No
suppression for ‘no knock’ search
By
Scott Lewis
Special to Wisconsin Law Journal
June
21, 2006
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.
