by Matt Barr

Dots connected

"We don't need to connect every dot we're asked to," I wrote in April, re: Hudson v. Michigan:

If we have a provision of the Bill of Fricking Rights which says our home is our castle and the police can't act unreasonably, then they can't break down the door and take you and your evidence by force without an alarmingly good reason. You don't like that, propose an amendment repealing it. But I would argue it does far more good than harm, even setting aside one's feelings about the efficacy of the war on drugs. Provided we take it at least semi-seriously.

That's the question before the Court in Hudson: Do you take the Fourth Amendment semi-seriously? It would, as far as the Court's conception of the sanctity of your home is concerned, be a step in the right direction.

Not so much.

[E]xclusion may not be premised on the mere fact that a constitutional violation was a "but-for" cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that 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....

[C]ases excluding the fruits of unlawful warrantless searches say nothing about the appropriateness of exclusion to vindicate the interests protected by the knock-and-announce requirement. Until a valid warrant has issued, citizens are entitled to shield "their persons, houses, papers, and effects" from the government’s scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement. The interests protected by the knock-and-announce requirement are quite different—and do not include the shielding of potential evidence from the government's eyes.

(Citations omitted.) I see the point. I really do. When a home or person is searched improperly without a warrant and evidence is found, that evidence is tainted by the illegal search. Here, there was a warrant, and the evidence found was not tainted by the fact the officers didn't wait long enough before entering the unlocked door after knocking.

And the exclusionary rule is a court-manufactured remedy to begin with. I'm the last person you're likely to hear say that without intervention by the Court, we simply have no way of guaranteeing our rights. At the same time I'm not dim enough to blithely suggest we could pass laws excluding evidence gained after a knock-and-announce violation. Try getting elected on that platform.

It comes down to the fact that failure to properly knock-and-announce is a Fourth Amendment violation, and if there's a violation to someone's Bill of Rights rights by the government there need to be consequences -- a disincentive, if you prefer. Relying on government to restrain itself never works. Now there simply are no consequences for violating the knock-and-announce "rule," and there is no incentive to follow it.

The Court canonized the knock-and-announce rule and it has now effectively overruled itself. I guess I wish it would pick a lane.

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