KNOCKDOWN
On Thursday, the Supreme Court issued its opinion in the case of Hudson v. Michigan. The case was argued this past winter. Justice O'Connor participated in oral argument. After she retired, the court was deadlocked, 4-4, as to how to dispose of the case. Once Strip Search Sammy Alito came on the court (and how!), re-argument was set. He asked a few questions. Clarence Thomas again exercised his right to remain silent (and asleep).
The case itself is a bit of a case study in the lengths parties will go to in order to have the Court decide upon a precise issue, and a case study in the length the Court will go to - when it chooses to - to decide more than it has been asked to.
A man by the name of Hudson was suspected of having cocaine in his home. The police, having obtained a warrant to search the premises, waited about three seconds, announced their presence, and then, without knocking, simply opened the (unlocked) door to the home. They then entered, seized the drugs, and placed Hudson under arrest. (A 2003 case, U.S. v. Banks, held that a ten-second waiting time before barging in to seize drugs is reasonable, thereby negatively implying that anything less is not. 2 cases decided in the mid '90's, Wilson v. Arkansas and Richards v. Wisconsin, held that failure by the police to knock and announce their presence, all other things being equal, weighs against a finding that a search/seizure was reasonable). The warrant that was "executed" in this case was an ordinary search warrant, as opposed to a "no-knock" warrant that many states permit the issuance of (such warrants allow police to enter a home without knocking and announcing if the police can demonstrate to the magistrate that probable cause exists that grave concerns for safety or destruction of evidence justify dispensing with the requirement of knocking and announcing).
Michigan does not permit the issuance of no-knock warrants. The trial court, applying the so-called "exclusionary rule" (which dictates that the product of an illegal search be excluded from evidence at a criminal trial) held that since the police failed to honor the knock and announce requirement without a compelling reason for doing so, the search violated the 4th Amendment, and hence, the fruits of the search had to be excluded from evidence. The Michigan Court of Appeals reversed. The Supreme Court of the U.S. upheld the Michigan Court of Appeals' decision.
Both parties stipulated that the police committed a 4th Amendment violation. (As Justice Breyer, in dissent, hinted, the state's willingness to do this was more than a little arrogant; it was as if the state was saying, "Yeah, we're not even going to try to say what we did was legal - just let us use the evidence, Supreme Court). A state more sensitive to common sense (not to mention commoners) might simply have argued that exigent circumstances existed such that the dispensation with the knock and announce requirement was justifiable. Had the state prevailed upon this argument (and Justice Breyer suggests it would have), the case would not have been before the Court, and there would have been nothing to have been supressed. The current Supreme Court majority has tacitly encouraged its preferred litigants to stipulate to unlawful behavior so that it can give its approval to such behavior. It has taken cases on certiorari in violation of its own rules for deciding what cases "win the cert lottery" (cases reflective of circuit splits, cases where federal law needs clarification, and so forth), taking cases solely to decide them against the respondents for the sake of changing the law in a particular area, especially in the statutory arena. (Justice Scalia has endlessly bleated that the Court should be reluctant to overrule itself in statutory cases, since, after all, Congress can effectively do such overruling itself, but the current majority has shown no hesitancy in overruling cases dependent upon statutory construction - just for the sake of it. Its record of doing this in employment discrimination law, for example, is so shameless that George H.W. Bush signed massive legislation in 1991 that legislatively overruled some activist butchery the Court committed in 1989. Of course, Scalia is allowed to complain that the Court should "be most willing to overrule itself in constitutional law," without being called on his jurisprudential hypocrisy).
At any rate, the Supreme Court ruled, 5-4, that evidence seized in violation of the knock and announce rule is not subject to the exclusionary rule. Alito, Roberts, Thomas and Scalia stated (not held, thankfully; the actual holding was Kennedy's concurrence, the narrowest grounds that supported the basic principle of law gleaned from the case) that the exclusionary rule NEVER applies to such evidence. Indeed, Scalia's entire opinion reeked of explicit and implicit disdain for the exclusionary rule. If he were the straight shooter (gay shooter?) he claims he is, he should have announced his belief outright that it should be abolished with respect to ALL 4th Amendment violations (i.e. failure to enter with a warrant, and so on). But no - the man who ripped Justice O'Connor apart 17 years ago in Webster v. Reproductive Health Services for refusing to overrule Roe v. Wade on the spot has now done an about face, preferring to ravish the 4th Amendment's protections bit by bit. Such are the workings of a man who knows that Justice Holmes' phrase "a page of history is worth a volume of logic" puts the lie to his "truths."
And what are the "truths" Scalia claims justifies abandoning the exclusionary rule in the knock-and-announce venue? (Kennedy explicitly stated that the exclusionary rule is still alive and well, that a knock and announce violation is a serious matter, and that if police now begin violating the rule indiscriminately, the case may have to be revisited).
The "truths" are not factual truths. Since the inception of the exclusionary rule as it applies to the states (Mapp v. Ohio, 1961), the Court has held that the exclusionary rule should not apply to a 4th Amendment violation ONLY when no deterrence value would be achieved by excluding the evidence. Thus,for example, if a station clerk's error led the police to search the wrong man's home in good faith, exclusion of the evidence so obtained would not encourage deterrence of 4th Amendment violations on the part of the police, since the police in this factual scenario did not intend to violate the rule in the first instance. A good-faith policeman is assumed to act as a "reasonable officer would and should in similar circumstances" (i.e. as compared to police who execute similar warrants but who were not given the false information); hence, no deterrence value is achieved by punishing him. An officer, however, who violates the 4th Amendment, is not a good-faith policeman and therefore does not act as a reasonable officer; hence deterrence value IS achieved by punishing him. Scalia's argument to the contrary basically consisted of speculation as to how a police officer will now act now that he can violate the 4th Amendment with impunity. According to Scalia, such an officer will not have an incentive to break the law - his incentives will be the same as they were if he wanted to break the law - protection of his safety and obtaining evidence. This argument misses the point: under the Court's precedents, the inquiry is whether the officer intends to violate/is capable of violating the rule if he knows that evidence will be excluded - NOT what incentive believes he will gain for violating it. The officer in the clerk hypothetical above cannot violate the 4th Amendment no matter how much he wants to because he cannot compel the clerk to make the accidental mistake. However, an officer who arrives at a suspect's doorstep has no shackles placed upon his intentions to violate the rule - and none placed upon his ability to do so. Therefore, the "no deterrence value" argument does not apply to this officer. Indeed, the only way the officer can be deterred (since his mind can dream up a way to violate the knock and announce requirement if for no other reason than to frighten a suspect in the hopes that the suspect may piss on the floor and that the piss will test positive for cocaine - so much for Justice Scalia's deliberately crabbed marble palace "incentive" psychoanalysis) is by excluding the evidence.
Not so, Nino says. 42 U.S.C. 1983 actions can be brought against such officers. Nino says that such trials (which almost are always unsuccessful simply because Plaintiffs cannot overcome the state's immunity arguments, and the reason they cannot overcome them is because of.... Justice Scalia) have - as fact - been shown to have deterrent value. He offers no empirical support. Of course, there is none. The few plaintiffs that have prevailed in such trials can only be afforded essentially monetary relief - and what kind of monetary relief are they going to get? Money representing the value of their cocaine?
Scalia then says that "citizen watchdog groups" have been effective (unfortunately, for him) in preventing knock-and-announce abuses. No evidence is cited. Scalia would be the first person alive to jump up and declare that such citizens have no standing to bring any kind of suit against police or the state for knock and announce violations. He then claims that police undergo more rigorous training now than in years past as to how to comply with the 4th Amendment. Ironic, then, that the number of 4th Amendment violations is higher now than in the good old days (perhaps 42 U.S.C. 1983 isn't working there, Nino?) At any rate, what he fails to mention is that this "training" consists primarily of instruction in how to barely (if at all) comply with 4th Amendment law, with the training featuring extensive lectures about the latest tip sheets on how to do this (tip sheets? Sorry.. I meant "judicial opinions") from Fat Tony Scalia, Sloppy Sammy Alito, John Robots, Slappy Thomas, and Tony "Mugwump" Kennedy. If that's training, I'll take "you're doing a heck of a job" incompetence.
But Scalia saves his best argument as to why police will be deterred from violating the knock and announce rule for last: according to him, police who violate the rule face discipline - even the threat of termination! Thus, they have a career incentive, you see, to follow the Constitution. We know this is true. See, e.g., the Bush Administration as an example of living proof of the fact that the following the Constitution is the equivalent of getting a work-for-life agreement out of the government.
But enough laughter. Let's turn to the police example specifically. Scalia's argument presumes that an officer's superiors are actually made aware of 4th Amendment violations by their subordinates, and that, once made aware, these superiors (now flush with evidence that will put people in jail) will react angrily and fire the police who nabbed the evidence (presumably after the trial, once the policeman has given the testimony needed to put the criminal -who, by the way, in this case, happened to be black) behind bars. As for the "being made aware" assumption, Scalia has made sure of the fact that superior officers and district attorneys need not burden themselves with having to be made aware of such violations, or of accusations of same. In Garcetti v. Ceballos, decided several weeks ago, the Court, with Scalia in the majority, held 5-4 that a D.A. who told his boss that a policeman who committed an improper search did not engage in protected speech activity even though the relevation was a matter of public concern. Thus, the Court held, such employees - employees who are the people most likely to know what a 4th Amendment violation is, and the only ones to care to report one - can be FIRED. The cop in this case was not fired. Yeah, his "career incentives" went down the drain, along with the piss from the golden shower that the L.A.P.D. took on Mr. Ceballos. Scalia can make stupidly disingenuous comments like "career incentive" precisely BECAUSE he knows - firsthand, shall we say, that they are not true.
So, the Court in Hudson failed to explain why it departed from decades-long precedent in abandoning the exclusionary rule. It billowed and bellowed out some smoke about the need to arrest criminals, to ensure police safety, and other generic "law and order" concerns that have never been found adequate to justify abandonment of the exclusionary rule. Scalia and his ilk claim to hate balancing tests as methods of legal analysis and rulemaking. But when he wants to abandon precedent to suit his convenience, the 4th Amendment somehow miraculously becomes subject to a "balancing test": the needs of law enforcement vs. the importance of not surprising someone in her nightclotes. The Framers, of course, hardly intended for this Amendment to be subject to a balancing test. And Scalia of all people should know that. After all, he has them on speed dial. Or maybe not. Maybe they've finally stopped talking to him. If so, pity that he hasn't taken the hint.
The case itself is a bit of a case study in the lengths parties will go to in order to have the Court decide upon a precise issue, and a case study in the length the Court will go to - when it chooses to - to decide more than it has been asked to.
A man by the name of Hudson was suspected of having cocaine in his home. The police, having obtained a warrant to search the premises, waited about three seconds, announced their presence, and then, without knocking, simply opened the (unlocked) door to the home. They then entered, seized the drugs, and placed Hudson under arrest. (A 2003 case, U.S. v. Banks, held that a ten-second waiting time before barging in to seize drugs is reasonable, thereby negatively implying that anything less is not. 2 cases decided in the mid '90's, Wilson v. Arkansas and Richards v. Wisconsin, held that failure by the police to knock and announce their presence, all other things being equal, weighs against a finding that a search/seizure was reasonable). The warrant that was "executed" in this case was an ordinary search warrant, as opposed to a "no-knock" warrant that many states permit the issuance of (such warrants allow police to enter a home without knocking and announcing if the police can demonstrate to the magistrate that probable cause exists that grave concerns for safety or destruction of evidence justify dispensing with the requirement of knocking and announcing).
Michigan does not permit the issuance of no-knock warrants. The trial court, applying the so-called "exclusionary rule" (which dictates that the product of an illegal search be excluded from evidence at a criminal trial) held that since the police failed to honor the knock and announce requirement without a compelling reason for doing so, the search violated the 4th Amendment, and hence, the fruits of the search had to be excluded from evidence. The Michigan Court of Appeals reversed. The Supreme Court of the U.S. upheld the Michigan Court of Appeals' decision.
Both parties stipulated that the police committed a 4th Amendment violation. (As Justice Breyer, in dissent, hinted, the state's willingness to do this was more than a little arrogant; it was as if the state was saying, "Yeah, we're not even going to try to say what we did was legal - just let us use the evidence, Supreme Court). A state more sensitive to common sense (not to mention commoners) might simply have argued that exigent circumstances existed such that the dispensation with the knock and announce requirement was justifiable. Had the state prevailed upon this argument (and Justice Breyer suggests it would have), the case would not have been before the Court, and there would have been nothing to have been supressed. The current Supreme Court majority has tacitly encouraged its preferred litigants to stipulate to unlawful behavior so that it can give its approval to such behavior. It has taken cases on certiorari in violation of its own rules for deciding what cases "win the cert lottery" (cases reflective of circuit splits, cases where federal law needs clarification, and so forth), taking cases solely to decide them against the respondents for the sake of changing the law in a particular area, especially in the statutory arena. (Justice Scalia has endlessly bleated that the Court should be reluctant to overrule itself in statutory cases, since, after all, Congress can effectively do such overruling itself, but the current majority has shown no hesitancy in overruling cases dependent upon statutory construction - just for the sake of it. Its record of doing this in employment discrimination law, for example, is so shameless that George H.W. Bush signed massive legislation in 1991 that legislatively overruled some activist butchery the Court committed in 1989. Of course, Scalia is allowed to complain that the Court should "be most willing to overrule itself in constitutional law," without being called on his jurisprudential hypocrisy).
At any rate, the Supreme Court ruled, 5-4, that evidence seized in violation of the knock and announce rule is not subject to the exclusionary rule. Alito, Roberts, Thomas and Scalia stated (not held, thankfully; the actual holding was Kennedy's concurrence, the narrowest grounds that supported the basic principle of law gleaned from the case) that the exclusionary rule NEVER applies to such evidence. Indeed, Scalia's entire opinion reeked of explicit and implicit disdain for the exclusionary rule. If he were the straight shooter (gay shooter?) he claims he is, he should have announced his belief outright that it should be abolished with respect to ALL 4th Amendment violations (i.e. failure to enter with a warrant, and so on). But no - the man who ripped Justice O'Connor apart 17 years ago in Webster v. Reproductive Health Services for refusing to overrule Roe v. Wade on the spot has now done an about face, preferring to ravish the 4th Amendment's protections bit by bit. Such are the workings of a man who knows that Justice Holmes' phrase "a page of history is worth a volume of logic" puts the lie to his "truths."
And what are the "truths" Scalia claims justifies abandoning the exclusionary rule in the knock-and-announce venue? (Kennedy explicitly stated that the exclusionary rule is still alive and well, that a knock and announce violation is a serious matter, and that if police now begin violating the rule indiscriminately, the case may have to be revisited).
The "truths" are not factual truths. Since the inception of the exclusionary rule as it applies to the states (Mapp v. Ohio, 1961), the Court has held that the exclusionary rule should not apply to a 4th Amendment violation ONLY when no deterrence value would be achieved by excluding the evidence. Thus,for example, if a station clerk's error led the police to search the wrong man's home in good faith, exclusion of the evidence so obtained would not encourage deterrence of 4th Amendment violations on the part of the police, since the police in this factual scenario did not intend to violate the rule in the first instance. A good-faith policeman is assumed to act as a "reasonable officer would and should in similar circumstances" (i.e. as compared to police who execute similar warrants but who were not given the false information); hence, no deterrence value is achieved by punishing him. An officer, however, who violates the 4th Amendment, is not a good-faith policeman and therefore does not act as a reasonable officer; hence deterrence value IS achieved by punishing him. Scalia's argument to the contrary basically consisted of speculation as to how a police officer will now act now that he can violate the 4th Amendment with impunity. According to Scalia, such an officer will not have an incentive to break the law - his incentives will be the same as they were if he wanted to break the law - protection of his safety and obtaining evidence. This argument misses the point: under the Court's precedents, the inquiry is whether the officer intends to violate/is capable of violating the rule if he knows that evidence will be excluded - NOT what incentive believes he will gain for violating it. The officer in the clerk hypothetical above cannot violate the 4th Amendment no matter how much he wants to because he cannot compel the clerk to make the accidental mistake. However, an officer who arrives at a suspect's doorstep has no shackles placed upon his intentions to violate the rule - and none placed upon his ability to do so. Therefore, the "no deterrence value" argument does not apply to this officer. Indeed, the only way the officer can be deterred (since his mind can dream up a way to violate the knock and announce requirement if for no other reason than to frighten a suspect in the hopes that the suspect may piss on the floor and that the piss will test positive for cocaine - so much for Justice Scalia's deliberately crabbed marble palace "incentive" psychoanalysis) is by excluding the evidence.
Not so, Nino says. 42 U.S.C. 1983 actions can be brought against such officers. Nino says that such trials (which almost are always unsuccessful simply because Plaintiffs cannot overcome the state's immunity arguments, and the reason they cannot overcome them is because of.... Justice Scalia) have - as fact - been shown to have deterrent value. He offers no empirical support. Of course, there is none. The few plaintiffs that have prevailed in such trials can only be afforded essentially monetary relief - and what kind of monetary relief are they going to get? Money representing the value of their cocaine?
Scalia then says that "citizen watchdog groups" have been effective (unfortunately, for him) in preventing knock-and-announce abuses. No evidence is cited. Scalia would be the first person alive to jump up and declare that such citizens have no standing to bring any kind of suit against police or the state for knock and announce violations. He then claims that police undergo more rigorous training now than in years past as to how to comply with the 4th Amendment. Ironic, then, that the number of 4th Amendment violations is higher now than in the good old days (perhaps 42 U.S.C. 1983 isn't working there, Nino?) At any rate, what he fails to mention is that this "training" consists primarily of instruction in how to barely (if at all) comply with 4th Amendment law, with the training featuring extensive lectures about the latest tip sheets on how to do this (tip sheets? Sorry.. I meant "judicial opinions") from Fat Tony Scalia, Sloppy Sammy Alito, John Robots, Slappy Thomas, and Tony "Mugwump" Kennedy. If that's training, I'll take "you're doing a heck of a job" incompetence.
But Scalia saves his best argument as to why police will be deterred from violating the knock and announce rule for last: according to him, police who violate the rule face discipline - even the threat of termination! Thus, they have a career incentive, you see, to follow the Constitution. We know this is true. See, e.g., the Bush Administration as an example of living proof of the fact that the following the Constitution is the equivalent of getting a work-for-life agreement out of the government.
But enough laughter. Let's turn to the police example specifically. Scalia's argument presumes that an officer's superiors are actually made aware of 4th Amendment violations by their subordinates, and that, once made aware, these superiors (now flush with evidence that will put people in jail) will react angrily and fire the police who nabbed the evidence (presumably after the trial, once the policeman has given the testimony needed to put the criminal -who, by the way, in this case, happened to be black) behind bars. As for the "being made aware" assumption, Scalia has made sure of the fact that superior officers and district attorneys need not burden themselves with having to be made aware of such violations, or of accusations of same. In Garcetti v. Ceballos, decided several weeks ago, the Court, with Scalia in the majority, held 5-4 that a D.A. who told his boss that a policeman who committed an improper search did not engage in protected speech activity even though the relevation was a matter of public concern. Thus, the Court held, such employees - employees who are the people most likely to know what a 4th Amendment violation is, and the only ones to care to report one - can be FIRED. The cop in this case was not fired. Yeah, his "career incentives" went down the drain, along with the piss from the golden shower that the L.A.P.D. took on Mr. Ceballos. Scalia can make stupidly disingenuous comments like "career incentive" precisely BECAUSE he knows - firsthand, shall we say, that they are not true.
So, the Court in Hudson failed to explain why it departed from decades-long precedent in abandoning the exclusionary rule. It billowed and bellowed out some smoke about the need to arrest criminals, to ensure police safety, and other generic "law and order" concerns that have never been found adequate to justify abandonment of the exclusionary rule. Scalia and his ilk claim to hate balancing tests as methods of legal analysis and rulemaking. But when he wants to abandon precedent to suit his convenience, the 4th Amendment somehow miraculously becomes subject to a "balancing test": the needs of law enforcement vs. the importance of not surprising someone in her nightclotes. The Framers, of course, hardly intended for this Amendment to be subject to a balancing test. And Scalia of all people should know that. After all, he has them on speed dial. Or maybe not. Maybe they've finally stopped talking to him. If so, pity that he hasn't taken the hint.
posted by EnterCenter at 7:47 PM
2 Comments:
Great analysis - I linked it on my site. :-)
Thanks.. Expect more rulings from the KKKourt on Monday!
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