No suppression for ‘no knock’ search

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As I sit down to write this article about a seemingly major new Fourth Amendment case decided June 15, 2006, I have received a question from local law enforcement: namely, does this case mean that “knock and announce” during search warrant execution is essentially a thing of the past? The answer is a resounding “no.”

In Hudson v. Michigan, 2006 WL 1640577, a 5-4 U. S. Supreme Court ruled that a violation of the “rule of announcement” in search warrant execution may not result in suppression of the evidence, but significant civil liability may remain under 42 U. S. C. § 1983. That is, an exception to the exclusionary rule in the law of
criminal procedure does not automatically equate with a major shift in constitutional law.

Michigan police had a warrant for Booker Hudson’s home that did not contain a “no knock” provision. Police came to his door, announced their presence, but only waited three to five seconds before opening his unlocked door. Police recovered both cocaine and a firearm.

Hudson moved to suppress the evidence based on an alleged unlawful method of entry (violation of the knock-and-announce rule). The trial court granted his motion, but the Michigan Court of Appeals reversed, holding that the exclusionary rule was inappropriate under such circumstances. See 2004 WL 1366947 (Mich. App. 2004).

The Michigan Supreme Court denied review, but the U. S. Supreme Court granted certiorari. Interestingly, Michigan conceded that the entry violated the “rule of announcement.”

Writing for the 5-4 majority, Justice Antonin Scalia first noted that the “knock-and-announce” rule is constitutionally mandated, having its origins in the common law.

Wilson v. Arkansas, 514 U. S. 927 (1995). However, Scalia added, when police must observe the rule and how long they must wait before opening or forcing the door is not easily determined.

For instance, under Richards v. Wisconsin, 520 U. S. 385, 394 (1997), police can still effect a “no knock” entry even though the magistrate issuing the search warrant refuses to authorize a “no knock” entry, if “police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the investigation of a crime, by, for example, allowing the destruction of evidence.”

Then, under U. S. v. Banks, 540 U. S. 31 (2003), police need only wait twenty seconds (or less) after announcing their presence when evidence is easily destroyed. In Banks, the court noted that “no template is likely to produce sounder results than examining the totality of the circumstances in a given case;… .” Id., at 36.

The Wilson case had not addressed whether suppression of evidence was a proper sanction for violating the “knock-and-announce” rule. 514 U. S. at 937, n. 4. After an extensive examination of the purposes behind the exclusionary rule, the Hudson court observed: “In this case…the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether the preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.” (Emphasis in original.)

Scalia wrote that the purpose of knock and announce was: 1) to prevent violence occasioned “by the surprised resident”; 2) to prevent property damage; and 3) to protect privacy interests. On the other hand, he observed, “[w]hat 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.” Thus, “[s]ince the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” (Emphasis in original.)

Scalia then examined the high social costs and restraint on law enforcement in applying the exclusionary rule to knock-and-announce violations. First, criminal defendants would have little to lose in claiming a violation of the rule. “The cost of entering this lottery would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card.” Second, police officers would be uncertain as to how long they had to wait before entering, resulting in an undue delay. Finally, the deterrence affect is nominal: “[I]gnoring knock-and-announce can realistically be expected to achieve absolutely nothing except the prevention of destruction of evidence and the avoidance of life-threatening resistance by occupants of the premises… .”

Hudson argued that, with no exclusionary rule sanction, police will now be encouraged to ignore the knock-and-announce rule. The majority was not persuaded. Scalia mentioned that decades ago the exclusionary rule might have been the only useful deterrent, but now § 1983 jurisprudence has been refined to give a civil rights plaintiff a viable cause of action against police committing constitutional violations and § 1988 (the civil rights attorney’s fees act) gives their attorneys the financial incentive to pursue such claims.

Hudson countered that there are “few published decisions to date [which] announce huge damage awards for knock-and-announce violations.” The court had no statistical data on this contention, but did observe that “[i]t is clear, at least, that the lower courts are allowing colorable knock-and-announce suits to go forward, unimpeded by assertions of qualified immunity.”

Finally, the majority opinion opined that there has been a demonstrable “increasing [of] professionalism of police forces, including a new emphasis on police internal discipline. … Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, [and] how to respect constitutional guarantees in various situations… .” Moreover, municipalities can incur liability under § 1983 due to “[f]ailure to teach and enforce constitutional requirements.”

In a concurring opinion, Justice Anthony Kennedy emphasized that the discovery of otherwise lawfully admitted evidence is usually too attenuated from a knock-and-announce violation to justify exclusion. His example: “When…a violation results from want of a 20-second pause but
an ensuing, lawful search lasting five hours discloses evidence of criminality, the failure to wait at the door cannot properly be described as having caused the discovery of evidence.”

Justice Stephen Breyer wrote a strong dissenting opinion, joined by Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg. The dissent vigorously disagreed that “new remedies, such at 42 U. S. C. § 1983 actions or better trained police” are an effective deterrent to knock-and-announce violations. Breyer wrote that “[e]ven Michigan concedes that, ‘in cases like the present one…, damages may be virtually non-existent.’”

Breyer also disagreed with the majority’s “but-for” analysis. “Although the police might have entered Hudson’s home lawfully, they did not in fact do so. Their unlawful behavior inseparably characterizes their actual entry; that entry was a necessary condition of their presence in Hudson’s home; and their presence in Hudson’s home was a necessary condition of their finding and seizing the evidence.”

The lengthy dissent concluded with a chronological catalogue of 41 Supreme Court cases dating from 1914 (Weeks v. United States, 232 U. S. 383 (1914)) through 2003 (Kaupp v. Texas, 538 U. S. 626 (2003)) requiring either suppression, or a remand to determine suppression, following an illegal search or arrest in a home.

Does Hudson foretell a watering down of the exclusionary rule? Perhaps so, yet the majority’s point about § 1983 acting as a deterrent has validity. For instance, the majority cited to a Seventh Circuit case, Green v. Butler, 420 F. 3d 689 (7th Cir. 2005), wherein the court denied qualified immunity to parole agents who entered a home to search for a parolee without announcing their presence. Citing to cases such as Richards and Wilson, the court stated, “[i]n short, at the time of the incident at issue here, a reasonable agent would have known that a critical component of a reasonable entry under the Fourth Amendment was the knock-and-announce requirement. There was no reason for an agent to believe, under these facts, that dispensing with the requirement was justified by an exigency or futility. Nor was there any basis for a belief that the parolee’s consent to search justified dispensing entirely with the knock-and-announce rule.” Id., at 701.

Additionally, given the Wisconsin Supreme Court’s recent trend toward applying the exclusionary rule on independent state constitutional grounds, such as in State v. Knapp, 2005 WI 177, 285 Wis. 2d 86 (2005), notwithstanding apparent U. S. Supreme Court decisions to the contrary, Wisconsin law enforcement officers are well advised to continue to observe the knock-and-announce requirement.