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

[russ_watters]

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.

As I said, the cops need to make a judgement call based on their assessment of the credibility of the tip. They may or may not accept 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.

That is completely irrelevant. Human life far outweighs property concerns and therefore is the police's only consideration when determining what tactics to use in a situation where lives may be at stake, as was clearly the case with Ivan's example, and may or may not be judged as such in yours. First they assess the risk, then they decide on the appropriate tactics. If the risk is low, property concerns may be taken into account. If the risk is high, they are not.

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.

Sure - like I said, it is a judgement call and even in your first hypothetical it could go either way.

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.

My response to Ivan was regarding his specific scenario or type of scenario: one where there is a reasonable expectation that lives may be at risk during the breach. I was not saying that police should always use the "swat team method".

And sure - regardless of the outcome, in today's America, I'm sure it would result in a lawsuit. That's why we need tort reform. But that's another discussion...

 

[kyleb]

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 ?

No one here claimed that no-nock warrants are unconstitutional; but rather, unannounced entry is unconstitutional without such a warrant, as happened in this case, and Michigan conceded their violation of the Fourth Amendment here. The Court did not rule the entry acceptable, the means used is still illegal just as Russ stated. Is this clear to you now?

Russ, after much trying of my own, I greatly thank you for helping Cyrus to understand that the entry was not legal. Beyond that, feel free to point out what you find incoherent or unreasoned in what I have said here; but I think you are simply misinterpreting my desire to remain direct and on point. I don't want to abstract onto doctor patient confidentiality as that was simply a side point introduced by Gokul, and I did not get snippy with Cyrus but for the fact that he was belligerently arguing against the reality that the entry was illegal in this case.

But regardless of any of that, let us move on the root of your, and the Court's, opinion here:

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.

Yes, that is what I have been saying all along, leaving out the direct semantic conflict for Cryus's sake; illegal means has been allowed to produce admissible evidence. Where we are disagreeing here is that your, and 5 of the Justices, argument is based on what is contested would have happened if the police had conducted a legal entry; were as my opinion, along with the 4 dissenting Justices, is based on what actually did happen.

 

[Cyrus]

I said it was unconstitutional, because Gokul's source said:

WASHINGTON, June 15 — Evidence found by police officers who enter a home to execute a search warrant without first following the requirement to "knock and announce" can be used at trial despite that constitutional violation, the Supreme Court ruled on Thursday.

The 5-to-4 decision left uncertain the value of the "knock-and-announce" rule, which dates to 13th-century England as protection against illegal entry by the police into private homes.

Justice Antonin Scalia, in the majority opinion, said that people subject to an improper police entry remained free to go to court and bring a civil rights suit against the police.

But Justice Stephen G. Breyer, writing for the dissenters, said the ruling "weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection." He said the majority's reasoning boiled down to: "The requirement is fine, indeed, a serious matter, just don't enforce it."

Perhaps I missread it? But it appears that "knockless" entry with a warrant would be unconstitutional. Thus my statement about special issue warrants for knockless entry making no sense to me.

 

[kyleb]

Does it make sense to you that a warrant can authorize a search that would otherwise be unconstitutional? That same logic applies to no-knock provisions for such warrants.

 

[Cyrus]

I'm afraid that I don't understand what you are trying to say.

What I am saying is that reading Gokul's original article, it appears to say that the search was unconstitutional because the officers did not first knock. If that is true, then what Gokul said, (the ability of a judge to issue a knockless warrant), seems contradictory. Yes?

 

[kyleb]

No, that is not contradictory at all; just as all the searches which have been found unconstitutional because officers did not have warrants by no means contradicts the ability of judges to issue warrants. I am honestly at a loss as to what you find confusing here.

 

[Cyrus]

Just as all the searches which have been found unconstitutional because officers did not have warrants by no means contradicts the ability of judges to issue warrants.

But that's comparing two dissimilar entities!

If a search is found to be unconstitutional because a police officer did not have a warrant, that means the evidence will be thrown out. That does not affect the ability of the judge to issue any further warrants.


Let's look at this once more. The police can enter and search an establishment with a warrant. Agreed? Now let's say the constitution specifically says that the police MUST knock before entering any establishment, no matter what. Then the very fact that there even exists such a warrant that gives the police explicit authority to enter without knocking is going to have to be in violation of the constitution.

 

[kyleb]

I'm sorry but I'm not going to venture into your hypothetical situation as I don't want your speculation of what otherwise could be to distract from what actually is. As for my comparison; you are distracting yourself with the disparity in the effects while my comparison is specifically directed at your question of causation. I agree with you that the effects should be the same, and so do the four Justices who dissented on this ruling.

 

[Skyhunter]

As I said, the cops need to make a judgement call based on their assessment of the credibility of the tip. They may or may not accept it. That is completely irrelevant. Human life far outweighs property concerns and therefore is the police's only consideration when determining what tactics to use in a situation where lives may be at stake, as was clearly the case with Ivan's example, and may or may not be judged as such in yours. First they assess the risk, then they decide on the appropriate tactics. If the risk is low, property concerns may be taken into account. If the risk is high, they are not. Sure - like I said, it is a judgement call and even in your first hypothetical it could go either way. My response to Ivan was regarding his specific scenario or type of scenario: one where there is a reasonable expectation that lives may be at risk during the breach. I was not saying that police should always use the "swat team method".

I get the feeling from your posts that you would opt for the S.W.A.T. method more often than I.

And sure - regardless of the outcome, in today's America, I'm sure it would result in a lawsuit. That's why we need tort reform. But that's another discussion...

Except that tort reform will mean less remedies for those who are harmed. You know as well as I that tort reform will help corporations more than individuals. Just like the majority of the legislation coming out of this corporate Congress. But like you said, it is another discussion.

 

[russ_watters]

Does it make sense to you that a warrant can authorize a search that would otherwise be unconstitutional? That same logic applies to no-knock provisions for such warrants.

I said it was unconstitutional, because Gokul's source said:

Perhaps I missread it? But it appears that "knockless" entry with a warrant would be unconstitutional. Thus my statement about special issue warrants for knockless entry making no sense to me.

Same answer to both of you:

The 4th amendment says "unreasonable", and what is reasonable depends on the case. In some cases, it is reasonable to knock (and wait) and in some cases it is reasonable not to knock, and there are different warrants covering different cases. It was stipulated in this case (the court didn't rule on it, the prosecution stipulated to it ahead of time), it was unreasonable not to knock and wait (since the warrant didn't specify that they could), so the action was therefore a violation of the 4th amendment. All that was at stake here was the remedy.

The court is not making a general statement about when it is reasonable to enter without knocking and it certainly does make sense to have different warrants for different situations. It is not a contradiction and it is not "otherwise unconstitutional" to have different warrants for different standards.

 

[russ_watters]

Where we are disagreeing here is that your, and 5 of the Justices, argument is based on what is contested would have happened if the police had conducted a legal entry; were as my opinion, along with the 4 dissenting Justices, is based on what actually did happen.

That article does not go into detail on the reasoning of the dissenting opinion. The text of the opinions can be found http://www.law.cornell.edu/supct/html/04-1360.ZS.html"

Some of the basic logic, and the basic point of disagreement between the majority and dissenting opinions:

For another thing, the driving legal purpose underlying the exclusionary rule, namely, the deterrence of unlawful government behavior, argues strongly for suppression.

Essentially, the majority says a civil suit is enough of a deterrent and the dissenters say it is not.

The would-have/could-have thing is covered here (last sentence is clearest):

The majority first argues that “the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence.” Ante, at 5. But taking causation as it is commonly understood in the law, I do not see how that can be so. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 266 (5th ed. 1984). Although the police might have entered Hudson’s home lawfully, they did not in fact do so. [and therefore they do not entertain the question of what would have followed]

The Court nonetheless accepts Michigan’s argument that the requisite but-for-causation is not satisfied in this case because, whether or notthe constitutional violation occurred (what the Court refers to as a “preliminary misstep”), “the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.” Ante, at 5. As support for this proposition, Michigan rests on this Court’s inevitable discovery cases. [key term emphasized]

So you are right that the dissenters do not take into account whether or not the evidence would have been found had the search been conducted legally. They seem to agree that it would have, but simply say it was not relevant that it would have.

So this may just have to be an agree-to-disagree issue: I agree with the majority that it matters that the evidence would have been found had the police waited another 20 seconds.

There is a portion of the dissenting opinion relevant to what you were saying about doctor-patient confidentiality:

Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920) . This case created an exception to (or a qualification of) Weeks’ exclusionary rule. The Court held that the Government could not use information obtained during an illegal search to subpoena documents that they illegally viewed during that search.

You still haven't clarified what your fear was, but it seemed like you were worried about evidence derived from information gained via a violation of doctor-patient confidentiality. The above ruling clearly makes such evidence inadmissable, and this ruling doesn't change that.

 

[russ_watters]

I get the feeling from your posts that you would opt for the S.W.A.T. method more often than I.

I'm sure I would.

Except that tort reform will mean less remedies for those who are harmed.

No. Tort reform means less frivoless lawsuits. It is not designed to stop people who are actually harmed, but only those who were not but argue they were. Separating the two is a simple matter of requiring the loser to pay the court costs of the winner or by the judge ruling the case as frivoless and assessing a fine before it even gets to open court.

Frivoless lawsuits are a cancer that is dragging the american economy down - why do you think healtcare costs are going up so much?

You know as well as I that tort reform will help corporations more than individuals.

Will it? Who pays for the outcome of the lawsuit? I got in a car accident (I rear-ended someone) and got sued by a guy who was fine when he got out of the car. He sued me and got $70,000. Yes, it is possible that he woke up the next day with a sore neck, but I don't believe for a second that he did. Regardless, who paid that $70,000? The insurance company, sure, but where did they get the money? From you and me. So yes, it will help the insurance companies if people sue less, but it will also help you and me.

Also of critical importance is who should be sued. If, for example, it is determined that in your hypothetical the police acted improperly, then they are liable for the damage. If, however, it is determined that the police acted prudently, then it is the husband not the police who are responsible for the damage. The courts do not do enough to ensure that it is the right party who has to pony up even in a just lawsuit.

 

[kyleb]

That article does not go into detail on the reasoning of the dissenting opinion. The text of the opinions can be found http://www.law.cornell.edu/supct/html/04-1360.ZS.html"

I read both last week and I have sighted and linked to the majorty opinion avalable on that website in a couple of previous posts here, but I thank you for catching up.

Some of the basic logic, and the basic point of disagreement between the majority and dissenting opinions: Essentially, the majority says a civil suit is enough of a deterrent and the dissenters say it is not.

Yes, I am already aware of this as well. Here is a bit of the dissent's contest to that claim:

Of course, the State or the Federal Government may provide alternative remedies for knock-and-announce violations. But that circumstance was true of Mapp as well. What reason is there to believe that those remedies (such as private damages actions under 42 U. S. C. §1983), which the Court found inadequate in Mapp, can adequately deter unconstitutional police behavior here? See Kamisar, In Defense of the Search and Seizure Exclusionary Rule, 26 Harv. J. L. & Pub. Pol’y 119, 126–129 (2003) (arguing that “five decades of post-Weeks ‘freedom’ from the inhibiting effect of the federal exclusionary rule failed to produce any meaningful alternative to the exclusionary rule in any jurisdiction” and that there is no evidence that “times have changed” post-Mapp).

The cases reporting knock-and-announce violations are legion. See, e.g., 34 Geo. L. J. Ann. Rev. Crim. Proc. 31–35 (2005) (collecting court of appeals cases); Annot., 85 A. L. R. 5th 1 (2001) (collecting state-court cases); Brief for Petitioner 16–17 (collecting federal and state cases). Indeed, these cases of reported violations seem sufficiently frequent and serious as to indicate “a widespread pattern.” Ante, at 2 (Kennedy, J., concurring in part and concurring in judgment).Yet the majority, like Michigan and the United States, has failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation. Even Michigan concedes that, “in cases like the present one … , damages may be virtually non-existent.” Brief for Respondent 35, n. 66; And Michigan’s amici further concede that civil immunities prevent tort law from being an effective substitute for the exclusionary rule at this time. Brief for Criminal Justice Legal Foundation 10; see also Hope v. Pelzer, 536 U. S. 730, 739 (2002) (difficulties of overcoming qualified immunity defenses).

As Justice Stewart, the author of a number of significant Fourth Amendment opinions, explained, the deterrent effect of damage actions “can hardly be said to be great,” as such actions are “expensive, time-consuming, not readily available, and rarely successful.” Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1388 (1983). The upshot is that the need for deterrence—the critical factor driving this Court’s Fourth Amendment cases for close to a century—argues with at least comparable strength for evidentiary exclusion here.

To argue, as the majority does, that new remedies, such as 42 U. S. C. §1983 actions or better trained police, make suppression unnecessary is to argue that Wolf, not Mapp, is now the law. (The Court recently rejected a similar argument in Dickerson v. United States, 530 U. S. 428, 441–442 (2000) .) To argue that there may be few civil suits because violations may produce nothing “more than nominal injury” is to confirm, not to deny, the inability of civil suits to deter violations. See ante, at 11. And to argue without evidence (and despite myriad reported cases of violations, no reported case of civil damages, and Michigan’s concession of their nonexistence) that civil suits may provide deterrence because claims may “have been settled” is, perhaps, to search in desperation for an argument. See ibid. Rather, the majority, as it candidly admits, has simply “assumed” that, “[a]s far as [it] know, civil liability is an effective deterrent,” ibid., a support-free assumption that Mapp and subsequent cases make clear does not embody the Court’s normal approach to difficult questions of Fourth Amendment law.

Considering the facts mentioned above, I see no grounds to support the majorty's claim.

The would-have/could-have thing is covered here (last sentence is clearest): So you are right that the dissenters do not take into account whether or not the evidence would have been found had the search been conducted legally. They seem to agree that it would have, but simply say it was not relevant that it would have.

Please compare what you said above to what you said directly after:

So this may just have to be an agree-to-disagree issue: I agree with the majority that it matters that the evidence would have been found had the police waited another 20 seconds.

You can't agree-to-disagree here as the issue is not in disagreement.

There is a portion of the dissenting opinion relevant to what you were saying about doctor-patient confidentiality: You still haven't clarified what your fear was, but it seemed like you were worried about evidence derived from information gained via a violation of doctor-patient confidentiality. The above ruling clearly makes such evidence inadmissable, and this ruling doesn't change that.

Have you not read the concluding paragraph from the dissent?

There may be instances in the law where text or history or tradition leaves room for a judicial decision that rests upon little more than an unvarnished judicial instinct. But this is not one of them. Rather, our Fourth Amendment traditions place high value upon protecting privacy in the home. They emphasize the need to assure that its constitutional protections are effective, lest the Amendment ‘sound the word of promise to the ear but break it to the hope.’ They include an exclusionary principle, which since Weeks has formed the centerpiece of the criminal law’s effort to ensure the practical reality of those promises. That is why the Court should assure itself that any departure from that principle is firmly grounded in logic, in history, in precedent, and in empirical fact. It has not done so. That is why, with respect, I dissent.

 

[Skyhunter]

Originally Posted by Skyhunter
I get the feeling from your posts that you would opt for the S.W.A.T. method more often than I.

I'm sure I would.

I will just leave it at where we agree and not derail the thread into tort reform.

I do admire the way you tied tort reform into the thread with your post.