Posted on 06/22/2006 11:48:11 AM PDT by JTN
Last week, the Supreme Court ruled in its 5-4 decision in the case of Hudson v. Michigan that when police conduct an illegal, no-knock raid, any evidence they seize in the raid can still be used against the suspect at trial, even though the raid was conducted illegally.
I’ve spent the last year researching these types of volatile, highly-confrontational, paramilitary raids for a forthcoming report for the Cato Institute. The decision in Hudson is almost certain to lead to more illegal no-knock raids, more mistaken raids on innocent people, and more unnecessary deaths, both of civilians and of police officers.
Experts on both sides of the ruling have debated the issue for a week now. I’d like to make another point. The Supreme Court split on this case, right down the middle. The four most liberal justices voted in favor of the defendant, while the five most conservative justices voted in favor of the police.
The Court’s "swing voter," Justice Kennedy, filed a middling concurrence that sided with the conservatives, but warned them not to take their line of argument any further, or they’d lose his vote. But the majority opinion in this case, written by Anthony Scalia, was not actually all that conservative. Here’s why:
(Excerpt) Read more at foxnews.com ...
Ping
Radley is the conservative conscious.
The most puzzling part of Scalia's opinion comes in a passage where he states that over the last half century, police have become more professional, and more likely to observe and respect our civil liberties. Therefore, according to Scalia, punishing police officers who break the law shouldn't be of much concern.Today, they're less likely to break the law, and more likely to address and correct those who do internally. I don't happen to agree (neither, apparently, does at least one of the sources he cites for this passage, who has since said Scalia misinterpreted his work).
But let's assume Scalia is right. What he's saying, then, is that things have changed. Police have become better trained and better educated. They are less violent and more cognizant of civil liberties. Therefore, we ought to interpret the Constitution differently – in this case removing the remedy of excluding evidence for search violations – to reflect those changes.
This is the very "living, breathing Constitution" argument the left often makes, and that usually drives conservatives batty. It's an argument that is inconsistent with the originalism or "strict constructionism" conservatives claim to embrace.
"The most puzzling part of Scalia's opinion comes in a passage where he states that over the last half century, police have become more professional, and more likely to observe and respect our civil liberties."
Now they will become less so again. Scalia is one odd character, criticizing liberals for their fantasies about how the world works while reveling in his own.
The "exclusionary rule" isn't based upon the Constitution.
revealing the SC's greatest weakness....Anthony Kennedy is as big a flip-flopper as Sen. Kerry!
Exactly. Balko spoke to the source he discussed in the article and reported on it here.
I just spoke with Prof. Sam Walker, one of the most respected criminologists in the country, and an expert on police tactics and procedures. Justice Scalia cites Walker in his opinion in Hudson, quoting him directly on page 12:
There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taiming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).Scalia preceded the Walker cite with this thesis sentence:
Another development over the past half-century that deters civil rights violations is the increasing professionalismof police forces, including a new emphasis on internal discipline.Walker tells me he learned that Scalia had cited his work, "to my horror."
Walker adds, "Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away."
Walker says poltical leadership, internal procedures, media oversight and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important too, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.
So they can do as they please and there's no consequences.
The exclusionary rule is the only practical way of enforcing the "knock and announce" rule, which is.
Scalia is an activist social conservative.
While generally aligned with a true conservative, they are not the same thing.
Just for example, Scalia is the type that would probably OK states banning the sale of condoms to married people because, in his view, such morality can and should be legislated.
Yep. This is kind of like Saddam Hussein's lawyer arguing that he should be granted clemency because he hasn't abused the Iraqi people at all for the past three years.
Ping
They had a WARRANT.
There is a world of difference between a no-knock raid WITH a warrant and one without a warrant,
A warrantless no-knock raid would indeed be illegal, but this was NOT an illegal raid.
#8
Thanks that makes me sound smarter! ;)
Really, Scalia's comment was so obviously dumb. Police are getting better so lets take away the laws that made them better--they are unneeded now!
Some logic.
HIs other point IIRC was that ACLU-type lawyers were ready and willing and able and presumably the threat of three years of law suits will scare LE from trampling and trashing your home.
Scalia lives in TV cop fantasyland. His warm and fuzzy words are little different in demeanor than those who were selling rampant eminent domain.
Scalia is a brilliant jurist who has become seduced by ideology beyond the far right. He once was a straight shooter on primary constitutional concerns. Now, he's a shill for the extreme who travels with Justice thomas in his hip pocket. What a shame.
The Supreme Court has ruled that nearly all "no knock" raids are illegal, warrant or no. Hudson acknowledges that rule, although in principle only.
I think he would "OK" it because it is not even discussed in the Constitution. Therefore, it would fall to the state legislature and judiciary to decide. The Supreme Court's Griswold v. Conn. decision was a classic example of judicial activism, and laid the groundwork for so many others, like Roe v. Wade.
That's an entirely different thing from saying it's OK because it's a good idea.
In some ways, Justice Scalia may be an activist, but yours was a bad example.
You lie. There are other remedies as you well know.
This article is profoundly dishonest. Radley is a liar and you are his punk.
How about a warrant no-knock raid in the wrong house? South Chelsea Lane instead of North Chelsea Lane. What happens after the startled owner reaches for his 12 gauge and finishes off a couple of the armed violent intruders?
Go read the Agitator.com
Punk.
He will probably end up on death row for defending his home, much like Cory Maye.
But apparently, what those remedies are is a secret which must never be divulged.
You are in effect claiming that there is no practical way to disincentivize illegal police searches of innocent people. You and everyone else on this thread know that this just isn't so.
Not a lawyer here, but what I've seen is that Scalia is pretty much an outcome oriented jurist.
While I generally agree with him; intellectually, that's just as bad as what the liberals do.
Nonsense. They are discussed in the decision and elsewhere. Read and learn and then post less nonsense.
There are only 2 that have the effect of restaining the illegal action. The lawsuit and having any evedence obtained as the result of the illegal action tossed.
" You lie. "
f ewe.
I think the idea is to "disincentivize illegal police searches" period.
After all, they are about enforcing THE LAW and their authority comes from THE LAW.
Ergo, to break the law to enforce it is, well, stupid.
And they have been roundly debunked. For example, had you read the article, you would have seen this:
In his opinion, Scalia argued that there are better ways to punish police who break the rule, such as suing them. But both the state of Michigan and the U.S. government both acknowledged in their briefs in the case that they couldn’t come up with a single case where such a lawsuit had been successful.You should read the article. It's a good one.
Either that or they will finish him off and then cover up the mistake. In VA they investigated a SWAT operator who stormed the home of a dentist while targeting a betting ring and killed the unarmed dentist in front of his family. The DA said too bad, the SWAT fellow had worked long hours, it was just an accident. I kid you not.
I think this ruling turns SWAT teams into DEATH SQUADS.
Correct. And the 4th amendment says nothing about knocking.
The downside of having conservatives in the Supreme Court, is that we get a little bit of nazism thrown in too.
The government has the right to kill you. Here's how it works. The government has given itself the right to break into your house at 4 AM with guns drawn, shouting like a crazy pack of wolves. You, as all humans, have the obligation to defend yourself. So you have the obligation to shoot the intruders breaking into your house to do you harm. The governent will of course shoot you and anything that moves in your house. They will not be prosecuted for this. Even if they broke into the wrong house.
I'm a libertarian who votes Republican because the alternative is too far to the left, but the right isn't too appealing either.
I don't think you've got that right. I believe the police admitted their violation of the knock and announce rule.
The only dispute before the court was whether the exclusionary rule was the proper remedy.
That is one idea. The other main idea is to apprehend criminals in order to protect the public. Both are important. Read the ruling. It discusses this.
This is nonsense. Why do "libertarians" so often spew garbage?
The Arkansas Supreme Court affirmed petitioner's conviction on appeal. The court noted that "the officers entered the home while they were identifying themselves," but it rejected petitioner's argument that "the Fourth Amendment requires officers to knock and announce prior to entering the residence." Finding "no authority for [petitioner's] theory that the knock and announce principle is required by the Fourth Amendment," the court concluded that neither Arkansas law nor the Fourth Amendment required suppression of the evidence.We granted certiorari to resolve the conflict among the lower courts as to whether the common law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. We hold that it does, and accordingly reverse and remand.
It should be a common sense issue, since I would have killed anyone breaking into my house in the middle of the night unannounced.
This guy is claiming the raids were "illegal", when in fact, they were not, even according to the Supreme Court.
Far better, in my humble opinion to recognize a civil cause of action against officer or prosecutors sponsoring the illegal search.
So the scumbag wanted the evidence thrown out.
Which is better than being the conservative unconscious.
Yes, the raids were illegal, according to the Supreme Court; indeed, even according to the State of Michigan. To quote Scalia's opinion:
Because Michigan has conceded that the entry here was a knock-and-announce violation, the only issue is whether the exclusionary rule is appropriate for such a violation.
Well said.
Of course, FR is full of people who would be happy with a police state, as, ITHO, the police don't bother law abiding people.
I became a libertarian-leaning conservative after being accused of child support for an insane woman I had never met --- DNA exonerated me --- at the tune of $4,000 or so in attorney and doctor fees. AND a PISSED OFF Mrs. MWT who believed the idiot social workers. Had to deposit money in the registry of the court in the mean time to avoid jail time for "non-support" (got that back).
Turned out daddy was in jail and the mother filled out my name on welfare forms/birth certificate because she knew I owned a company (name is on the building) and thought it might be a good thing to claim well-off daddy.
Radley is a Leftist stoodge pretending to be "Conservative" because it sells well in his market. Just another "The criminals are victims" Leftist butt clown.
Hmmmmm...I don't remember any words in the Constitution regarding the number of knocks or seconds after those knocks before police can enter.
Well rogue, because it is true.
I barely survived a DEA raid in LA while the fellows next door with the whatever the DEA was looking for escaped. They did come with guns drawn, they trashed the house, they did beat us all up and after we were secured one of the fellow managed to convince my hysterical cousin to stop crying by putting his service weapon in her mouth and cocking the hammer. You might have been impressed by how quickly they all left the house when they realized it was the wrong address.
I'm afraid this ruling is going to result in the loss of many lives.
"The exclusionary rule is a wholly ineffective way of enforcing the knock and announce rule."
Not really. It causes the police to be careful not to do it wrong, as it makes an illegal entry a fruitless waste of time.
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