Police don't have to knock, CNN article

[MaggieL]

Originally Posted by xoxoxoBruce

I read the fucking decision, already.
Are you telling me that in this ruling, by seriously weakening the "exclusionary rule" they didn't remove the primary impediment to obeying the "knock and announce rule? You aren't naive enough to buy that, are you?

I'm just not naive enough to buy your assertion that that is what has happened here.

The cops, bearing a warrant, announced themselves and entered through an unlocked door after waiting three to five seconds. If failing to follow inevitable discovery of the gun and drugs in this case is really "serious weakening of the exclusionary rule", then the exclusionary rule really needed some serious weakening.

(Your stories about belongings being tossed for a search don't strike me as relevant to the issue at hand. But as long as you're dispensing anecdotes, here's one: I thought the exclusionary rule needed weakening when burglars made off with the sacramental silver of the church where my father was pastor, burning the church to the ground to cover the crime. One of the perps was stopped for a traffic violation blocks from the scene the next day. The silver, with the name of the church engraved on it, was on the seat of the car. But the perp walked because a city judge applied the exclusionary rule to the discovery of the stolen goods. They actually did get some of the silver back, but the church is gone forever, and the perps got off scot-free.)

Alito makes reference to lawsuits, training and professionalism in the context of refuting Hudson's claim that massive deterrance is required because it is the only remedy for defective knock-and-announce. It isn't.

Here's that part of the opinion in context:

Originally Posted by Alito, for the majority

(b) This Court has rejected “[i]ndiscriminate application” of the exclusionary rule, United States v. Leon, 468 U. S. 897, 908, holding it applicable only “where its deterrence benefits outweigh its ‘substantial social costs,’ ” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 363. Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion. Attenuation can occur not only when the causal connection is remote, but also when suppression would not serve the interest protected bythe constitutional guarantee violated. The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

(c) The social costs to be weighed against deterrence are considerable here. In addition to the grave adverse consequence that excluding relevant incriminating evidence always entails—the risk of releasing dangerous criminals—imposing such a massive remedy would generate a constant flood of alleged failures to observe the rule, and claims that any asserted justification for a no-knock entry had inadequate support. Another consequence would be police officers’ refraining from timely entry after knocking and announcing, producing preventable violence against the officers in some cases, and the destruction of evidence in others. Next to these social costs are the deterrence benefits. The value of deterrence depends on the strength of the incentive to commit the forbidden act. That incentive is minimal here, where ignoring knock-and-announce can realistically be expected to achieve nothing but the prevention of evidence destruction and avoidance of life-threatening resistance, dangers which suspend the requirement when there is “reasonable suspicion” that they exist, (Richards v. Wisconsin, 520 U. S. 385, 394). Massive deterrence is hardly necessary. Contrary to Hudson’s argument that without suppression there will be no deterrence, many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline.

This opinion "seriously weaknens the excusionary rule" only if the rule started off being the only consideration in the case of an arguably defective knock-and-announce. It wasn't before the ruling (see the cites), and it isn't now. Nor have either the exclusionary rule or knock-and-announce been overturned. It's just that the claim of a defective knock and announce is not a free-ride to exclude all the evidence that the search allowed by the warrant turns up.

[xoxoxoBruce]

Arguably defective knock and announce?? No, not arguably, I repeat:

(Officer)Good testified at an evidentiary hearing that the officers didn’t knock on the front door and waited three to five seconds after announcing themselves as the police before they entered. The prosecutor in the case acknowledged that three to five seconds wasn’t a reasonable warning for Hudson to answer the door, and conceded the officers violated the knock and announce requirement.

There was never an argument by anyone (except you) that the knock and Announce was defective.

I already quoted Alito's reasons why the knock and announce isn't needed to keep the police from running roughshod. I also told you why he's full of shit.

So to sum up your last post....you got nothing.

[MaggieL]

Originally Posted by xoxoxoBruce

Arguably defective knock and announce?? No, not arguably, I repeat:

There was never an argument by anyone (except you) that the knock and Announce was defective.

I don't think that given the circumstances that it was defective, but Michigan chose not to argue that point.

Note that the opinion observes that there's endless potential argument down that path (if five seconds after the announce isn't enough, is six? How about seven? How many knocks do there have to be? Is one enough? Two?)

Have you ever argued with a five year old? Anytime there is a secondary gain to them from extending debate with you, once you legitimize that there's something at issue there will be no end to the arguing. Hudson didn't give a shit about privacy or dignity here, that could indeed be addressed with a civl suit. What Hudson wanted here--his secondary gain--was a walk on the gun and the drugs, he could care less about your front door or whether you get your pants on when the cops serve a warrant, even though those are the very interests protected by knock-and-announce.

Because it presented a cleaner case, Michigan's strategy was to simply argue that the remedy demanded by Hudson was inappropriate even if they stipulate knock-and-announce was defective. The Court agreed. I do too.

As you can see from the cites, the exclusionary rule has always been subject to competing interests, it isn't suddenly somehow crippled by this opinion.

[xoxoxoBruce]

I agree Hudson was looking for the get out of jail free card.

What bothers me is Scalia's statements:

"As far as we know, civil liability is an effective deterrent here, as we have assumed it is in other contexts."

and

Massive deterrence is hardly necessary. Contrary to Hudson’s argument that without suppression there will be no deterrence, many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline.

These statement sound like a man living in a world where if you are suspected of doing something wrong, they call your lawyer and set up an appointment to question you at your convenience.

For those of us in the alternate reality, cops are people.
They make mistakes.
Most are A type personalities.
Some of them are plain mean.
They cover each others backs as a matter of course.

I feel they should be held accountable for violating the law and my rights.
I also feel that won't happen if there's no penalty for not doing so.

[MaggieL]

Originally Posted by xoxoxoBruce

I feel they should be held accountable for violating the law and my rights.
I also feel that won't happen if there's no penalty for not doing so.

There's a big space between "no penalty" and whipping out the exclusionary rule to release felons any time the cops didn't wait "long enough" between announcing and opening an unlocked door to execute a search warrant.

There's gotta be a balancing done between the egregiousness of the police behavior and the harm of excluding the evidence, and that's what this opinion says. Alito didn't say that the other remedies should be the only recourse, he said Hudson's claim that there was no other recourse than giving Hudson an exclusionary rule walk was bogus, and cited the other recourses as counterexamples. To carp that the other recourses are insufficient to an unjustified warrantless no-knock door-crashing crisis entry with tear gas and flashbangs is to sign up for Hudson's theory that it's either toss all the evidence every time there's a complaint or nothing. Nothing Alito said supports discarding the exclusionary rule.

Originally Posted by richlevy

Well, in their process, giving the homeowner as little notice as possible is a peformance goal. This works out well unless they have the wrong house.

Or bad intel.

Originally Posted by MaggieL

There's a big space between "no penalty" and whipping out the exclusionary rule to release felons any time the cops didn't wait "long enough" between announcing and opening an unlocked door to execute a search warrant.

There's gotta be a balancing done between the egregiousness of the police behavior and the harm of excluding the evidence, and that's what this opinion says. Alito didn't say that the other remedies should be the only recourse, he said Hudson's claim that there was no other recourse than giving Hudson an exclusionary rule walk was bogus, and cited the other recourses as counterexamples. To carp that the other recourses are insufficient to an unjustified warrantless no-knock door-crashing crisis entry with tear gas and flashbangs is to sign up for Hudson's theory that it's either toss all the evidence every time there's a complaint or nothing. Nothing Alito said supports discarding the exclusionary rule.

No, there does not... to protect and serve. It is their job, just like when they illegally gather evidence, that evidence cannot ever be used in court. It is just.
If they do not enter properly the are just invaders, not cops.

[MaggieL]

Originally Posted by rkzenrage

If they do not enter properly the are just invaders, not cops.

Just shoot 'em then, that'll work. I wonder why Hudson didn't think of that? Obviously he had a gun... :-)

Seriously, that's not what the law is. Implement the "Farnham's Freehold" strategy at your peril.

Some things are more important than convenience.
Randy Weaver's name at least let some know how corrupt our government has become, that they are now at the level of just assassinating unarmed women and children and pets.
If someone enters my home unannounced, I will shoot them.

[MaggieL]

Originally Posted by rkzenrage

If someone enters my home unannounced, I will shoot them.

I hope it's not a firefighter.

[wolf]

The hose is usually a dead giveaway.

[Kitsune]

Sam Walker ain't so happy about Scalia citing him in his argument.

Originally Posted by MaggieL

I hope it's not a firefighter.

[MaggieL]

Originally Posted by Kitsune

Sam Walker ain't so happy about Scalia citing him in his argument.

Originally Posted by The Agitator

Walker says poltical leadership, internal procedures, media oversight and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important too, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.

I took the quote to imply that Walker believes there have been wide-ranging reforms in the education, training, and supervision of police officers. I guess you're only allowed to quote him if he agrees with you. :-)

[MaggieL]

Originally Posted by wolf

The hose is usually a dead giveaway.

The one with the hose isn't usually the first one through the door, it's the one with the axe. In fact, sometimes it's smarter to do an rescue entry from the side that isn't burning yet.

Originally Posted by wolf

The hose is usually a dead giveaway.

Fire, alarms and smoke may do it too... she's arguing just to do it.