bring such a case, especially when he or she stands to be paid only 1.5 times actual damages. (15) Clearly the impact of this decision is to remove the knock-and-announce requirement from Fourth Amendment protection.

Kennedy, concurring in part, seemed to buy the majority's line on civil suits, stating solemnly that "the Court's decision should not be interpreted as suggesting that violations of the [knock-and-announce] requirement are trivial or beyond the law's concern."

Nonsense! I have no doubt that days after this decision was rendered, memos (or at least phone calls, for those who didn't want to encourage Fourth Amendment violations in writing) went out from police department lawyers around the country, telling police officers, "You no longer have to knock and announce." Every nonlawyer with whom I discussed this case understood that this was the impact of the majority's decision. Only a (naive) lawyer could think otherwise.

But Kennedy did save the exclusionary rule--at least for now. "The continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt," he wrote. "Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression." (16) Oddly, he joined the part of the decision that trashed the exclusionary rule, but he refused to join the part that had, comparatively inoffensively, likened this case to three other cases to bolster the majority's conclusion. (17)

Exclusion as last resort?

In his dissent, Breyer laid waste to the majority's claim that the outcome of this case was somehow consistent with prior case law. The use of evidentiary exclusion is hardly a last resort, Breyer wrote. He noted that the Court has declined to apply the rule in only two kinds of cases: first, "where there is a specific reason to believe that application of the rule would 'not result in appreciable deterrence,'" (18) and second, "where admissibility in proceedings other than criminal trials," such as grand juries and probation revocation hearings, "was at issue." (19)

This case, by contrast, was an ordinary criminal trial, and deterrence would result from application of the rule. In fact, the majority argued that a cost of applying the rule here was "over-deterrence." In other words, that police would hesitate too long to enter and as a result lose a chance to uncover evidence. (20) As Breyer pointed out, with the exceptions mentioned, in every Fourth Amendment case since the exclusionary rule was put into place, "the Court ... has ... upheld the suppression of the evidence at trial." (21)

The plurality (not joined by Kennedy in this part) cited Segura v. United States (22) to support its conclusion. (23) In Segura, police officers, acting with probable cause, illegally entered an apartment and stayed there for a long time. In the meantime, other officers got a search warrant based solely on information obtained before the illegal entry. They all then conducted an authorized search.

The Court suppressed the evidence found during the illegal entry but allowed evidence found during the search, on the ground that the warrant was an independent source of the evidence. But here, as Breyer pointed out, the search was not independent of the violation, since it was carried out by the same officers who committed the violation, immediately after it: "Their unlawful behavior inseparably characterizes their actual entry...." (24)

The most disturbing aspect of the plurality's reasoning implicates the search warrant requirement. If police officers have probable cause to enter but fail to get a search warrant, then the Court seems prepared to conclude that such an "oversight" is too "attenuated" from the discovery of evidence, since the officers could have gotten a warrant and found the evidence anyway.

This reasoning undermines the essence of the Fourth Amendment. We can only be sure about what kind of information the police had before a search if we require them to submit it to the magistrate ahead of time. Do the justices really want to go back to the days when the police searched first and manufactured probable cause later?

Despite these misgivings, I agree with Kennedy that evidence should not be suppressed because of a knock-and-announce violation. The cost of excluding evidence over a police officer's impetuosity that denies the suspect 15 or 20 seconds of privacy is too high.

Moreover, essentially waiving the knock-and-announce requirement, which the Court has done, will not result in many more no-knock entries, since the police already can enter without knocking if they can show they had reason to believe that knocking would be dangerous or futile--and they usually can. Further, many police officers consider it prudent to knock, and to bring uniformed officers, to assure the suspect that it really is the police at the door--rather than, for example, a rival drug gang.

The better way to have handled this issue would have been to hold that the Fourth Amendment does not require knock-and-announce. Now, the Court has put itself in the disreputable position of solemnly declaring a Fourth Amendment right and then inviting police officers to violate it, while providing no realistic remedy for violations. (25)

Notes

(1.) 126 S. Ct. 2159 (2006).

(2.) 367 U.S. 643 (1961). Mapp applied the exclusionary rule to the states. Weeks v. United States had applied it to violations by federal officials. (232 U.S. 383 (1914).)

(3.) 514 U.S. 927 (1995). The Wilson court specifically declined to decide what the remedy would be for such a violation. Id. at 937 n. 4.

(4.) Hudson, 126 S. Ct. at 2162-63.

(5.) Id. at 2163.

(6.) Id. at 2164.

(7.) Id. at 2164-65. This leaves aside the unusual case where, for example, someone in the house says something incriminating in response to the sudden entry by the police.

(8.) Segura v. United States, 468 U.S. 796 (1984).

(9.) Nix v. Williams, 467 U.S. 431 (1984).

(10.) Hudson, 126 S. Ct. at 2166.

(11.) Id. (quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)).

(12.) This amount of time, which the Court posited in United States v. Banks, is based not on how long it would take the resident to get to the door, but on how long it would take to destroy the evidence. (540 U.S. 31, 40-41 (2003).) Thus, it would be longer if the evidence were difficult to destroy.

(13.) United States v. Ramirez, 523 U.S. 65, 71 (1998).

(14.) Hudson, 126 S. Ct. at 2170.

(15.) See Remarks of Yale Kamisar, Term in Review, 75 U.S.L.W. 3089, 3090 (2006), referring to the Prison Litigation Reform Act's limit on attorney fees.

(16.) Hudson, 126 S. Ct. at 2170.

(17.) Those cases were Segura, 468 U.S. 796 (1984); New York v. Harris, 495 U.S. 14 (1990); and Ramirez, 523 U.S. 65.

(18.) Hudson, 126 S. Ct. at 2175 (Breyer, J., dissenting). This would include United States v. Leon, 468 U.S. 897 (1984), where police acted in good-faith reliance on a defective warrant issued by a judicial officer, and Walder v. United States, 347 U.S. 62 (1954), where illegally obtained evidence in a criminal case was used only for impeachment purposes.

(19.) Hudson, 126 S. Ct. at 2175 (Breyer, J., dissenting).

(20.) Id. at 2166.

(21.) Id. at 2176 (Breyer, J., dissenting).

(22.) 468 U.S. 796.

(23.) Hudson, 126 S. Ct. at 2168.

(24.) Id. at 2177 (Breyer, J., dissenting).

(25.) Interestingly, courts in many other countries, as well as the European Court of Human Rights, have rejected the Mapp rule of mandatory exclusion of evidence that has been discovered by police officers in violation of search-and-seizure rules. Rather, exclusion of evidence by judges in these courts occurs selectively. See Craig M. Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375 (2001).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].