In a recent Supreme Court decision, Hudson v. Michigan, in which it argued that evidence collected in an illegal search of a person’s house may be admissible. In this case, Booker Hudson wanted evidence collected at his house – a loaded revolver and cocaine – to be tossed out because the police collected the evidence in an illegal search. They had a proper warrant. However, when they got to his house, they announced their presence and entered immediately. They did not knock, nor did they give him time to get to the door. This, according to the Supreme Court, violated his 4th Amendment rights to privacy, but not in a way that made the evidence collected inadmissible.
Before I go further, I will repeat an old caveat that I have not used in a while.
Namely, I am not interested in what the law does or does not say. I am interested in what the law should or should not say, and these are often two different things. The Fugitive Slave Law of 1850 and the Jim Crow laws that followed are examples of laws that were not what the laws ought to be.
So, I have no intention to argue whether the opinions were well or poorly argued as a matter of law. My concern is whether the argument gives us good law or bad law.
On this issue, I note that the police had a proper warrant to search the premises. That is to say, they convinced a judge that they had probable cause to believe that the house would contain illegal weapons and drugs. The judge then gave the police permission to go to the residence and see if they were right. Nobody is questioning the legitimacy of the warrant. The only claim is that the police did not knock and give the people inside a chance to answer the door before they went into the house.
Why is the requirement to knock first before entering important?
Much of what I read spoke about the Constitution’s ‘knock and announce requirement.’ I am not aware of such a requirement being explicitly in the Constitution. If it has been read into the Constitution, then it falls in the area of what the Constitution says and not what it should say, unless somebody can provide me with an argument as to why it should be there.
I can think of a practical argument in favor of knocking, but it has nothing to do with protections against unreasonable searches and seizures. The practical argument comes from asking the question: What would have happened to Mr. Hudson if he had shot at the police while they entered his house?
Chances are, Hudson might or might not have killed or wounded one or more police officers, and probably ended up being shot or killed himself. In addition, any innocent people (e.g., any children who might be in the house, or any residents who are unaware of any drug activity going on) would have been put at risk of harm from the flying bullets. The police, in failing to announce their presence and giving those inside an opportunity to respond, created an unreasonable risk of loss of life.
An argument may be made that the police, in announcing their presence, increased the risk to their own life. They lose the element of surprise and give the suspect an opportunity to arm themselves. However, the job of law enforcement must necessarily be a job where certain individuals agree to accept personal risks in order to protect and preserve innocent life.
The requirement against entering a house unannounced is the same as the requirement against shooting at a suspect in a crowded subway station, where a stray bullet will likely hit innocent civilians. The police have a requirement to hold their fire until they can make a safe shot. We hired them to protect innocent lives. They need to follow a set of rules consistent with that mission.
Therefore, the Hudson case provides justification for a reprimand of some sort. Somebody should go to those responsible for this incident and say, “Do NOT do anything like that ever again. Your job is to protect the innocent, not to create situations that put them in harm’s way.”
Accordingly, if Hudson had shot at or killed one of the law enforcement officers, and/or they had wounded or killed him, after entering the house unannounced, somebody needs to be held responsible for the negligence that resulted in this harm. If the Supreme Court would have held that the police are not responsible for this harm due to their negligence, then they would have been creating bad law.
However, I see nothing about the need for the police to announce their presence before entering a house that is at all relevant to the admissibility of the evidence. I still see no argument that requires that the police identify themselves and give the occupants time to respond that makes this a “4th Amendment” issue. I see nothing in their decision not to knock and give the occupants a chance to respond that would quality the police action as an unreasonable search and seizure – a search and seizure without probable cause.
There is a concern with this decision that the police will use the tactic of entering a home without announcing themselves or giving residents a chance to respond. There is a legitimate concern that this will become a new terror tactic whereby governments seek to rule the people through fear and intimidation.
However, preventing this outcome does not depend on excluding evidence gained when the police do not knock and wait. Preventing this outcome depends on how the courts handle the inevitable increase in the number of cases where police actions turn violent as homeowners seek to turn weapons on unannounced intruders. If the courts side with the police in these cases, then our liberty is truly in danger.
The requirement to knock and wait must be protected, but not as a 4th Amendment issue, but as a public safety issue – as a way of protecting peoples’ right to protect their homes and their families from unannounced intruders.
Maybe I am missing something. If somebody can explain to me how failure to knock means that this was an “unreasonable search and seizure,” I will reconsider my position. However, in my readings on this decision, I have not encountered any such argument.
As far as liberal criticism of this decision goes, it seems to me to be following the formula that, “Since this is the decision of the Bush court in a case where the presence of Sandra Day O’Connor might have resulted in a different outcome, it is wrong.” In other words, they are not basing their opinion on the merits of the case. They are basing the opinion on independent and irrelevant political decisions.