Is the knock-and-announce rule still valuable in modern times?

[Ivan Seeking]

http://www.nytimes.com/2006/06/16/w...&en=84b4802158d1130d&ei=5094&partner=homepage



Yet another Constitutional protection weakened.

Was that rule just dumb in the first place or is this the need of the times?

Neither. It is just another sign that we've lost it. You'll never catch me saying the pledge again.

It makes me so sick listening to Bush talk about freeing Iraq with this nonsense happening at home.

 

[Ivan Seeking]

If the cops came bursting into my home unannounced, they'd likely be shot before I realized who it was.

Then of course I'd be shot, but oh well, as long as they catch more drug dealers.

 

[russ_watters]

It may not be reasonable to throw out the evidence, but if they break the rules while collecting the evidence they can't expect to use the evidence. The point I clearly made was that the Law is above all INCLUDING the police. If the law says they need to wait 20s then they should (Does it actually say this?).

Again, that is the whole point of the judicial review: to decide whether or not it is reasonable to throw out the evidence. Ie, you seem to agree with the USSC that it is not reasonable to throw out the evidence and therefore the law needs to be changed. Saying the law is the law so it shouldn't be broken is still missing the point: the point is to decide whether the law should be changed and you seem to agree that it should.

Thanks I am aware of how Judical systems work, but your comment might be useful for someone who doesnt.

Aware of it or not, you are not addressing that key point. You are essentially saying that the USSC should not be reviewing this law.

So you assume guilt before innoccence? Having a search warrent doesn't mean that the person who is about to be searched is guilty.

What? Where did I say anything about guilt or innocence? All that is at stake here is whether or not the evidence can be used in a trial. Ie: regardless of the ignmoniny of the broken door, the evidence still exists, still would have been found, and therefore still should be allowed to be used in the trial.

IF there are laws dictating the collection of evidence the Police need to follow them, if they don't it would be reasonable (and technically correct) to throw the evidence found out of the court.

Well the law has now been clarified by the USSC, so it is not technically correct to throw out the evidence. Does that change your position?

 

[russ_watters]

Best I can tell, this ruling actually sets precedent for issues like spousal privilege doctor-patient confidentiality as well since the exclusionary rule has effectively been overturned in this case. Those who feel such rights have been violated have the option to take their claim to civil court after the fact, but our police are no longer bound by our laws in their pursuit of evidence.

I don't see how that follows. Unlike with doctor-patient confidentiality, there is no question here about whether the evidence would be confidential: it is not.

Ie, if a doctor breaks confidentiality, the evidence itself is still tainted. The police would have evidence they would not have had if the doctor hadn't broken confidentiality. Here, the police would have gotten the evidence either way, so the evidence itself is not tainted.

 

[russ_watters]

If the cops came bursting into my home unannounced, they'd likely be shot before I realized who it was.

Then of course I'd be shot, but oh well, as long as they catch more drug dealers.

That's why I prefer the swat-team method: break down the door and toss a couple of flash-bangs in. That gives the cops about 10 seconds to secure the area before the people in the house regain their eyesight and hearing. Just breaking down the door still allows someone with easy access to a gun to use it and announcing your presence allows someone without easy access to a gun to go get one.

 

[russ_watters]

I wonder how the Supreme Court reconciles it's recent ruling with the one below?

http://www.trmagonline.com/Spring2003TR/spring2003knockandannounce.htm

It is mentioned in the article in the OP:

In that case, Wilson v. Arkansas, the court declined to say what the remedy should be for a violation of the knock-and-announce rule. Ordinarily, evidence that is seized illegally — in the absence of a warrant, for example — may not be used at trial, under what is known as the exclusionary rule.

By a strong majority, most state and federal courts that have considered the issue have applied the exclusionary rule to violations of the knock-and-announce requirement. In its decision on Thursday in Hudson v. Michigan, No. 04-1360, the Supreme Court upheld a ruling by the Michigan Court of Appeals, one of the few courts to have rejected the exclusionary rule in this context.

Basically that ruling didn't state what the remedy should be for violations of that principle. Though by a strong majority, courts have used the exclusionary principle, it hasn't been absolute.

 

[kyleb]

I don't see how that follows. Unlike with doctor-patient confidentiality, there is no question here about whether the evidence would be confidential: it is not.

The question is whether we require our police to work within our laws when pursuing evidence, or if we allow the use of illegal means to acquire legal evidence.

Ie, if a doctor breaks confidentiality, the evidence itself is still tainted. The police would have evidence they would not have had if the doctor hadn't broken confidentiality. Here, the police would have gotten the evidence either way, so the evidence itself is not tainted.

The violation of the right to doctor-patient confidentiality is what historically taints the evidence obtained by such means. No 'what if they didn't violate those rights' arguments do anything to change the fact that laws were broken in the process of obtaining the evidence.

 

[loseyourname]

Well technically yes, it should be thrown out if they broke the rules for engagement they can expect the court to disregard whatever they found whilest breaking these rules. It is missfortunate and the cops who did this should be fired, or at least repremanded. Untill the rules are changed they need to abide by them just like we do. I am against bending rules for cops, for me its a slippery slope, the law should be above all.

Well, that's just it. Judicial review created the 15-20 second guideline, but no USSC decision dictated an exclusionary principle for violation of this guideline. The lower courts did, but an until a case gets brought before the USSC and they rule on it, there is no official "law on the land" on this matter. It is up to the discretion of individual trial judges, who have tended in the past to apply an exlusionary principle. This judge did not, presenting an opportunity for the USSC to clarify whether or not an exclusionary principle officially applies to evidence obtained in violation of the 15-20 second guideline. They have decided it does not, and that is their right and prerogative. It is not written into the constitution and there is no legislation on this matter. The only reason the guideline exists in the first place is because of judicial review.

kyleb is wrong, too. The particular language of USSC opinions are very important in determining precedent. Scalia clearly states that the reason the Court chose not to apply an exlusionary principle for violation of the 15-20 second guideline is that the evidence would have been attained either way. In cases such as the violation of doctor/patient privilege, this line of reasoning cannot be applied, and so this decision does not change precedent in privilege cases. Nor would it change the exclusionary principle as applied to evidence obtained without a warrant. When determining precedent, it is far more important to look at the language and reasoning used in the majority opinion, and in the minority opinion for that matter, which does hold weight for the future, than simply looking at the ruling itself.

 

[kyleb]

The particular language of USSC opinions are very important in determining precedent. Scalia clearly states that the reason the Court chose not to apply an exlusionary principle for violation of the 15-20 second guideline is that the evidence would have been attained either way. In cases such as the violation of doctor/patient privilege, this line of reasoning cannot be applied, and so this decision does not change precedent in privilege cases.

The reasoning can be applied to situations where a violation of doctor-patient confidentiality leads to evidence which could otherwise have been acquired though legal means.

 

[loseyourname]

The reasoning can be applied to situations where a violation of doctor-patient confidentiality leads to evidence which could otherwise have been acquired though legal means.

Perhaps, but it's fairly rare that a medical practitioner would hand over incriminating evidence. Regardless of whether it was admitted, they'd be sued to high hell for it and probably have their license taken away for violating their oath to keep patient records confidential. None of that is going to change. Given the difficulty in actually coercing a doctor to hand over records, why would a police force choose to go this route when there is already a means by which they can get the same evidence without doing so? A judge still might throw it out, too, so why chance it?

You can keep your eye on the courts for the next few years, but I highly doubt this happens.

 

[kyleb]

Perhaps, but it's fairly rare that a medical practitioner would hand over incriminating evidence.

Beyond the fact that your use of the word "rare" admits that what you state does happen, willingly handing over such evidence is far from the only way in which doctor-patient confidentiality can be violated.

 

[russ_watters]

The question is whether we require our police to work within our laws when pursuing evidence, or if we allow the use of illegal means to acquire legal evidence.

That is self-contradictory ("allow...illegal means") and is not the question at issue here. The question is what should those laws be and what should be the remedy for violating them. That is what the USSC ruled on. The USSC agreed that a violation occurred and provided a remedy.

Violation of a law - any law - does not automatically imply a remedy (punishment), and that is what the USSC set out to clarify here.

The violation of the right to doctor-patient confidentiality is what historically taints the evidence obtained by such means. No 'what if they didn't violate those rights' arguments do anything to change the fact that laws were broken in the process of obtaining the evidence.

Huh? The evidence there cannot be gotten any other way than by a violation. It is quite clearly a different issue.

The reasoning can be applied to situations where a violation of doctor-patient confidentiality leads to evidence which could otherwise have been acquired though legal means.

You'll have to explain that: are you talking about evidence that was covered by doctor patient confidentiality and could have been discovered another way (by the way, there is a difference between "could have" and "would have" in this issue) or other evidence, not covered, found using evidence uncovered by the violation of doctor patient confidentiality? Either way, we're getting very speculative - your starting point is still beyond what is covered in this ruling becuase, again, your starting point is evidence that would not have been found without a violation. In general, it is not possible for clean evidence to be derived from tainted evidence, and this ruling would do nothing to change that.

You're weaving a tortuous path here trying to find a reduction in civil liberties, with vague hypotheticals and fictional scenarios. I sumit that if you need to do that much dancing to find it, it isn't really there. Just apply the USSC's test yourself - it is a very simple test.

 

[kyleb]

your starting point is still beyond what is covered in this ruling becuase, again, your starting point is evidence that would not have been found without a violation.

Could you please to go back though this thread and try and find a quote from me to back your statement here? When you don't find it, I'll gladly thank you to apologise for constructing your argument out of a strawman.

 

[Skyhunter]

If the cops came bursting into my home unannounced, they'd likely be shot before I realized who it was.

Which was the primary reasoning for the knock and annouonce rule in the first place.

http://www.fbi.gov/publications/leb/1997/may976.htm

The rule serves to protect both the individual citizen and the police from the risk of harm and the potential for violence that may occur as a result of an unannounced entry.20 Announcement protects officers by ensuring that they are not "mistaken for prowlers and shot down by a fearful householder."21 Innocent citizens also are protected from law enforcement officers who mistakenly might shoot armed occupants who merely are trying to defend themselves from who they preceive to be armed intruders.

I see this as another step in eliminating the exclusionary rule, which I am quite sure justice Scalia has a problem with.

 

[Skyhunter]

That's why I prefer the swat-team method: break down the door and toss a couple of flash-bangs in.

WOW

This is really your preferred method of serving a warrant?

Here is a scenario for you.

A man and his wife have an argument. He leaves and goes to his fathers house. She swears out a warrant, saying he beat her and has a gun. She gives his father's address as where he is. The police serve the warrant using your preferred "swat-team method."

I am glad we have not regressed to the police state mentality that you are advocating.

 

[kyleb]

I see this as another step in eliminating the exclusionary rule, which I am quite sure justice Scalia has a problem with.

That he does, get a load of http://www.law.cornell.edu/supct/pdf/04-1360P.ZO" . Here is a gem of backwards logic from it:

When, for example, a confessed suspect in the killing of a
police officer, arrested (along with incriminating evidence)
in a lawful warranted search, is subjected to physical
abuse at the station house, would it seriously be suggested
that the evidence must be excluded, since that is the only
“effective deterrent”?

 

[Hurkyl]

This is really your preferred method of serving a warrant?

Here is a scenario for you.

A man and his wife have an argument. He leaves and goes to his fathers house. She swears out a warrant, saying he beat her and has a gun. She gives his father's address as where he is. The police serve the warrant using your preferred "swat-team method."

I am glad we have not regressed to the police state mentality that you are advocating.

Are you saying that, unlike russ_waters, that you prefer the other option that was under consideration? That the police would break in, the father shoots at them, and he and some policemen die in the ensuing firefight?

I am glad we have not regressed to the police state mentality that you are advocating.

 

[kyleb]

Wow Hurkyl, that is an enormous leep in logic you pulled there.

 

[Hurkyl]

Wow Hurkyl, that is an enormous in logic you pulled there.

Well, I can't figure out what you meant to say, but allow me to recap:

If the cops came bursting into my home unannounced, they'd likely be shot before I realized who it was.

Then of course I'd be shot, but oh well, as long as they catch more drug dealers.

That's why I prefer the swat-team method: break down the door and toss a couple of flash-bangs in. That gives the cops about 10 seconds to secure the area before the people in the house regain their eyesight and hearing. Just breaking down the door still allows someone with easy access to a gun to use it and announcing your presence allows someone without easy access to a gun to go get one.

WOW

This is really your preferred method of serving a warrant?

Here is a scenario for you.

A man and his wife have an argument. He leaves and goes to his fathers house. She swears out a warrant, saying he beat her and has a gun. She gives his father's address as where he is. The police serve the warrant using your preferred "swat-team method."

I am glad we have not regressed to the police state mentality that you are advocating.

How do you propose I should have interpreted sequence of posts?

 

[kyleb]

Leap in logic, please pardon the previously missing leap.

 

[Skyhunter]

Are you saying that, unlike russ_waters, that you prefer the other option that was under consideration? That the police would break in, the father shoots at them, and he and some policemen die in the ensuing firefight?

Other option?

I am suggesting that they do it the way they always have.

They knock on the fathers door, serve the warrant, arrest the husband and let a judge and jury decide his guilt or innocence.

 

[Astronuc]

Police See No Change in Policy on Searches
http://www.npr.org/templates/story/story.php?storyId=5493387
by Nina Totenberg

All Things Considered, June 17, 2006 · A Supreme Court ruling that protects evidence collected by police who fail to knock and announce themselves. But police professionals say they see no need to change their normal practices. They don't feel handcuffed by existing rules.

The police officials apparently prefer policemen to knock in order to inform the resident(s) of a place for which they have a warrant. It is a matter of safety.

 

[Cyrus]

1. Cyrus, I was providing the case history involving interpretation of the 4th. It's usually not your interpretation (of the Constitution) or mine that decides what's the law, but the legal precedent on the matter( if such exists). Besides, the argument that you needn't knock because you have a warrant is baseless. Why then, would there only be a specific type of warrant that gives the cops the right to not have to knock?

That being said, you are making a counter argument against yourself. If the police entering your home with a search warrant is unconstitutional, then the specific "knockless" warrant would be unconstitutional (if its unconstitutional, then any knockless warrant is unconstitutional, special issue or not). Was there any problems on the issuing of "knockless" warrants? Not until now.

2. Yes, it ticks me off when someone gets off on a technicality. I'm sure it pisses of most reasonable people including judges that have sat on various courts for hundreds of years now.

Those must be some very old judges .

Let's look at this with some realistic considerations, since many here seem not to. (Not aimed at you Gokul).

Someone I know is becoming a police officer. He told me that once you put on that uniform, people treat you differently. No one wants to talk to you. That being said, the last thing the police are going to do is carry out knockless searches exclusively. It would ruin their reputatation on the street, and no one would be willing to aid them.


Now, correct me if I am wrong, but it is up to the state to decide if they want to allow their police force to have the ablity to perform knockless searches with a warrant. They can always remove this authority if it becomes abused by the police, because defining reasonable is a flexability the state has to toy with so long as the supreme court does not say no.

Just because they can carry out that type of search does not mean that they will do it all the time.

 

[kyleb]

The Court says:

The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one. See Wilson v. Arkansas, 514 U. S. 927, 931–932 (1995) . Since 1917, when Congress passed the Espionage Act, this traditional protection has been part of federal statutory law, see 40 Stat. 229, and is currently codified at 18 U. S. C. §3109. We applied that statute in Miller v. United States, 357 U. S. 301 (1958) , and again in Sabbath v. United States, 391 U. S. 585 (1968) . 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.

Although obviously, as with a search itself, the right to announced entery can be suspended though a duly authorized warrant. Regardless, that was not an issue in this case:

Happily, these issues do not confront us here. From the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation. The issue here is remedy. Wilson specifically declined to decide whether the exclusionary rule is appropriate for violation of the knock-and-announce requirement. 514 U. S., at 937, n. 4. That question is squarely before us now.

Again, the Court's ruling here allows the use of illegal methods to produce legal evidence.

 

[Cyrus]

The Court says:

Although obviously, as with a search itself, the right to announced entery can be suspended though a duly authorized warrant. Regardless, that was not an issue in this case:

Again, the Court's ruling here allows the use of illegal methods to produce legal evidence.

...and there you go again saying things that are factually incorrect. If a court rules that it is acceptable, then by definition it cannot be an illegal method. Is this so hard for you to understand? By definition, the courts decide what falls within the bounds of the law.

You need to stop being so sloppy in your choice of words, this is getting pathetic.

 

[kyleb]

I chose my words carefully to reflect the truth, you understanding of that truth is the only thing that is pathetic and sloppy here.

 

[Cyrus]

I think the truth of the issue is quite clear and explained in the article. You are the one who is manipulating the facts with your poor choice of words. (on purpose I might add).

 

[kyleb]

The truth is explained in the opinion of the Court which I have linked to and quoted from multiple times now, but you keep getting your facts wrong while falling back to indirect sources and semantic arguments anyway.

 

[Cyrus]

Look at what you said in your last post with a source.

Again, the Court's ruling here allows the use of illegal methods to produce legal evidence.

As russ has already pointed out, how can a court allow illegal methods? What don't you understand?

You keep making arguments with statements that make no sense!

 

[russ_watters]

Other option?

I am suggesting that they do it the way they always have.

They knock on the fathers door, serve the warrant, arrest the husband and let a judge and jury decide his guilt or innocence.

"The way they always have" depends on the perceived threat, Skyhunter. The method I described is a common method when the perceived threat is high.

Here is a scenario for you.

A man and his wife have an argument. He leaves and goes to his fathers house. She swears out a warrant, saying he beat her and has a gun. She gives his father's address as where he is. The police serve the warrant using your preferred "swat-team method."

If they believe her and think he's armed and willing to use the gun, what is the problem with that method? It is the safest for everyone involved, in that case.

Please explain your reasoning here.

 

[russ_watters]

Could you please to go back though this thread and try and find a quote from me to back your statement here? When you don't find it, I'll gladly thank you to apologise for constructing your argument out of a strawman.

Doctor-patient confidentiality is what you were talking about, kyleb. That's information that is by defnition confidential and therefore getting the information itself is by definition illegal. It doesn't get any more straightforward than that. It is your scenario, not mine.

 

[russ_watters]

The question is whether we require our police to work within our laws when pursuing evidence, or if we allow the use of illegal means to acquire legal evidence.

I didn't want to get into this because it is pretty much useless, but since it launched a semantics debate, let me at least explain my take. I'm sure you choose your words carefully, but perhaps even because of that, it is a very problematic statement.

The means (not waiting long enough before entering after knocking) is still illegal, and there is a remedy for it - just not the one you want. The Court decided that if the warrant itself was legal, then the illegal means of serving it is irrelevant to the legality of the evidence (as long as the means used do not affect the actual discovery of the evidence) - not allowed or disallowed, just simpy not relevant. So the ruling is not allowing illegal means or illegal evidence to be used.

This, perhaps, is where you get your jumping off point for the doctor-patient confidentiality thing. You haven't explained your logic - you haven't even outlined a hypothetical scenario, but perhaps you are thinking that if the evidence in this case is illegal (again, self-contradictory) then the courts might allow other illegal evidence (such as that protected by doctor-patient confidentiality) to be used. Nonsense.

But again, if you want to make a point, if you want to avoid confusion, make a coherent and reasoned argument. The one-liners, insinuations, and leading/misleading questions don't make for a very well-argued point.

 

[Cyrus]

The means (not waiting long enough before entering after knocking) is still illegal, and there is a remedy for it - just not the one you want. The Court decided that if the warrant itself was legal, then the illegal means of serving it is irrelevant to the legality of the evidence (as long as the means used do not affect the actual discovery of the evidence) - not allowed or disallowed, just simpy not relevant. So the ruling is not allowing illegal means or illegal evidence to be used.

This clarifies it for me Russ, thanks. Now my question for you. As Gokul has pointed out, there are knock less warrants that can be issued. Given this fact, doesn’t it seem illogical to say that knock less warrants are unconstitutional ? If they were unconstitutional, you could not issue them, period. And I think that this part you included, provided that they said the same is critical

(as long as the means used do not affect the actual discovery of the evidence)

In my opinion, the ruling shows good judgment unless someone can show otherwise.

 

[russ_watters]

Now my question for you. As Gokul has pointed out, there are knock less warrants that can be issued. Given this fact, doesn’t it seem illogical to say that knock less warrants are unconstitutional ? If they were unconstitutional, you could not issue them, period.

I must have missed that part - did the court rule knockless warrants unconstitutional? AFAIK, this case did not address knockless warrants. I'm not sure what you are talking about here...

 

[Skyhunter]

"The way they always have" depends on the perceived threat, Skyhunter. The method I described is a common method when the perceived threat is high. If they believe her and think he's armed and willing to use the gun, what is the problem with that method? It is the safest for everyone involved, in that case.

Please explain your reasoning here.

In the scenario I described there was no evidence other than the wife's word. Even if the husband had a gun he had not yet used it.

The house does not belong to the suspect, so therefore the property of an innocent citizen, and the persons of anyone else in the house would be subjected to what amounts to a military raid.

Now if they are serving a warrant against a known gang member, at the gangs home base, I can see using your method, provided the warrant specifically authorizes a knock less entry.

Your method would result in a lawsuit against the law enforcement agency and other civil institutions. And I shudder to think how the SC would rule on that one. Currently it would probably be 4, 4, and Kennedy.

I must say that the exclusionary rule is extreme in this case, however there must be some method of enforcing what is clearly, based on SC precedent, a fourth amendment issue. In this particular case I think the police knocked, tested the handle, found it unlocked and walked right in.

I had my home broken into in 1990. The police arrived while my housemate was calling them. As it turns out a neighbor saw the thieves carrying my computer out the door. The police said they had gotten a call about the thieves taking it to the "yellow house". I knew immediately which house it was and took them there. The thieves were carrying my computer through the front door, so the police just followed them right inside without knocking.

Since they had probable cause they did not need a warrant, nor did they need to knock first.