Analysis: Exclusionary rule in trouble?

The Supreme Court’s 5-4 ruling on Thursday in the Michigan “knock-and-announce” case raises significant new questions about how sturdy the “exclusionary rule” is as a remedy for constitutional violations by police — especially, but not solely, Fourth Amendment violations. It also suggests — perhaps more strongly — new doubt about the continuing validity of the “knock-and-announce” rule. Those implications seem to emerge in some of the language used, and certainly between the lines, of the ruling in Hudson v. Michigan (04-1360). The three opinions in the case can be found here.

When the case was argued on May 18 (the second of two arguments in the case this Term), it seemed clear that a major Fourth Amendment ruling was in the making. The final opinions justify that impression.

The bare holding of the case is simple: if police have a warrant to search a home, and they enter in a way that violates their constitutional duty to knock first and announce themselves, the evidence turned up in the search can be used in a criminal prosecution.

Some background on the case, before getting to the ruling’s implications: In August 1998, several Detroit police officers went to the home of Booker T. Hudson, Jr., to conduct a search with a warrant. When the officers arrived, they did not see any activity going on inside and heard no noises. Even so, they entered within 3 to 5 seconds after announcing their presence at the door. They then forced their way in. Inside, they found cocaine and a gun. Hudson was charged with possession of the drug and possession of the gun during the commission of a felony. He was convicted on the cocaine count, and sentenced to 18 months on probation. He had failed in an attempt to suppress the evidence because of the violation of the knock-and-announce rule. The case reached the Supreme Court on the premise that that rule, indeed, had been violated. The question before the Court was the remedy for that violation: suppression of the evidence, or not?

The case was initially argued in the Court on January 9, when Justice Sandra Day O’Connor was still on the Court. The Justices on April 19 ordered it re-argued, after O’Connor had been replaced by Justice Samuel A. Alito, Jr. On Thursday, Alito joined in the majority opinion written by Justice Antonin Scalia. It now appears that the Court, after the departure of O’Connor, was divided 4-4 as it deliberated on the case, leading to the second argument with Alito participating.

The Scalia opinion, in concluding that the “exclusionary rule” was not available to Hudson or to anyone faced with a knock-and-announce violation, relies on two fundamental theories, both of which pose questions about how far the decision may ultimately reach, or what future changes in constitutional doctrine it may portend.

First, the Court made clear — with an emphasis not previously employed — that it will insist on a demonstration that the interest that a constitutional right serves will, in fact, be directly advanced by barring the evidence obtained from a violation of that right. Thus, it would not matter that the violation itself was the source of the evidence, if the right would not gain from excluding the evidence. As Justice Scalia summed up that point: “What the knock-and-announce rule has never protected…is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” Thus, at least in the context of the knock-and-announce rule, a Fourth Amendment violation that makes a search invalid will not keep out the resulting evidence. The notion that a violation necessarily makes the entire search unlawful, requiring suppression of resulting evidence, no longer has validity when the violation involves a failure to knock and announce.

It may take a number of future decisions, involving rights other than the “knock-and-announce” rule, to determine which other rights the Court will regard as having a social value that depends for its hardihood upon the remedy of the exclusionary rule. The kind of direct linkage that the Hudson decision demands between the rights and that rule, in order to deploy “the massive remedy of suppressing evidence of guilt,” might well be found to be lacking when a different Fourth Amendment or Fifth Amendment right has been breached. The weighing of other rights under those Amendments against the loss of evidence may well place a higher value on the latter than on the former, at least as to some rights.. For example, does the protection against a false arrest, for example, justify suppression of contraband or a confession that follows? In general, just when is evidentiary “fruit” so closely related to the “poisonous tree” of a violation that it must be suppressed, and how “poisonous” is the violation in social value terms?

In the course of discussing this first theory, the opinion regularly employs language that questions the real value of the knock-and-announce rule. The privacy interests are analyzed in less-than-expansive ways, especially when contrasted with the opinion’s lament over the loss of criminal evidence. The right at issue, the opinion remarks at one point, is a “right not to be intruded upon in one’s nightclothes.” It also places much stress on the uncertainties that police confront in trying to obey the knock-and-announce rule. It does not directly question that the rule remains alive, but it relies mainly on a concession by the state of Michigan for that proposition.

In articulating a second theory as critical to the Hudson decision, the Court made clear that its views may be changing on the value of the exclusionary rule in deterring police misconduct. It exhibited a greater willingness than it has in the past to trust police officers to avoid constitutional violations, and a belief that that trust can better be reinforced by means other than judicial suppression of evidence that is vital to successful criminal prosecutions. This theory was most vividly in display in Justice Scalia’s analysis of present-day deterrents that may keep police in line. “It seems to us not…true, as Hudson contends, that without suppression there will be no deterrence of knock-and-announce violations at all,” Scalia wrote.

The Court would not assume, he said, that exclusion of valuable evidence “is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago.” One alternative deterrent, he went on to suggest, was the right to bring a civil rights damages remedy, something that has expanded considerably in the past half-century. That deterrent is bolstered, he added, by a civil rights plaintiff’s right to recover legal fees, making that remedy more available and attractive. “Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on interrnal police discipline….It is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.”

Those forms of deterrent, of course, would not necessarily be at play only regarding the knock-and-announce rule. In a future case, involving a different right, they could be found to be equally persuasive alternatives to the exclusionary rule.

It should be noted that Justice Anthony M. Kennedy, whose vote was necessary to make a majority, wrote a separate opinion. He sought to minimize the potential impact of the ruling. The decision, he said, “should not be interpreted as suggesting that violations of the requirements [of knock-and-announce] are trivial or beyond the law’s concern. Second, the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.” At the same time, however, Kennedy embraces all parts of the Scalia opinion, including the theories relied upon, but does not join a section dealing with whether prior precedents dictated the result — a section that had little, if anything, to do with the broader significance of the decision.