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June 29, 2006

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

Commentary: Ruling is welcome but doesn't go far enough

By Lino A. Graglia
Published with the authors' permission;
Austin American-Statesman, June 29, 2006

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

Hudson v. Michigan, the Supreme Court's recent exclusionary rule decision, is a welcome step in the direction of sanity in enforcement of the criminal law.

In the 1960s, the revolutionary Warren Court apparently adopted the view, in keeping with other advanced thinkers of the times, that the criminal was the victim and American society the criminal; the accused could not be given too many new "constitutional rights" it seemed.

One was the famous "Miranda rule," which severely limited the ability of law enforcement authorities to obtain confessions.

Another was the application to the states of a rule that if evidence of a crime was obtained by an improper search, the remedy was to exclude it from the trial. The result was that the defendants were set free, no matter how clearly guilty and dangerous.

As Benjamin Cardozo, one of our greatest jurists, objected: "The criminal is to go free because the constable has blundered."

The Fourth Amendment prohibits "unreasonable searches and seizures." It says nothing, however, about an exclusionary rule that is a purely court-created rule that the Warren Court applied to the states for the first time in 1961 in Mapp v. Ohio.

In the Hudson case, the police obtained a warrant authorizing a search of a defendant's home for illegal drugs and firearms. They went there, knocked on the door, and after three to five seconds, opened the door and entered. They found a large quantity of drugs and the defendant sitting in a chair with a loaded gun.

The defendant contended that the drugs and gun should have been excluded from evidence as the product of an unconstitutional search — because the police did not comply with a common law "knock and announce" rule the court had earlier read into the Fourth Amendment. Compliance by the police would have given the defendant time to answer the door.

Rejecting the contention, the Michigan courts convicted the defendant of unlawful drug possession.

The U.S. Supreme Court, in an opinion by Justice Antonin Scalia, held that the exclusionary rule was not applicable. The incriminating evidence was not obtained, he explained, as a result of the police's failure to comply with the knock and announce rule, but as a result of the lawful search warrant. Prior cases held that evidence obtained illegally is not to be excluded if it would have been obtained legally anyway.

Further, Scalia said, the purpose of the exclusionary rule is to deter police misconduct. It should not be applied where "its deterrence benefits are outweighed by its substantial social costs:" which include "the risk of releasing dangerous criminals into society."

This "massive remedy" is appropriate, he said, to deter police entry into a home without an authorizing warrant, but not to deter violation of the knock and announce rule, which merely delays an authorized entry. Also, the knock and announce rule is not applicable if the police have a "reasonable suspicion" that evidence may be destroyed.

The exclusionary rule is also not as justifiable as a deterrent to police misconduct today, Scalia pointed out, as it was when first applied to the states almost 50 years ago. Today, civil remedies against the police are available that were not available earlier, and Congress has even encouraged lawyers to take civil rights suits by authorizing payment of attorneys' fees to successful civil rights plaintiffs. Finally, Scalia argued, the exclusionary rule is less needed today because increasing police professionalism and internal discipline have made the police more respectful of citizens' constitutional rights.

The court's decision is actually a very limited one. It is not likely to have much effect on either police behavior or citizens' lives. The heated opposition to the decision seems to be based instead on the court's apparent willingness to rethink the value and need of the exclusionary rule.

In my view, the court would have chose better to simply overrule Mapp v. Ohio, and free the states from the exclusionary rule. This would return at least some control of criminal procedure to the states where it belongs. Instead of freeing criminals by excluding evidence of their crimes, wouldn't it make more sense to compensate the law-abiding by providing a remedy for unlawful police entry only when evidence of a crime is not found?

Graglia teaches constitutional law at The University of Texas at Austin School of Law.

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