Limits of the Exclusionary Rule

Hudson v. Michigan

The rule that officers executing a search warrant must knock and announce and provide the occupants an opportunity to open the door is contained in a federal statute and embodied in the Fourth Amendment. (Wilson v. Arkansas). This rule has its natural exceptions (threat of physical violence, destruction of evidence, etc). When executing a search warrant on Brooker Hudson’s home the police did “knock and announce” but only waited 3 to 5 seconds before opening the door. Michigan concedes that the knock and announce rule was violated, the question here is whether the exclusionary rule (evidence obtained illegally is inadmissible in court) applies.

The Court begins by rejecting the broad application of the exclusionary rule from Mapp v. Ohio and points to precedent which indicates that the violation of the Fourth Amendment does not necessarily imply exclusion (Unites States v. Leon). Illegal seizure as a but-for cause of the evidence being obtained is, then, necessary but insufficient to trigger the exclusionary rule. The majority argues that the interests protected by an application of the knock and announce rule must have some relation to the interests protected by the law, and that “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” (this after implying that such shielding is what the Fourth Amendment protects). What the majority does think is protected by the knock and announce rule is the interest in life and limb, property, and privacy and dignity but not the interest in preventing the police from obtaining the evidence listed in the 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”

The Court points to the societal cost of excluded evidence, extended litigation, and the consequences of police officers waiting longer than necessary to enter in determining whether the “deterrence benefits [of the exclusionary rule’s application] outweigh its ‘substantial social costs. Focusing on the fact that the violation of the knock and announce rule should (assuming no evidence would have been illegally destroyed in the meantime, which does not constitute a constitutional interest anyway) never result in the discovery of more evidence than had it been followed, the majority considers the deterrent effect of the rule to be minimal.

Acknowledging the divergence from the expansive rule in Mapp v. Ohio, and pointing to the statutory protection of the Civil Rights Act that did not then exist, Justice Scalia warns against “forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.” The Court points to civil remedies and the increasing professionalism of the police forces as reasons against a broad exclusionary policy.

At this point, Justice Scalia’s opinion turns into an opinion concurring in judgment. This opinion notes past cases that did not warrant exclusion of evidence, including a case where police entered and secured the premises for 19 hours before finally obtaining a warrant. This was upheld because of the warrant’s independent basis. Scalia notes another case where a window was broken during a lawful entry, and in which the Court stated that had a Fourth Amendment violation occurred (breaking a window could rise to that level) it would have to determine whether there was a “sufficient causal relationship between the breaking of the window and the discovery of the guns to warrant suppression of the evidence.” However, this case seems to suggest the opposite, that where a but-for causal relationship exists the evidence would be presumably excluded, so long as exclusion in fact turns on the causal relationship.

Justice Kennedy picks up the part of the opinion where Justice Scalia’s looses the majority but only suggests that if stronger policy reasons existed the law might be fortified, and indicates that this case does not signal a departure from other exclusionary rule applications. Justice Kennedy’s decision seems to do no more than undercut the majority’s basis in precedent.

The dissent places the knock and announce principle in the reasonableness requirement of the Fourth Amendment, recalls a case (Weeks) suggesting that as a matter of principle unlawfully seized effects could not be used in court in accordance with the Fourth Amendment. Later, Sileverthorne held that facts obtained by subpoena were not excluded by virtue of a prior illegal search so long as the subpoena was obtained on an independent basis. Mapp extended the exclusionary rule to the States through the Due Process clause.

The dissent argues that since the knock and announce rule is part of the reasonableness requirement of the Fourth Amendment, its violation renders the search unconstitutional, and thus inadmissible under Mapp, and that as a matter of policy, to do otherwise would be to hollow out the Fourth Amendment. The dissent argues that the majority’s reliance on civil suits makes Wolf, not Mapp law. Prior to this ruling there were two situations where the exclusionary rule did not apply: (1) where there is specific reason to believe that the rule would not result in an appreciable difference (good faith and for impeachment purposes) and; (2) outside criminal trials. The dissent takes issue with the assertion that the unconstitutional manner of entry was not a but-for cause of obtaining the evidence, since while the police could have entered legally, they did not, and that illegal entry was a necessary condition for the readily foreseeable consequence of finding the evidence. Referring to Silverhorne the dissent argues that the inevitable discovery doctrine covers evidence that would have been discovered (1)“despite (not simply in the absence of) the unlawful behavior and (2) independently of that unlawful behavior,” and goes on to criticize what it forcefully argues are mischaracterizations of the case law by Justice Scalia’s opinion.

The majority uses the word attenuation, the dissent argues, means to refer to the attenuated connection between the interest protected and the remedy sought, rather than between the cause and effect. The dissent takes issue with the limited scope the majority gives to Fourth Amendment interests, it argues that once the search becomes unlawful its fruits must be excluded, and criticizes its divergence from the case law. Finally, the dissent outright rejects the idea that the majority can properly make assertions, with the force of law, regarding the balance of interests when no precedent prescribes it.

Looking back on it, this case is much less remarkable than I originally thought. It is quite simple really: "What the knock-and-announce rule has never protected, however, 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." What got me was Justice Scalia's contempt for the rule per se.