Hudson v. Michigan

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.

Comments

[Aaron]

Is there an effective alternative to the exclusionary rule? If not, absent an exclusionary rule, while cops may well be permitted to be honest about how they collected evidence, what's the point of having a Fourth Amendment? If so, why will police suddenly start telling the truth if they face a meaningful penalty for their misdeeds? As you know, we don't have the exclusionary rule because of a constitutional mandate, or because it is a perfect solution - it's a "better than the alternatives that have been proposed to date"-type compromise.

I have no doubt that Prof. Moran will argue the issues well.

[Mike]

My views on the exclusionary rules are likely colored by my age. (I took crim pro in 2002.) I don't view the exclusionary rule as an effective remedy. When someone wins a suppression motion, man, that's a huge deal. Thus, I don't bear the burden of crafting an effective remedy. Rather, I need only to craft a remedy as (in)effective as the exclusionary rule.

A person who's fourth amendment rights are violated can always file a section 1983 suit. He doesn't escape guilt, and he gets compensation if a jury thinks it's appropriate.

Anyhow, my main concern is this: law enforcement are lawless. I can't help but think they would't be so lawless if they hadn't grown up in a culture where it's appropriate and necessary to commit perjury in order to ensure evidence is not excluded. Perhaps if they hadn't grown up in this culture of perjury, they would be less lawless in other realms.

[Windypundit]

My gut says the exclusionary rule is a good thing, but one thing that bothers me is that it doesn't protect the innocent, at least not directly. The guilty get to go free, but if the police violate the rights of an innocent person, they have nothing to lose.

Excuse my ignorance, but am I right to assume that section 1983 provides some sort of civil remedy? How does that work? If the police break the law to enter my home, trash the joint, frighten me and my family, and find nothing, can I still go after them with section 1983? Will I be able to find a lawyer to take that case?

[Aaron]

The Supreme Court rejected the adequacy of civil remedies as an alternative to the exclusionary rule in Mapp v Ohio. ("The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States.") With all the faults of the exclusionary rule, that does not appear to have changed.

Further, if an adequate civil remedy were created, officers would be under no less pressure to misrepresent the circumstances of their searches than they presently are under the exclusionary rule. Given the manner in which exceptions to the exclusionary rule have transformed it into something resembling swiss cheese, an effective civil remedy might increase the officer's incentive to misrepresent the circumstances - particularly if the officer were to be held personally responsible, and not be able to shrug off any liability on the basis that the police department or municipality would bear the cost of any settlement or verdict. (Or would we have the worst of both worlds - no exclusion of improperly seized evidence, and a civil remedy made toothless by maintaining all of the present exceptions to the warrant requirement and similar incentives for misrepresentation.)

I am not at all convinced that corruption would disappear from police departments in the absence of an exclusionary rule - police corruption long precedes the exclusionary rule, and has been markedly reduced in recent decades in many historically corrupt police departments. The biggest corrupting influence in most present police departments seems to be the "war on drugs" as presently fought, with associated seizures of huge amounts of illicit cash and illegal drugs.

[Mike]

Sorry for the short answers, but I've been extra busy today. This page will answer your questions more thoroughly.

Excuse my ignorance, but am I right to assume that section 1983 provides some sort of civil remedy? How does that work?

Yes, a person whose constitutional rights are violated can sue.

If the police break the law to enter my home, trash the joint, frighten me and my family, and find nothing, can I still go after them with section 1983?

Yes.

Will I be able to find a lawyer to take that case?

Yes.

[Windypundit]

Way Cool.

[mythago]

I can't help but think they would't be so lawless if they hadn't grown up in a culture where it's appropriate and necessary to commit perjury in order to ensure evidence is not excluded.

In other words, where the Fourth Amendment is inappropriate and unnecessary?

[Mike]

Mythago, I said had problems with the exclusionary rule, not civil remedies, for Fourth Amendment violations.

Aaron, since when did I (or you) let the Supreme Court's rejection of something or other stop us from having a contrary opinion? Anyhow, you might be right. Like I said, my mind isn't made up yet.

[mythago]

I said had problems with the exclusionary rule, not civil remedies, for Fourth Amendment violations

I know. The reason evidence is excluded is that it was obtained in violation of the Fourth Amendment (generally in pretty flagrant violation to get the court to care). If commiting perjury is "appropriate and necessary" to get that evidence in, it follows that the Fourth Amendment is nothing more than an irritating obstacle.

As Aaron says, it's kind of silly to think that the same people who happily perjure themselves to avoid excluding evidence will suddenly turn truthful and get themselves in hot water in a section 1983 suit--or that they will even care about the distant possibility of a lawsuit.

[kenny]

some one robbed a gas station that was 100 hundred feet away from my house the canine led the police to my house they came to door n acused me or someone at the house . I had run ins wit police b4 but i know they cant come in my house witout a warrant they were bein disreectful while askin me to search the house to see if was hidin the robber but i said no u cant search and im not hidin no one inside i have nuttin to do with robery they made me stand on porch in cold weather and took my picture n left a few hours later they came in mournin screamin police pointing guns at me and family they said the clerk pionted me out in the picture but i guess the guy must have looked like me but the store has cameras and if they reviewed them they would know it wasnt me i was hand cuffed half naked inside the house in front of the door open wit cops comin in and out wit the snow and cold i was frezzin they said wit clerk sayin it was me and the dog and me not letin them search that was enough for warrant they were lookin for a gun or if i was hidin the robber they found nuttin n had to leave but the cops say now we know it wasnt u but you know we have enough to say it was u but i wanted to know can i sue the police the bad thing is it happened late 2005 i might have the warrant still but wit or wit out it can i still sue even if it was awhile ago if i woud have seen this website bak then i would hav been taken action what do u think i should do n what can i do ?