Knock, Knock! Who’s There?
Too late, we've already broken down your door, we're in your home, you're on the ground with a gun to your head, and your bedroom has been turned upside down. Oh, and we're the police.
Such behavior is governed constitutionally by the Fourth Amendment, which prohibits the government from performing unreasonable searches and seizures of its citizens and their homes. Thanks to our new Supreme Court, the Amendment's protections may soon just be old-fashioned words on a page.
In a 5-4 decision this past week in the case Hudson v. Michigan, the court discarded the centuries-old "knock-and-announce" rule, which required the police, before entering someone's home with a search warrant, to knock and announce their presence first, giving the resident an opportunity to open the door. In the case before the Court, the police had ignored the "knock and announce rule" rule by shouting "police", waited 3 to 5 seconds, then entered an apartment, in which they found contraband (which was eventually the basis of the prosecution and conviction of the defendant).
The Supreme Court ruled that, in spite of the police disregard of the "knock-and-announce" rule, the evidence recovered was properly admitted against the defendant at trial. In other words, the police, when armed with a warrant, no longer have to knock or announce their presence, and any evidence they recover upon barging into someone's home is fair game.
The Court's decision is troubling for a number of reasons. The "knock and announce rule" --- which did not apply in circumstances where physical violence was occurring contemporaneously inside the home or where the suspected evidence would likely be destroyed with advance warning --- stood for the principle that a person's home was her castle, the place where, above all others, she should feel secure from unreasonable, unanticipated, and excessive government intrusion.
Prior Supreme Court decisions, by announcing and upholding the "knock-and-announce" rule, recognized how easily the government (whether federal, state, and local police officers) could (and often did) abuse its authority by searching people and their homes without restraint. The "knock-and-announce" rule acknowledged the danger such abuse posed to all of us, and sought to curb such behavior by disregarding any evidence recovered as a result of such wrongdoing by the police.
The rule may have reduced, even if only slightly, the number of traumatic incidents in which the police broke down someone's door unexpectedly, guns drawn, screaming at the inhabitants (young children included) to get on the ground, and keeping them there as they ransacked their home.
In addition to ending the "knock-and-announce" rule, the Court's decision may well mark the imminent end to a larger legal principle known as the "exclusionary rule", first enunciated by the Supreme Court in the beginning of the 20th Century: evidence secured unconstitutionally (i.e., through an unreasonable search or seizure) cannot be admitted in court against a defendant.
Under the exclusionary rule, if the police grab you on the street for no reason and find drugs in your pocket, or break down your door because they don't like you and find a gun under your bed, a judge could eventually throw out the drugs or gun (i.e., prevent the prosecution from using them at trial) on the grounds that their discovery was the result of unconstitutional government action (or, as often said, as "fruits of a poisonous tree"). As the Court stated in 1914: "The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles [of the Fourth Amendment]."
Many people --- no doubt a great number of cops and prosecutors --- find the exclusionary rule frustrating, since its application sometimes allows a guilty person escaping punishment. Add to those ranks four Supreme Court Justices: Clarence Thomas, Samuel Alito, John Roberts, and Antonin Scalia, who apparently would like to exclude the exclusionary rule altogether, thereby giving little meaning to the protections of the Fourth Amendment. According to them, no matter how tainted the evidence is by unbridled, even offensive police behavior, it should be allowed in court. "Wronged" citizens, the Justices argue, can always file civil suits against the police for monetary damages. In reality, however, not only are such suits are time-consuming and rarely successful or financially significant, they almost never have any consequences for the individual police officers, and thus do not operate as an effective restraint on police power.
The police action in the Hudson (referred to by Justice Scalia as a mere "preliminary misstep") was in fact an unconstitutional invasion of someone's home and privacy, an invasion repeated over and over again in this country against individuals on the street as well as their homes, particularly in lower-income communities. Even before the Court's decision in Hudson, the Fourth Amendment existed on paper only in many poorer parts of our nation. The Court seems content to relegate the Amendment even further towards futility, particularly for minorities and the poor.
Instead of following this treacherous path that cuts right through the Fourth Amendment, the Court should heed the words of Justice Day back in 1914, from his decision in Weeks v. United States:
"The effect of the 4th Amendment is to ... forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not ... The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions ... should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights."