Crime & Federalism

Absent extreme circumstances, the Fourth Amendment prevents police officers from kicking down a citizen's door when executing a search warrant.  The police are required to knock on the door, announced their presence, and wait from 20-30 seconds before kicking down a citizen's door.  This is the so-called "knock and announce" rule. 

The Fourth Amendment mandates that evidence obtained through unconstitutional searches be suppressed.  If the police would have found the evidence anyway, i.e., they would have found the evidence even if they hadn't violated the citizen's Fourth Amendment rights, then courts will not suppress evidence obtained unconstitutionally. This is the inevitable discovery doctrine. 

This Term, the Supreme Court will answer this question: How do we reconcile the inevitable discovery doctrine with the knock and announce rule.  More formally, the Court will answer: "Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a Fourth Amendment 'knock and announce' violation ... or is evidence subject to suppression after such violations...?"

The Cato Institute has filed, as they usually do in important civil rights cases, an extremely interesting amicus brief. For the first time I can remember, I disagree with Cato's position in a criminal case, and I support the government's position.

I'll note initially that I don't care for the exclusionary rule.  If anything, the exclusionary rule has made police officers more lawless. Before the exclusionary rule, police officers unconstitutionally searched and seized evidence, and they truthfully told the judge how they obtained the evidence.  After the exclusionary rule, police began perjuring themselves, since they viewed the exclusionary rule as a mere technicality.  In other words, same result (evidence is admitted), different process (the police lie).  See Morgan Cloud, The Dirty Little Secret ("Police perjury is the dirty little secret of our criminal justice system. It is 'dirty' in the way that any lie under oath is dishonest, unfair, and unethical. But it is a uniquely corrupt lie, because it is offered by government officials who are sworn to enforce and uphold the law.")

Lying degenerates a person's soul.  It throws off one's moral compass.  The more a person lies, the easier it becomes to lie, until the person no longer knows deceit from truth, moral from immoral.  Many (not most, but many) police officers, because of the exclusionary rule and the way it encourages police perjury, are utterly debased.  In a perfect, or even good world, prosecutors would prosecute police for perjury.  But we don't live in a good world.  Indeed, when one assistant district attorney suggested to a supervisor that he thought a police officer had perjured himself, he was demoted.  Garcetti et al. punish A.D.A for seeking justice. Because I think the exclusionary rule has caused more harm than good, it's not hard to persuade me that it should not apply in Hudson. 

Cato's position is that the police would have no incentive to follow the knock-and-announce rule if they know any evidence obtained through a breach would not be excluded.  Yet if the police have a warrant to search someone's home, they're going to discover whatever illegal evidence is in the home, unless the suspect first hears them coming and destroys the evidence.  Moreover, a person can file a section 1983 action against the police for violating their rights by not knocking and announcing.  Fear of civil liability should provide enough of a deterrent to police misconduct.  Failure to knock and announce is actionable under section 1983.

I don't know how this case will be decided.  But it will be well argued.  David Moran of Wayne State is representing the individual rights side of the case.  Mr. Moran is, by all reports, knowledgeable, talented, and gracious.  Good luck.

By the way, feel free to persuade me that my views on the exclusionary rule are wrong.  I'm open-minded, so do leave a comment.