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June 29, 2006

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Kirston Fortune, Assistant Dean for Communications, (512) 471.7330.

Commentary: Justices insensitive to privacy

By George E. Dix
Published with the authors' permission;
Austin American-Statesman, June 29, 2006

Editor's note: See an opposing viewpoint by UT Law professor Lino Graglia in today's Austin American-Statesman.

If police officers have a right to enter our homes, does the U.S. Constitution place a meaningful limit on the manner in which they must do so?

As a result of Hudson v. Michigan, decided June 15, the answer is a disappointing — and really disgraceful — no.

In 1995, the U.S. Supreme Court held that as a general rule, officers may not enter without first notifying the occupants of their authority and purpose, and giving the occupants an opportunity to admit them. So-called "no knock" entries were prohibited at common law, and the Fourth Amendment incorporated this traditional rule against them.

The limits on no knock entries are important. No knock entries dramatically increase the traumatic impact of police actions on people who have been convicted of no crime. They deprive people of any opportunity to minimize the embarrassment and humiliation of a sudden invasion of their home by heavily armed police officers.

No knock entries increase the risk of violent confrontations between police and those whose homes they enter. These violent reactions endanger not only the officers and those whose homes are being searched, but neighbors and bystanders as well.

The rule prohibiting no knock entries, moreover, is reasonably limited. Officers may have information indicating that the occupants, if notified, are likely to resist or destroy the contraband. In such situation, no knock entries are permissible.

But is this reasonable limit on the manner in which officers may enter homes a meaningful constitutional mandate?

The 1961 landmark case of Mapp v. Ohio established that Fourth Amendment rules for police are meaningful only if enforced by what is often called the "exclusionary rule." Under this rule, the prosecution in a criminal trial cannot use evidence it acquired only because of a violation of the defendant's Fourth Amendment rights.

Until last week, the Supreme Court had assumed that the Fourth Amendment prohibition against no knock entries, like other Fourth Amendment rules, was enforced by excluding evidence obtained after an entry made in violation of the rule. In Hudson v. Michigan, however, a bitterly divided court held this was not the case.

Usually, a violation of a suspect's rights requires exclusion of evidence only if the violation "caused" police to find and seize the evidence. Hudson applied this approach when the violation of the defendant's rights was an unconstitutional no knock entry to execute a search warrant.

In these cases, if the officers had knocked and announced as they are supposed to do, they would have entered and found the evidence. The unconstitutional no knock entry just speeds up their finding and seizing the evidence.

As a result, Hudson held, the unconstitutional no knock entry did not "cause" the officers to find and seize the evidence. Therefore, and despite the exclusionary rule, the no knock entry does not require exclusion of the evidence found inside the premises.

In the knock cases, causation will always be lacking. As a result, evidence will never be excluded no matter how egregious and malicious the no knock entry.

The only reasonable approach was for the court to recognize that wrongful no knock cases are different than other search and seizure cases. For the exclusionary rule to provide police with a meaningful incentive to limit no knock entries, the court should have simply held the traditional requirement of causation inapplicable.

It refused to do this. The real reason was undoubtedly that the majority believed that in 1995 the court had erred in concluding that Americans deserved constitutional protection against no knock entries.

The court, however, was unwilling to defend its decision on this basis. Rather, it absurdly purported to leave untouched the constitutional protection against improper no knock entries. In fact, the court's holding gutted that constitutional protection of any meaning. Police now have no incentive to pay any attention to it at all.

Hudson lamely argued that police will still be motivated to comply with the no knock rule. Ignoring the rule might make them liable for damages in a civil lawsuit. Further, better police training will convince them to follow the rule voluntarily.

These arguments against the need for an exclusionary rule were rightly rejected in 1961 when the court adopted the exclusionary rule. Nothing significant has changed. Reliance on these other methods of enforcing constitutional requirements was absurd in 1961 and it remains so in 2006.

Hudson reflects that the Supreme Court has become more and more insensitive to the privacy of those suspected of crime. Unfortunately, the court lacked the courage even to admit and defend this position.

Hudson rendered an important constitutional rule meaningless by uncritically applying procedural technicalities.

It justifies serious concern as what else the court might do to existing protections for personal privacy.

Dix teaches criminal law and criminal procedure at The University of Texas at Austin School of Law.

Related Links:
About Professor Dix:
Pro: Lino Graglia on Hudson v. Michigan and No Knock Entries in the Statesman: