The Supreme Court's most recent retreat from the Fourth Amendment comes with a more than usual dollop of hypocrisy. The fruits of an unreasonable search should not be suppressed, the cost in terms of unpunished crime is too great. Besides, the person whose rights have been violated can always bring a civil action. Did Scalia giggle when he wrote that swill?
Let's consider the intersection of criminal and civil law arising from the Fourth Amendment. The amendment prohibits unreasonable searches and seizures. The knock and announce rule has long been part of the law, and a failure to knock and announce police presence is as a matter of law unreasonable.
So the police come to a man's home. They don't knock; they don't announce. They burst in and seize contraband. In the criminal case, the defendant files a motion to suppress. Denied, the court rules, relying on Hudson v. Michigan. The defendant is convicted, a big fat scarlet F painted on his forehead to designate his new status as felon.
He now brings the civil action arising under 42 U.S.C. Section 1983. The police defendants make a run at summary judgment. Under the second prong of Harlow v. Fitzgerald might reasonable police officers now disagree about whether it is required to knock and announce? A court might rule that mere cops should be required to know the distinctions between civil and criminal remedies. Would Scalia and company uphold a grant of qualified immunity?
Suppose the case makes it to a jury. The plaintiff takes the stand. Here's the cross examination by the police defendants' lawyer:
Q. Are you the same Joe Blow convicted of a felony as a result of the evidence seized in this search?
Q. And you were sentenced to how long in prison for that crime?
A. Five years.
Q. I suppose you want the jury to award lost wages for your time away.
Perhaps the jury returns a verdict of $1 in nominal damages. The plaintiff's lawyer then requests attorney fees under 42 U.S.C. Section 1988. The court gives one dollar in lawyer fees -- as happened to me once, see McCardle v. Haddad (2d Cir.). Why so little? The plaintiff was not more than minimally successful. Farrar v. Hobby.
The Fourth Amendment is evaporating before our very eyes. Where once the Court in cases such as In re Winship concluded that it was far better that ten guilty men go free than one innocent man be convicted, today the Court reasons from a position of fear: Let's not get hung up on technicalities in the war on crime and terror, seems to the new ethos.