Hudson v. Michigan, attacking the exclusionary rule
Topics: Civil Liberties
21 Jun 2006
From: Ervan Darnell
Last week the Supreme Court decided that police who fail to knock before
serving a warrant can still use the evidence gathered. Most sources
portray this as a reversal of the "no knock" rule (e.g. a headline of
"High Court Backs Police No-Knock Searches" in the SF Chronicle [1]).
It's much worse than that, it's a weakening of the exclusionary rule and
doesn't actually address the "knock" rule directly.
I find the "knock" rule a curious one that I wouldn't regard as a
primary right, but it has long history including SCOTUS deriving it from
the Fourth Amendment [2] in Wilson almost a century ago. Therefore, it
is Constitutional law and not merely statute. Had SCOTUS decided to
weaken Wilson, one could undestand that. But that's not what they did.
Everyone agreed the "knock" rule applied in this case and that the
police violated it. SCOTUS did not limit the "knock" rule. Instead,
they basically said "so what", that the police violating the law should
not have any serious reprecusions. Scalia even suggested that the
accused could sue the police department in civil court to remedy the
error. That's laughable really to suggest that someone in jail,
rendered broke by the trial, already judged guilty, and then suing the
police in civil court could ever win. And, if he won, he wouldn't win
anything of significance. What does it mean to have a Constitutional
right to something except that the government cannot violate it? Here,
SCOTUS has given the police a green light to violate Constitutional
rights without meaningful consequence.
In some cases, there might not be an obvious remedy for such a
violation, but in the case of criminal process there is: no ill gotten
gain. If the police gather evidence illegally, they cannot use it. The
standard must be at least that. Anything less is to abrogate the very
idea of a Constitutional right.
Of course, this is a drug case instead of a real crime, just to add to
the absurdity of it. Prosecuting vicitmless crimes necessarily leads to
more civil liberties violations as there is no complainant, the police
must use entrapment, etc.
Incidentally, both Bush appointees, Roberts & Alito, voted with the
majority.
Many people would say "but what about all of the really bad guys that
get let go?" Well, if the police stopped violating the law, they
wouldn't be let go, duh. Of course, some fewer would be caught. That's
a more relevant objection, but Constitutional liberties are not about
balancing tests, they are about guaranteed rights. If we need to change
the "knock" rule, that's worth considering, but weakening the
exclusionary rule is a much worse outcome.
[1]
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/06/15/national/w074310D26.DTL&type=politics
[2] p. 2 of the decision, "Finally, in Wilson, we were asked whether the
rule was also a command of the Fourth Amendment. Tracing its origins in
our English legal heritage, 514 U. S., at 931 936, we concluded that it
was." from the decision itself.
http://www.supremecourtus.gov/opinions/05pdf/04-1360.pdf
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