No knock, no joke: SCOTUS and the Fourth Amendment

The Supreme Court ruled 5-4 on Thursday that the police can violate the "knock-and-announce" rule to search someone's property and use the evidence anyway. This decision could seriously weaken Fourth Amendment rights.

Lyle Denniston of SCOTUSblog distills the essence of this case:

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.

The "knock-and-announce" rule is supposed to guard individual privacy and dignity. We don't want to live in a society where the police can burst into our homes unannounced. Innocent people shouldn't live in fear, as they do in many dictatorships, that the cops could bust in at any moment.

It's not such a hard concept. You're a free and equal citizen, innocent until proven guilty, minding your own business in your private residence. If the cops want to enter your home and search your property, they have to ask you first. If they've got a warrant, it's an offer you can't refuse, but they do have to ask.

Yet, according to Antonin Scalia, writing for the Majority, evidence from illegal no-knock searches needn't be thrown out because nobody has a right to hide evidence from the government.

According to Scalia, you can only justify throwing out evidence if the exclusion advances some legitimate constitutional right. Otherwise, what's done is done. It's water under the bridge. Sure, the guy's constitutional rights were violated by the no-knock, but throwing out the juicy evidence against him won't undo that rights violation.

Lyle Denniston of SCOTUSblog elaborates:

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. [Emphasis added.]

We all have the right to be secure in our persons, houses, papers, and effects against unreasonable search and seizure. Knock-and-announce has been integral to our definition of a reasonable search decades. The State of Michigan concedes that arrested man's rights were violated by the no-knock.

Throwing out illegally gathered evidence advances the rights of the arrestee and everyone else by making us more secure by deterring illegal searches in the future.

The police want to convict bad guys. If we throw out evidence gathered from unreasonable searches and seizures, the police will be less likely to search us in unreasonable ways, lest they lose precious evidence.

In his decision, Scalia argues mere deterrents that serve constitutional rights aren't good enough. He says that evidence exclusion must "directly" advance a constitutional right. It's the emphasis on directness that's radical and troubling. Scalia is arguing that you can't throw out evidence unless the discard directly advances someone's rights and that the only possible "right" that might be served by discarding evidence is the non-existant "right" to hide evidence from the state.

Iocaste elaborates:

[...]the Fourth Amendment, its warrant requirement, and the knock and announce rule, are all about preserving human dignity and privacy in the home and we are aware that an unfortunate byproduct of this protection is that sometimes, incriminating evidence will be concealed. But nothing in the Fourth Amendment exists in order to allow people to hide evidence from the government, and if you start with the premise that there will be no exclusion of evidence unless the rule that was violated was intended to allow such hiding of evidence, then you've pretty much eliminated all exclusions.

The most recent decision applies only to failures to knock-and-announce. However, many analysts worry that the Court will apply the same twisted logic to evidence from other kinds of illegal searches.

Scalia has mounted a frontal assault on the exclusionary principle, which is justified primarily by appeal to deterrence of police wrongdoing. If police deterrence isn't good enough, and we agree that evidence mustn't be discarded unless the discard advances a specific constitutional right, then it seems as if there's never a good reason to throw out evidence from seizures that violate the Fourth Amendment.

Comments

[togolosh]

Since the new supreme court (they can have capitalization when they damn well earn it) doesn't believe in a right to privacy this is no surprise. We'll see more of this sort of thing in the future.

[JR]

Even if you are GUILTY, there is an issue of proportionality here. Earlier this year, police in Fairfax County, Virginia shot and killed a man at his home. They had a warrant to arrest him and search his house on charges that he was a bookmaker. He was an optometrist who was taking bets on the side. No reason to think he would be armed, no history of violence- and they sent a SWAT team, with automatic weapons and bullet-proof vests. One of the cops discharged his weapon "accidentally," and a man was dead. There was no need for that. A single detective with two ordinary uniformed officers could have knocked on his door and said, Mr. Culosi, would you step outside, please?

But this is the way the police operate now. They treat arrests and searches like military operations.

So if a guy is dealing marijuana or a woman is turning tricks from her apartment- break down the door! Everyone down on the floor! Are there kids in the house? Grandparents? Are there kids in the next apartment over who see and hear these shouting, cursing centurions in full battle armor? Who cares? The cops act like wherever they go is a war zone, and the civilians better stay out of their way. And the Supreme Court thinks that's A-OK.

[DJA]

Publius falls for the right's "boiling the frog" strategy, and Ezra seems to think the water's just fine, too.

[kail]

Funny, my copy of the Constitution doesn't say anything about the right to have the police knock before coming into your home. "Unreasonable" search and seizure...well okay, you need to have a reason for the search, that sounds good to me, but where does it say "please knock"?

[Lindsay Beyerstein]

The Constitution doesn't say that you have to knock. The Constitution says that our right to be secure against unreasonable searches and seizures shall not be violated. The criteria for a reasonable search have been hashed out over the years by the courts. Scalia's opinion, linked to above, discusses the history of the knock-and-announce rule, if you're interested.

In this case, the state of Michigan conceded that the failure to knock and announce was a violation of the arrestees Fourth Amendment rights. The SCOTUS also started from the assumption that the guy's Fourth Amendment rights had been violated. The only question before them was what to do about it. The SCOTUS said: Nothing. Who cares?

[1984 Was Not a Shopping List]

I consider Antonin Scalia singularly unfitted to apply Constitutional protections to individual cases. He plainly cares not at all about our rights under the Constitution, though you may argue that the "knock and announce" rule doesn't apply here. If you have many examples of Scalia standing up for individual rights and liberties, against government or police encroachment, I am open to hearing about them.

It's worth pointing out here, too, that regarding privacy rights, the Constitution does say that its stipulation of rights does not preclude the existence of other rights not enumerated therein. That is, just because the Constitution lays out some very important individual rights, it doesn't mean that those are the only rights we're to be allowed.

[togolosh]

Another point worth noting is that "privacy" had a rather different meaning in the late 18th century than it does now. It was more strongly associated with bodily functions, which is one reason it's not explicitly in the constitution. The whole "penumbras and emanations" reasoning in Griswold v. Connecticut is pretty sound, IMHO, since the limitations placed on Federal and State power are clearly intended to protect what we now refer to as privacy.

[1984 Was Not a Shopping List]

Thanks togolosh, you rule. Here's a link that oyez.org linked to, with opinions from the case:

http://supreme.justia.com/us/381/479/case.html

This page touches on many, many things that pertain directly or indirectly to this controversy.

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, as protection against all governmental invasions "of the sanctity of a man's home and the privacies of life."* We recently referred

Page 381 U.S. 479, 485

in Mapp v. Ohio, 367 U.S. 643, 656, to the Fourth Amendment as creating a "right to privacy, no less important than any other right carefully and particularly reserved to the people." See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960).

More:

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice - whether public or private or parochial - is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S. 183, 195) - indeed the freedom of the entire university community.

So: though this is not made explicit within the Constitution, the Constitution's free speech provisions are construed to protect academic freedom. What bothers me most about all this is the idea that a justice like Scalia, nose ever to the wind for what his political patrons might like, will disregard both precedent and founders' intent. Or that a Richard Roeper type, shallow and disposed to pander to popular opinion, might become a justice, and rule similarly, with an attitude of "Aaah, fuck it. The administration wants it. I'm hungry."

[1984 Was Not a Shopping List]

This quote from Griswold v. Connecticut was probably the most germane and important to our discussion here:

Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family - a relation as old and as fundamental as our entire civilization - surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.

The rejoinder:

My Brother STEWART, while characterizing the Connecticut birth control law as "an uncommonly silly law," post, at 527, would nevertheless let it stand on the ground that it is not for the courts to "`substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.'"

And that, unfortunately, is not a silly opinion. On the one hand, our supreme court cannot follow only the letter of the Constitution; it absolutely must infer and construe some principles not made explicit in the Constitution, but still consistent with the Constitution's general aims, in order to deal with unforeseen legal circumstances. This is as obvious as it is obvious that there will always be unforeseen circumstances. However, it is also just as obvious that to "construe" and "infer," that is, to go beyond the explicit, written instructions of the Constitution, means that local authorities, paying attention only to those explicit instructions, and possibly no attention at all to precedent, will enact laws that will contradict the inference that should clearly be drawn from precedent. Also, leaving all such unforeseen circumstances to be decided based largely on precedent means that judges have much power to decide which precedents they will heed. This ensures that many of our supreme court decisions will have, if you'll forgive the use of the term, an arbitrary cast. This will either impact local autonomy in lawmaking, or, in a court full of Scalias, the aims of the Constitution itself. It's a built-in flaw.

What should we do?

[mudkitty]

Can we start using the term fascism now?

[1984 Was Not a Shopping List]

Well you know I think you're great, mudkitty, but:

No!

We need a new term for "1000 little fascisms." America is not unified, and its downfall will not come from a monolithic master with an effective police state. We may go that way in a brief paroxysm, just as order-loving Germany became disunited in the 20s, but just as Germany returned to its true law-and-order-loving nature in the 30s, we will for our true downfall return to our authority-hating nature, and dissolve like an acid with a base, battling one another all the way.

[1984 Was Not a Shopping List]

(CYA: yes, I know that Nazism was different from Italian Fascism. I use fascism here to indicate the concentration of state power for brutal ends of state violence, by use of overreaching authority and a secret-police state. As seen in other discussions, YTMV. But no, I believe that America will not have its final downfall via a monolithic police state.)