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Old June 15, 2006, 10:49 AM   #1
Rich Lucibella
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Just a "Minor Setback" for Fourth Amendment Rights

Fox News breaking Story....looking for more on it now.

Quote:
WASHINGTON — The Supreme Court ruled Thursday that police can use evidence collected with a warrant even if officers fail to knock before rushing into a home.

Justice Samuel Alito broke a 4-4 tie in siding with Detroit police, who called out their presence at a man's door then went inside three seconds to five seconds later.

The case had tested previous court rulings that police armed with warrants generally must knock and announce themselves or they run afoul of the Constitution's Fourth Amendment ban on unreasonable searches.

Justice Antonin Scalia, writing for the majority, said "whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house."

The court did not say how long police officers must wait after knocking before they enter a home to execute a search warrant.

But suppressing evidence is too high of a penalty, Scalia said, for errors in police searches.

The outcome might have been different if Justice Sandra Day O'Connor was still on the bench. She seemed ready, when the case was first argued in January, to rule in favor Booker Hudson, whose house was searched in 1998.

She retired before the case was decided, and a new argument was held so Alito could participate in deliberations.

Hudson's lawyers argued that evidence against him was connected to the improper search and could not be used against him.

Scalia said that a victory for Hudson would have given "a get-out-of-jail-free card" to him and others.
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Old June 15, 2006, 11:04 AM   #2
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Detailed Overview:
http://docket.medill.northwestern.ed...ves/002753.php
Quote:
Hudson, Booker v. Michigan

Related Links

Docket:04-1360

Term: 05-06

Appealed From: Michigan Court of Appeals (April 13, 2005)

Oral Argument: 05-18-06 / 01-09-06

Opinion Issued:

Subject:4th Amendment, knock and announce, exclusionary rule

Question presented: Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a 4th Amendment "knock and announce" violation, as the 7th Circuit Court of Appeals and the Michigan Supreme Court have held, or is evidence subject to suppression after such violations, as the 6th and 8th Circuits, the Arkansas Supreme Court and the Maryland Court of Appeals have held?

BY DANIEL WELCH, MEDILL NEWS SERVICE

On a Thursday afternoon in August 1998, Booker Hudson, Jr. sat in the front room of his Detroit home. Suddenly seven Detroit police officers burst through Hudson’s front door and ordered him to freeze.

They had a search warrant for drugs, and Officer Jamal Good found five rocks of crack cocaine in Hudson’s pocket. After the police found more drugs and a gun elsewhere in the house, Hudson was charged in Wayne County Circuit Court with possession of cocaine with intent to deliver and illegal firearm possession.

Hudson’s attorney, Richard Korn, moved to suppress the evidence found in the home, arguing the police had violated Hudson’s 4th Amendment rights by ignoring the knock and announce requirement upon entering his home.

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.

“One officer said, ‘Yeah, I’ve been shot at before,’ and that’s why he didn’t want to wait,” said Timothy Baughman, chief of appeals for the Wayne County Prosecutor’s Office.

While Hudson’s case was in the trial court, the Michigan Supreme Court ruled in People v. Stevens that evidence found after a knock and announce violation need not necessarily be suppressed.

In spite of Stevens, the trial court judge ruled the evidence found in Hudson’s home should be suppressed and dismissed the charges.

“The judge didn’t want to apply People v. Stevens,” Baughman said. “Basically, the judge said the precedent wouldn’t apply in this case.”

The Michigan Court of Appeals reversed the suppression order on May 1, 2001, agreeing with the prosecution that the trial judge’s ruling was in disagreement with Stevens.

Back in circuit court, a judge found after a two-day bench trial that the prosecution hadn’t proven the gun or the drugs found in Hudson’s home belonged to him. The judge did sentence Hudson to 18 months probation for the cocaine found in his pocket.

Hudson appealed again, as Korn argued that the conviction was unconstitutional because even the drugs in Hudson’s pocket should have been suppressed as evidence after the knock and announce violation. The Michigan Court of Appeals affirmed the conviction without oral argument in June 2004, citing Stevens as the binding precedent for allowing the evidence. The Michigan Supreme Court denied Hudson’s leave to appeal.

On June 27, 2005, the U.S. Supreme Court accepted review in the case.

Wayne State University Law School professor David Moran, who will argue Hudson’s case, says the 4th Amendment’s protection against “unreasonable searches and seizures” is at stake. At issue in this case is whether evidence obtained after a knock and announce violation is the fruit of an “unreasonable” entry, and therefore subject to suppression.

A point of contention in the case is the inevitable discovery doctrine, which requires the police to demonstrate that the evidence could have been discovered through a source other than the constitutional violation, thereby establishing that the discovery was inevitable.

Baughman says this case is not about inevitable discovery at all, arguing instead there is no causation between the entry and the seizure. He argues the Court would be wrong in treating an error in the timing of entry the same as it would treat a more egregious mistake, like failing to obtain a search warrant.

“The entry itself was not illegal; the issue is the manner of entry,” Baughman said. “[The officers] were going to go in anyway. The fact that they didn’t wait doesn’t reverse that.”

“The police misconduct had nothing to do with the discovery of evidence,” he said.

Moran disagrees, arguing that the evidence was the direct reward of the violation.

“I reject the notion that finding evidence inside the home is independent of the method of entering the home,” Moran said.

The 7th Circuit Court of Appeals has agreed with the Michigan Court of Appeals in similar cases, but the 6th and 8th circuits have ruled that evidence obtained after knock and announce violations should be suppressed. Moran said at least 24 states share this standard.

Moran hopes the Supreme Court will reaffirm two cases which he says set a precedent for suppressing evidence, Miller v. U.S. (1958) and Sabbath v. U.S. (1968). In deciding Miller, the Court noted the requirement is “deeply rooted in our heritage and should not be given grudging application.”

Moran expects Baughman to argue that remedies other than suppression should be applied, like civil or criminal penalties against the officers, but he said these options fall woefully short.

“The criminal prosecution of officers is never going to happen,” he said, citing Mapp v. Ohio (1961), which called other remedies “worthless and futile.”

Moran added that he could find only two cases in which a knock and announce victim won a civil lawsuit against the police, and in those cases the victim was awarded only $1.

Baughman questioned the wisdom of giving suspects time to flush drugs down the toilet – or worse, to take the warning time to arm themselves.

Moran said the risks of permitting the violation outweigh the benefits in this case.

“That stuff can happen, but that’s one of the costs of living in a free society,” he said. “Sometimes the Constitution protects criminals.” He added violations may be appropriate if the police have reason to believe that suspects are armed or will try to destroy evidence.

Both attorneys fear the precedent that would be set should they lose the case.

Baughman argues that if the only remedy available for a violation is suppression of evidence, defense attorneys will try to take advantage of the lack of other remedies and successfully exclude credible evidence.

“If your only tool is a hammer, everything looks like a nail,” he said.

Moran’s fear is that the police will no longer be required to enter a home lawfully.

“The police and prosecution in this case have from day one conceded that the knock and announce requirement was violated,” Moran said. “And their attitude is, ‘So what?’ If we lose, that will be the national attitude.”

On Jan. 9, 2006, oral arguments were heard in the case, and then three months later, on April 19, the case was restored to the calendar for reargument.

Attorneys in this case:
Attorneys for Petitioner:
David A. Moran
Wayne State University Law School
(313) 577-4829
471 W. Palmer St.
Detroit, MI 48202
Party name: Booker T. Hudson, Jr.

Attorneys for Respondent:
Timothy A. Baughman
Wayne County Prosecutor's Office.
(313) 224-5792
1441 St. Antoine, 12th Fl.
Detroit, MI 48226
Party name: Michigan

Other:
Tracey Maclin
Boston University of Law
(617) 353-4688
765 Commonwealth Avenue
Boston, MA 02215
Party name: Cato Institute and National Association of Criminal Defense Lawyers

Related Links:
Michigan Court of Appeals unpublished memorandum opinion (June 17, 2004)

Brief - Michigan


Posted September 1, 2005 03:07 AM
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Old June 15, 2006, 11:06 AM   #3
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noto bene...the crux of the argument:
Quote:
Baughman questioned the wisdom of giving suspects time to flush drugs down the toilet – or worse, to take the warning time to arm themselves.

Moran said the risks of permitting the violation outweigh the benefits in this case.

“That stuff can happen, but that’s one of the costs of living in a free society,” he said. “Sometimes the Constitution protects criminals.” He added violations may be appropriate if the police have reason to believe that suspects are armed or will try to destroy evidence.
[snip]
“If your only tool is a hammer, everything looks like a nail,” he said.

Moran’s fear is that the police will no longer be required to enter a home lawfully.
Much ado about nothing. After all, if you have "nothing to hide" you certainly don't need "rights". :barf:
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Old June 15, 2006, 11:13 AM   #4
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It's Will Get Worse Before it Gets Better

There is no such thing as a "minor" setback for ANY of the rights enumerated in the BOR. Its guarantees are directly responsible for more human freedom than those contained in any other single document in the history of man.

I haven't read the opinion yet, but I'm under the impression is says "It's wrong to bust in without knocking, but we're not going to suppress the evidence because that's just too severe a sanction".

WITHOUT severe enough a sanction to deter it, such violations will explode.

There are a LOT more reasons to excoriate the decision as well. Did those five wise Solons also explain the implications of this fine decision for the Castle Doctrine? Or announce ITS new parameters? I doubt it. Say the Police get the wrong house. If you try to defend yourself, which is your absolute !#$$##$%^ right, you will die.

My guess is that the new policy is: "Submit to wrongfully exercised power or die".

A "free" country?

What is happening to us?
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Old June 15, 2006, 11:18 AM   #5
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In a police state - why should the police have to knock?
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Old June 15, 2006, 11:19 AM   #6
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Here's another story: http://www.cnn.com/2006/LAW/06/15/sc....ap/index.html

Very depressing.
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Old June 15, 2006, 11:21 AM   #7
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Huge Libertarian here but I gotta ask:
If a judge has issued a warrant and probable cause has been demonstrated....why is it 'unreasonable' to crash the gate? I personally don't have an answer for that.
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Old June 15, 2006, 11:23 AM   #8
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nagant-
The title of the thread is sarcastic.

From what I can glean, the argument hinged on "inevitable discovery"; ie: that the Police would have discovered the crack rocks in the perp's pocket anyway, had they not violated his rights.

Well, of course they wouldn't have. He'd have flushed them. Most readers here, I suspect, will call it a "good" ruling", because they see its ramifications only in light of the conviction one crack user. They will fail to see the doors this opens to other situations.

GoSlash-
Good point. By the same logic, they caught the guy "red-handed". Why even have a jury trial when a Judge might just as easily hear argument, convict and sentence?

Quote:
First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out because I was not a Communist.
Then they came for the trade unionists
and I did not speak out because I was not a trade unionist.
Then they came for me
and there was no one left to speak out for me.


- Pastor Martin Niemöller
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Old June 15, 2006, 11:24 AM   #9
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Slash, it's unreasonable because not all warrants are obtained legally, and not all warrants are accurate. Ask anyone who's been murdered by SWAT JBTs who kicked in the wrong door.

Oh wait, you can't ask them, because they're dead.
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Old June 15, 2006, 11:35 AM   #10
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Quote:
After all, if you have "nothing to hide" you certainly don't need "rights".
That seems to be the prevailing school of thought these days. The Founders must be spinning in their graves.
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Old June 15, 2006, 11:39 AM   #11
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And the underlying theme why we sacrifice our 4th Amendment rights against warrentless searches and seizures????


The narcotic laws in this country in almost every court justified police intrusion!

Do away with these silly drug laws and we'll be a much more free society.
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Old June 15, 2006, 11:59 AM   #12
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Quote:
"but that’s one of the costs of living in a free society"
He said it right there. However, I don't see knocking before entering a home when you have a warrant paramount to a search's reasononability. The warrant says you can go in? You can go in. If it says you have to knock on the door and have tea first, that's what you have to do. Just don't come crying to me when the first guy in gets shot in the face because the occupants didn't know [color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color] was going on.
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Old June 15, 2006, 12:01 PM   #13
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Quote:
That seems to be the prevailing school of thought these days. The Founders must be spinning in their graves.
actually its not a recent devleopment, see Nix Vs Williams (1984?)


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Old June 15, 2006, 01:35 PM   #14
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Old June 15, 2006, 01:39 PM   #15
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Rich,
It's not logic. It's an honest question. How, exactly, is it a violation of my civil liberties if the police execute a warrant against me without knocking?

I'm inclined to agree with Martigan here; the people who suffer from not knocking first are ultimately the cops themselves. Somebody crashes into my house like that without announcing themselves....well, let's just say I'm a dead man and I'm not alone.
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Old June 15, 2006, 01:51 PM   #16
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Quote:
Originally Posted by goslash27
How, exactly, is it a violation of my civil liberties if the police execute a warrant against me without knocking?
The worst they would catch me doing is sittin on my couch in my drawers:barf: drinkin a cold beer!
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Old June 15, 2006, 01:59 PM   #17
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Quote:
How, exactly, is it a violation of my civil liberties if the police execute a warrant against me without knocking?
Dunno.
- How exactly is it a violation of your rights to muzzle you if you're engaging in "Hate Speech"?
- How exactly is it a violation of your rights to have Full Gun Registration if you're law abiding?
- How exactly is it a violation of your rights if .gov chooses to use your spare bedroom to quarter a soldier, so long as they pay you rent?
- How exactly is it a violation of your rights to demand strip searches of "suspicious" characters at the subway station?
- How exactly is it a violation of your rights to try you without allowing you to face your accuser, so long as the Judge "knows you're guilty"?

That's BoR 1-5.
Need I do 6-10?

Rich

ps: The answer: It's a violation of your rights because it can easily be abused but the most minor functionary; it's a violation because it puts .gov above its Master.
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Old June 15, 2006, 02:06 PM   #18
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I have just finished reading the full story and all I can say is that it is taking most of my willpower to not go off my meds, move to a cabin in the woods and start writing manifestos.
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Old June 15, 2006, 02:07 PM   #19
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I would have thought the publisher of SWAT mag would have applauded the ruling. Good to see I would have been mistaken.
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Old June 15, 2006, 02:10 PM   #20
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Does it actually say in the fourth amendment that--- A warrant must be preceeded by a knock on the door?
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Old June 15, 2006, 02:21 PM   #21
Rich Lucibella
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Contender-
What it says is:
"...no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

But we have long since dropped those standards. Why should the traditionally required knock stand in this time of Perpetual War?

I assume you ask from a position of enlightenment, yes? You do know the history of Warrants as they led to the requirement to Knock, followed by No-Knocks, followed now by what may well be "Never Knock"?


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Old June 15, 2006, 02:22 PM   #22
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Quote:
Originally Posted by Mannlicher
I would have thought the publisher of SWAT mag would have applauded the ruling. Good to see I would have been mistaken.
Check out the sticky thread in the General Discussion forum regarding Rich's interview with Aaron Zelman. It'll give you an idea of what SWAT is about, and a glimpse about how our gracious host thinks on a few things...
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Old June 15, 2006, 02:24 PM   #23
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The problem, as I may have metioned before, is the nebulous nature of the 4th amendments determination of reasonableness.

One mans reasonable is anothjer mans unreasonable.

The key then is drafting a statue that is constitionally acceptable state and federal and gives detailed guidelines. Compare Chapter 35 of the Alaska Code of criiminal Procedure (woefully nebulous) to NY CPL 690 (somewhat more detailed).


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Old June 15, 2006, 02:25 PM   #24
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Clearly the appropriate response is for us to have stronger doors. Whether or not we have anything to hide. By the way, who said, "Live free or die?"
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Old June 15, 2006, 02:28 PM   #25
Wildalaska
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Quote:
You do know the history of Warrants as they led to the requirement to Knock, followed by No-Knocks, followed now by what may well be "Never Knock"?
Actually I think it went from Never Knock to Knock Sometimes to Knock to No Knock to Maybe Knock unless you NO Knock

Lot of door busting going down in the 1920s

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