Gordon Fink
Member
As some have asked, why is this a big deal? It’s no big deal at all, but it’s “no big deal” preceded by many other “no big deals” and sure to be followed by many more “no big deals.” 
~G. Fink
~G. Fink
SCOTUS: Police don't have to knock, justices say
- Thread starter Chipperman
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Sam Adams
Member
I understand the need to give the police tools to apprehend those people who are truly dangerous to society. I am very pro-police, very pro-law and order ("and" being emphasized because order without law is simply tyranny). I know that the vast majority of police are good and decent people trying to protect the rest of us from the few who would harm us, and that most of the time they are doing the right thing.
But.
Mistakes are also made. Unintentional mistakes like a miscommunication about which address to serve the warrant on, mistakes like believing an informant (including a former or soon-to-be-former spouse, some of whom are extremely vindictive, or some street punk who's out to save his own skin by giving up a name), etc. So some innocent people have their doors broken in and are terrorized or injured/killed by mistake.
There is also a tendency (at least as it appears to this observer) among most governmental agencies on all levels, including law enforcement, that everyone accused of a crime is: a) guilty and b) dangerous and just itching to hurt someone. So many warrants are served with much more force than necessary.
The average person is intimidated by this, and is also pretty much conditioned to obey anybody wearing a uniform and saying "Police - Open up!" or words to that effect. IOW, people are generally compliant.
You also have many criminals who know this and take advantage of this - they'll dress up like the police, knock on doors very aggressively and demand that the homeowner open up for "the police." The result is that the door is opened up voluntarily for a home invasion.
Many people know this, and are prepared to resist it.
Combine this fear with the attitude on the part of many in government that anyone charged is guilty and dangerous, and you have a recipe for disaster. This ruling only makes it worse - even if it is only perceived as being worse from a legal perspective. You will now have many more people out there who are afraid of a home invader masquerading as a police officer, knowing that the door could be busted down after 3 seconds. How many police and innocent civilians will die or be grievously injured because of this?
I had an incident several weeks ago...the wife and I were having a bad argument, and she decided to call 911 on me for no apparent reason (except to annoy me by having a threat to my ability to own a gun on record). I was doing NOTHING to threaten her in any way - she was actually the one yelling and carrying on, and I was purposely calm to try to defuse the situation. Anyhow, I hung up the phone as soon as she dialed. 15 minutes later, after she had settled down, there was a completely unexpected knock on the door (this, at around midnight or 12:30 AM). I didn't connect her cut-off call with the knock, and neither did she, so I grabbed my snubbie (which she very obviously approved of) and went downstairs with it in hand behind my back. As soon as I saw it was an officer, I pocketed the gun. As it turned out, the knock was made by a very polite officer who stayed on the porch until he was invited in, and the matter was settled in a few minutes with nothing happening. I shudder to think, however, what would have happened if the officer had been knocking aggressively and then broke down the door, or if he had seen my firearm - but someone probably would've gotten shot. I'd either be dead or in jail, and either his or my kids (or both) would likely be fatherless. Yeah, I know that there was no warrant involved, but that's what a mistake in address can do to me or to someone else. You see, I didn't expect the visit by the officer, anymore than someone who's served a mistaken warrant would.
Someone breaking down my door at 0'Dark :30 means "Home Invasion!" to me, no matter what the people doing so say or what they are wearing, since I don't do anything worse than going a bit faster than the posted limit, and it will result in an aggressive defense of my family, myself and my home. This ruling only makes such break-ins more likely, and can only result in more tragedies.
As for the slope we're on in this country, it is slippery and steep - and this decision just added an oil slick on top of the Teflon surface of that slope.
But.
Mistakes are also made. Unintentional mistakes like a miscommunication about which address to serve the warrant on, mistakes like believing an informant (including a former or soon-to-be-former spouse, some of whom are extremely vindictive, or some street punk who's out to save his own skin by giving up a name), etc. So some innocent people have their doors broken in and are terrorized or injured/killed by mistake.
There is also a tendency (at least as it appears to this observer) among most governmental agencies on all levels, including law enforcement, that everyone accused of a crime is: a) guilty and b) dangerous and just itching to hurt someone. So many warrants are served with much more force than necessary.
The average person is intimidated by this, and is also pretty much conditioned to obey anybody wearing a uniform and saying "Police - Open up!" or words to that effect. IOW, people are generally compliant.
You also have many criminals who know this and take advantage of this - they'll dress up like the police, knock on doors very aggressively and demand that the homeowner open up for "the police." The result is that the door is opened up voluntarily for a home invasion.
Many people know this, and are prepared to resist it.
Combine this fear with the attitude on the part of many in government that anyone charged is guilty and dangerous, and you have a recipe for disaster. This ruling only makes it worse - even if it is only perceived as being worse from a legal perspective. You will now have many more people out there who are afraid of a home invader masquerading as a police officer, knowing that the door could be busted down after 3 seconds. How many police and innocent civilians will die or be grievously injured because of this?
I had an incident several weeks ago...the wife and I were having a bad argument, and she decided to call 911 on me for no apparent reason (except to annoy me by having a threat to my ability to own a gun on record). I was doing NOTHING to threaten her in any way - she was actually the one yelling and carrying on, and I was purposely calm to try to defuse the situation. Anyhow, I hung up the phone as soon as she dialed. 15 minutes later, after she had settled down, there was a completely unexpected knock on the door (this, at around midnight or 12:30 AM). I didn't connect her cut-off call with the knock, and neither did she, so I grabbed my snubbie (which she very obviously approved of) and went downstairs with it in hand behind my back. As soon as I saw it was an officer, I pocketed the gun. As it turned out, the knock was made by a very polite officer who stayed on the porch until he was invited in, and the matter was settled in a few minutes with nothing happening. I shudder to think, however, what would have happened if the officer had been knocking aggressively and then broke down the door, or if he had seen my firearm - but someone probably would've gotten shot. I'd either be dead or in jail, and either his or my kids (or both) would likely be fatherless. Yeah, I know that there was no warrant involved, but that's what a mistake in address can do to me or to someone else. You see, I didn't expect the visit by the officer, anymore than someone who's served a mistaken warrant would.
Someone breaking down my door at 0'Dark :30 means "Home Invasion!" to me, no matter what the people doing so say or what they are wearing, since I don't do anything worse than going a bit faster than the posted limit, and it will result in an aggressive defense of my family, myself and my home. This ruling only makes such break-ins more likely, and can only result in more tragedies.
As for the slope we're on in this country, it is slippery and steep - and this decision just added an oil slick on top of the Teflon surface of that slope.
I just got through reading the entire ruling. The impact is not the end of the world as I'd originally believed based on news reports and postings here but IMO it is still pretty bad.
Two things about the ruling struck me the most. The exlusionary rule is probably dead and the reasons the court gave for why.
The court repeatedly referenced why the knock and announce (K&A) rule exists and its importance. Why the rule - it prevents potential violence to all parties involved in a search warrant, it prevents potential property damage and it maintains as much as possible the dignity of the residents of the domicile being searched.
In the case in question since none of the factors were extant that the K&A rule exists for the court believed it had to weigh the benefit to society of either letting the drug dealer go or essentially severely limiting the scope of the exclusionary rule.
The court ruled on the side of government - err - society. The cops erred but in the courts opinion the benefit to society of not punishing that error far outweighed excluding the evidence acquired and thus releasing a dangerous criminal. The result As the court pointed out is that the disincentives for violating the K&A rule have been attrited and the only remedy when the rule is violated by agents of the state is a civil one. The current crop of justices seem to be able to live with that.
IMO what they've forgotten is that Freedom isn't Free. There is always a price to pay and sometimes that price is steep - even to the point of allowing the guilty to go free if that is what it takes to assure the rights of others.
The power of the state grew just a bit more yesterday. Bit by bit the rights our forefathers died to secure are being chipped away. I for one am glad that I won't be around on the day that we have no rights left. I cry for my grandchildren though because they will live to see that day come.
Two things about the ruling struck me the most. The exlusionary rule is probably dead and the reasons the court gave for why.
The court repeatedly referenced why the knock and announce (K&A) rule exists and its importance. Why the rule - it prevents potential violence to all parties involved in a search warrant, it prevents potential property damage and it maintains as much as possible the dignity of the residents of the domicile being searched.
In the case in question since none of the factors were extant that the K&A rule exists for the court believed it had to weigh the benefit to society of either letting the drug dealer go or essentially severely limiting the scope of the exclusionary rule.
The court ruled on the side of government - err - society. The cops erred but in the courts opinion the benefit to society of not punishing that error far outweighed excluding the evidence acquired and thus releasing a dangerous criminal. The result As the court pointed out is that the disincentives for violating the K&A rule have been attrited and the only remedy when the rule is violated by agents of the state is a civil one. The current crop of justices seem to be able to live with that.
IMO what they've forgotten is that Freedom isn't Free. There is always a price to pay and sometimes that price is steep - even to the point of allowing the guilty to go free if that is what it takes to assure the rights of others.
The power of the state grew just a bit more yesterday. Bit by bit the rights our forefathers died to secure are being chipped away. I for one am glad that I won't be around on the day that we have no rights left. I cry for my grandchildren though because they will live to see that day come.
GTSteve03
Member
So Jeff, when are you going to get around to replying to my original post regarding the 1995 SCOTUS decision?
GTSteve03 said;
This decision did not in any way shape or form overturn that 1995 decision. Nowhere does it say that you can do an no-nock anytime that you wish. Your question is irrelevant to this discussion.
Have you read the decision? I qualified my original post on this by saying I was basing my take on the decision on news reports, not the actual decision.
You are clearly still basing your opinion on news reports and your own preconceived notions of how things are.
Read the decision and then point me to the part that overturns the 1995 ruling you mention. I'm failing to see it.
cookekdjr,
I must be missing something, but I can't see how anything in this decision is going to change how I do my job. Please explain what you think is going to change.
Jeff
This decision did not in any way shape or form overturn that 1995 decision. Nowhere does it say that you can do an no-nock anytime that you wish. Your question is irrelevant to this discussion.
Have you read the decision? I qualified my original post on this by saying I was basing my take on the decision on news reports, not the actual decision.
You are clearly still basing your opinion on news reports and your own preconceived notions of how things are.
Read the decision and then point me to the part that overturns the 1995 ruling you mention. I'm failing to see it.
cookekdjr,
I must be missing something, but I can't see how anything in this decision is going to change how I do my job. Please explain what you think is going to change.
Jeff
NHBB
Member
what I find highly disturbing is the increasing rate of home invasions under the guise of law enforcement leading to tragic outcomes. this is like a license for criminals to dress up and get in the house nice and easy under the pretense of being LEO's.
NineseveN
member
Jeff White said:
According to what I read (and it could be wrong because it's been a long day, so long in fact that I am going to basically copy and paste what I posted elsewhere as I think it gets the job done).
What it does specifically is it kills the exclusionary rule on these types of illegal searches. Basically, it turns any warrant into a "no-knock" warrant if evidence of a crime is discovered. Normally, if all provisions in the warrant (i.e. the police must knock and announce before entry) are not met, the evidence obtained can be (and should be) suppressed because the search would have been prohibited by the 4th Amendment (police must follow the warrant to the letter and can only act within the scope of the warrant, period). In the instance of knock and announce versus no-knock and announce, it doesn't matter if the search is illegal, any evidence discovered is admissible so this basically removes the barriers and protections that were in place via the exclusionary rule.
That doesn't sound like a big deal, but it is. The exclusionary rule was the only mechanism we had to protect us (we the people) from illegal searches, now that there is no penalty for such abuses or mistakes; the common citizen is at an increased risk. Civil lawsuits? Yeah, who pays for those? You're going to sue the components of a system that is going to represent itself within the system that it operates? Good luck...it's also kind of hard to sue if you’re deceased.
<Bashing removed by Art>
Otherguy Overby
member
Ride along?
So, what county in Arkansas are you in?
If it's close to Baxter county, I'll try a ride along.
Can I carry my concealed weapon?
So, what county in Arkansas are you in?
If it's close to Baxter county, I'll try a ride along.
Can I carry my concealed weapon?
cookekdjr,
I must be missing something, but I can't see how anything in this decision is going to change how I do my job. Please explain what you think is going to change.
Jeff
Jeff, some LEO's in my jurisdiction are already saying that if they don't follow the confines of the warrant provisions, its no big deal, because "nothings going to get excluded anyway".
This may not change how you do your job, but it will affect others. All I'm saying is, if there are no consequences for violating the terms of a search warrant, then many officers will violate the terms. Its human nature.
I must be missing something, but I can't see how anything in this decision is going to change how I do my job. Please explain what you think is going to change.
Jeff
Jeff, some LEO's in my jurisdiction are already saying that if they don't follow the confines of the warrant provisions, its no big deal, because "nothings going to get excluded anyway".
This may not change how you do your job, but it will affect others. All I'm saying is, if there are no consequences for violating the terms of a search warrant, then many officers will violate the terms. Its human nature.
NHBB said,
Got some facts to back that assertion up, or are just thinking they are up because of what you read in the forums?
How about an example of one of those home invasions that wasn't done by rival drug dealers on their competition?
NineseveN said,
Have you ever actually seen a search warrant? Do you know what is printed on one? I have never seen a no knock warrant, that's how rare they are around here. But I have yet to see one that spells out the way we must approach the residence either.
I'm sorry but I don't see this as the end of the exclusionary rule.
Jeff
Got some facts to back that assertion up, or are just thinking they are up because of what you read in the forums?
How about an example of one of those home invasions that wasn't done by rival drug dealers on their competition?
NineseveN said,
Have you ever actually seen a search warrant? Do you know what is printed on one? I have never seen a no knock warrant, that's how rare they are around here. But I have yet to see one that spells out the way we must approach the residence either.
I'm sorry but I don't see this as the end of the exclusionary rule.
Jeff
NineseveN
member
Art said:
You've got to be kidding me. Art, I would have thought you to have a bit more class than that. Your comments make it look like I was bashing Jeff or someone personally, my post as it was contained no attacks, no vulgarities and no insults. I posted some hypothetical dialogue between two hypothetical cops, conversations that do occur within law enforcement. There was a good cop and a not so good cop; though I'd think of the second fellow as more of a stereotypical cop that finds it hard to resist the urge to toss all the useless PC crap aside and get the job done. The second fellow's type may not be cast in the best of light, but in some instances they're absolutely spot on, some of the hoops LEO's have to jump through are patently absurd, inefficient and dangerous, and some of the hoops are necessary for the preservation of the rights and the safety of the citizen. I'm very disappointed not only at the fact that you would take something to such an extreme as to delete it without explaining to me why and what about it would be construed as bashing, but also that you would label my post as contained bashing where it clearly did not. Was the comment required for everyone else’s enjoyment of the thread?
However, having said that, I'll repost what I had in another way, containing the exact same message except not in the form of dialogue because it is very valid observation pertaining to this discussion. If you feel the need to label that bashing as well and delete the post, then THR has become a very sad thing indeed. I meant no offense by what I had posted.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
My understanding of this ruling is that it basically says that the benefits to society of admitting evidence gained from improper searches and seizures into trial outweigh the necessity of the suspect’s rights and liberty via the exclusionary rule.
Jeff White asked what the big deal was (paraphrasing of course), the big deal is that there is really nothing to stop a law enforcement officer or agency from taking the stance that they already know the suspect is guilty (else why would they be there), the suspect might also be dangerous, the suspect might also have time to dispose of important evidence so that for their safety and for the sake of preserving the evidence, they need to move right away and do away with the knock and announce. Their protection in doing this is the ruling we’re discussing because, as long as they find something, what that warrant says doesn’t matter; the benefits to society of admitting evidence gained from improper searches and seizures into trial outweigh the necessity of the suspect’s rights and liberty via the exclusionary rule.
My concern is I’m wondering how long until this moves on into other realms of the exclusionary rule or probable cause? Is there now wiggle room for something like profiling (i.e. suspect looks like a gangbanger or drug dealer) turning into a stop and search without a real demonstration of probable cause? Again, the precedent can be set with a single case using this ruling as a foundation that as long as they find something, the benefits to society of admitting evidence gained from improper searches and seizures into trial outweigh the necessity of the suspect’s rights and liberty via the exclusionary rule.
And then what about confessions? What is to stop an agency or individual from taking the stance that they know the suspect is guilty of murder or rape, and that they need to ‘tune them up’ in order to extract a confession or critical information (i.e. where a missing victim is) because again, the benefits to society of admitting evidence gained from improper searches and seizures into trial outweigh the necessity of the suspect’s rights and liberty via the exclusionary rule. So as long as they find evidence of a crime, the method with which they obtain the evidence is irrelevant.
I realize that whether or not they knock and announce is a far cry from beating a suspect, but I submit that it is so only in severity, it’s still the same mechanism being employed and the same reasoning behind it (unless you suggest that cops used to beat suspects for fun, which I disagree with)…law enforcement officials, agents and agencies do cut corners and bend the boundaries a little bit when they feel they have to in order to do the job in critical situations. That’s a fact of life and a fact of every single profession.
So with the reasoning of: the benefits to society of admitting evidence gained from improper searches and seizures into trial outweigh the necessity of the suspect’s rights, liberty via the exclusionary rule, how far off is something much worse? Because that’s the larger precedent being set into motion with this ruling. You can't fault the individual LEO's, they'd just be acting within the scope of the law and using all of the tools at their disposal, so what's to stop them?
NineseveN
member
Jeff, I'll respond to you real quick, but I don't want to get into a back and forth discussion, neither of us likely have the time. Just to clarify:
Yes I have, many (search warrants), though not as many as you have I presume. There are different warrants or provisions for both standard (knock) and no-knock searches. If the warrant does not allow a no-knock entry, then one could not be performed unless mitigating circumstances were present and apparent (i.e. gunshots form inside the building etc…though at that point it wouldn’t be considered executing a warrant I suppose). If there isn’t a difference that is stipulated between the two, then there really is no such thing as a warrant that allows a no-knock to occur or not to occur as all warrants would be the same in that scope. This does not seem to be the case.
The comment that you are responding to was not only in reference to knock VS no-knock. The police must obey the scope of the warrant whatever it specifies (i.e. locations to be searched, things to be searched etc…).
Jeff White said:
Yes I have, many (search warrants), though not as many as you have I presume. There are different warrants or provisions for both standard (knock) and no-knock searches. If the warrant does not allow a no-knock entry, then one could not be performed unless mitigating circumstances were present and apparent (i.e. gunshots form inside the building etc…though at that point it wouldn’t be considered executing a warrant I suppose). If there isn’t a difference that is stipulated between the two, then there really is no such thing as a warrant that allows a no-knock to occur or not to occur as all warrants would be the same in that scope. This does not seem to be the case.
The comment that you are responding to was not only in reference to knock VS no-knock. The police must obey the scope of the warrant whatever it specifies (i.e. locations to be searched, things to be searched etc…).
Northslope Nimrod
Member
No Knock Warrants v. Exclusionary Rule
This case is not really one of expanding No Knock Warrants. This case is "one of remedy," as stated in the opinion.
The intent of the court created "Exclusionary Rule" was to deter illegal behavior by officers. If that deterence is not sufficiently present, should the exclusionary rule still apply? That was the question before the Court. They decided "no."
Officers must still seek "No Knock Search Warrants" by using the usual justifications (safety, destruction of evidence, dangerous criminal). If they don't obey the knock & announce rule, the victim/suspect may sue under a 1983 Civil Rights action for damages. BUT, if he had just murdered the neighbor girl whom he had kidnapped and the bloody knife was still on the counter (her body disposed of long ago), that bloody knife would be admissible and he would be convicted of the murder. The exclusionary rule is too harsh of a remedy in many situations. It would not be "justice" to the victim or her family if the murderer walks simply because an officer didn't wait long enough after knocking. Suspects have their remedy....it just won't be a "get out of jail free card" remedy.
Prosecutors will still advise cops to use the same practice as before.
NO KNOCK WARRANTS: They are not RARE. They are done all the time. Every week in this state a No Knock warrant will be served. If they are distributing drugs....it will likely be a No Knock Warrant and may well be served at night.
This case is not really one of expanding No Knock Warrants. This case is "one of remedy," as stated in the opinion.
The intent of the court created "Exclusionary Rule" was to deter illegal behavior by officers. If that deterence is not sufficiently present, should the exclusionary rule still apply? That was the question before the Court. They decided "no."
Officers must still seek "No Knock Search Warrants" by using the usual justifications (safety, destruction of evidence, dangerous criminal). If they don't obey the knock & announce rule, the victim/suspect may sue under a 1983 Civil Rights action for damages. BUT, if he had just murdered the neighbor girl whom he had kidnapped and the bloody knife was still on the counter (her body disposed of long ago), that bloody knife would be admissible and he would be convicted of the murder. The exclusionary rule is too harsh of a remedy in many situations. It would not be "justice" to the victim or her family if the murderer walks simply because an officer didn't wait long enough after knocking. Suspects have their remedy....it just won't be a "get out of jail free card" remedy.
Prosecutors will still advise cops to use the same practice as before.
NO KNOCK WARRANTS: They are not RARE. They are done all the time. Every week in this state a No Knock warrant will be served. If they are distributing drugs....it will likely be a No Knock Warrant and may well be served at night.
cookekdjr,
As far as I'm concerned those officers need to find another line of work. I November of 2003 the Illinois State Supreme Court made a couple of decisions that had some pretty serious effects on how we were doing our job. One required us to be able to articulate probable cause if we asked for consent to search during a traffic stop. Another required us to have a reasonable belief that other occupants of a vehicle besides the driver were involved in criminal activity befre checking them through the computer system. In God we trust, all others we run through NCIC was no longer legal in Illinois. The third decision greatly limited the circumstances under which we could conduct a K9 sniff on a vehicle stop. That decision has since been ruled too restrictive by the USSC and sent back to the state and the State Supreme Court has since reversed itself bringing the use of K9s back to what it was.
Naturally there was a lot of discussion among the officers when these decisions were announced. I even lost a friend on antoher department after he told me that the state supreme court be damned, he wasn't changing the way he worked and I told him he needed to find another job. But after the initial wailing and knashing of teeth and some very nasty comments about the judiciary, none of which would be able to be posted here, everyone learned to live with the new rules.
I don't agree with the concept of not worrying about making cases and getting drugs and guns off the street. I know that in many urban areas there are units that do just that. Yet no one, not the libertarians and anarchists here at THR, the ACLU or anyone else seems to care about that. I suppose they think it's what has to be done to keep some sort of order in the inner city.
My personal barometer of success is not having to go to court. I want the defense attorney to look at what I did and tell his client there isn't any wiggle room here, better take the plea deal the states attorney is offering you.
Jeff
As far as I'm concerned those officers need to find another line of work. I November of 2003 the Illinois State Supreme Court made a couple of decisions that had some pretty serious effects on how we were doing our job. One required us to be able to articulate probable cause if we asked for consent to search during a traffic stop. Another required us to have a reasonable belief that other occupants of a vehicle besides the driver were involved in criminal activity befre checking them through the computer system. In God we trust, all others we run through NCIC was no longer legal in Illinois. The third decision greatly limited the circumstances under which we could conduct a K9 sniff on a vehicle stop. That decision has since been ruled too restrictive by the USSC and sent back to the state and the State Supreme Court has since reversed itself bringing the use of K9s back to what it was.
Naturally there was a lot of discussion among the officers when these decisions were announced. I even lost a friend on antoher department after he told me that the state supreme court be damned, he wasn't changing the way he worked and I told him he needed to find another job. But after the initial wailing and knashing of teeth and some very nasty comments about the judiciary, none of which would be able to be posted here, everyone learned to live with the new rules.
I don't agree with the concept of not worrying about making cases and getting drugs and guns off the street. I know that in many urban areas there are units that do just that. Yet no one, not the libertarians and anarchists here at THR, the ACLU or anyone else seems to care about that. I suppose they think it's what has to be done to keep some sort of order in the inner city.
My personal barometer of success is not having to go to court. I want the defense attorney to look at what I did and tell his client there isn't any wiggle room here, better take the plea deal the states attorney is offering you.
Jeff
Bartholomew Roberts
Member
Key bits from the majority opinion:
The important opinion is Kennedy though because he is the swing vote. Kennedy basically says that not waiting is not a proximate cause of later evidence discovery. He gives the following example: "When a violation results from want of a 20 second pause; but an ensuing lawful search lasting five hours discloses evidence of criminality, the failure to wait at the door cannot properly be described as having caused the discovery of evidence."
Kennedy also implies that he will switch votes if widespread violation becomes a problem - and he certainly left a lot of room in his opinion to do that and is pretty notorious for switching already.
Both Kennedy and majority reinforce that knock and announce is still the law of the land though...
The minority pretty much describes what the law had been up to this point and basically argues that without exclusion of such evidence, police will not follow the law - and they make some good points throughout their 23 pages of dissent.
Seems to me the Court will be revisiting this issue again soon.
J. Scalia said:
The important opinion is Kennedy though because he is the swing vote. Kennedy basically says that not waiting is not a proximate cause of later evidence discovery. He gives the following example: "When a violation results from want of a 20 second pause; but an ensuing lawful search lasting five hours discloses evidence of criminality, the failure to wait at the door cannot properly be described as having caused the discovery of evidence."
Kennedy also implies that he will switch votes if widespread violation becomes a problem - and he certainly left a lot of room in his opinion to do that and is pretty notorious for switching already.
Both Kennedy and majority reinforce that knock and announce is still the law of the land though...
The minority pretty much describes what the law had been up to this point and basically argues that without exclusion of such evidence, police will not follow the law - and they make some good points throughout their 23 pages of dissent.
Seems to me the Court will be revisiting this issue again soon.
Nineseven: The exclusionary rule was the only mechanism we had to protect us (we the people) from illegal searches, now that there is no penalty for such abuses or mistakes; the common citizen is at an increased risk. Civil lawsuits? Yeah, who pays for those? You're going to sue the components of a system that is going to represent itself within the system that it operates? Good luck...it's also kind of hard to sue if you’re deceased.
I wouldn't be so quick to bash civil remedies, like a 1986 action or a civil rights violation for violations by law enforcement of your rights. One of the original complaints about the whole idea of the exclusionary rule was that it did little to punish bad cops while rewarding bad people.
You may think that police officers don't care if they are sued in federal court, or investigated for criminal violations of civil rights, but I can assure you that they do. In my experience, the reason a lot of these sensational news reports of police misconduct do not result in these type of actions is that often the complaints are just not true, or if the facts are true, are not actually recognized civil rights violations, regardless of what the accuser's opinon is.
One group of persons does file 1986 actions on a regular basis, however. That group is inmates, who with little else to do, and a lengthy statute of limitations, often decide one day to file a suit instead of watching TV.
The bottom line is that I don't have much sympathy for people who complain about our criminal justice system, but who do not avail themselves of it.
I wouldn't be so quick to bash civil remedies, like a 1986 action or a civil rights violation for violations by law enforcement of your rights. One of the original complaints about the whole idea of the exclusionary rule was that it did little to punish bad cops while rewarding bad people.
You may think that police officers don't care if they are sued in federal court, or investigated for criminal violations of civil rights, but I can assure you that they do. In my experience, the reason a lot of these sensational news reports of police misconduct do not result in these type of actions is that often the complaints are just not true, or if the facts are true, are not actually recognized civil rights violations, regardless of what the accuser's opinon is.
One group of persons does file 1986 actions on a regular basis, however. That group is inmates, who with little else to do, and a lengthy statute of limitations, often decide one day to file a suit instead of watching TV.
The bottom line is that I don't have much sympathy for people who complain about our criminal justice system, but who do not avail themselves of it.
Bart,
I think what Kennedy had to say here is pretty relevant:
We are talking about a mistake that amounted to not waiting for 20 more seconds to meet the standard of knock and announce. There is almost never more then a 30 second wait when serving that type of a warrant. The law doesn't require a wait any longer then that. And that's why I'm fairly certain that this ruling isn't going to change anything. In practical terms entering after announcing after 5 seconds v. entering after announcing and waiting 25 - 30 seconds doesn't mean much. Unless the suspect has the records you seek in your warrant on flash paper or he has his dope all set up to flush he's not going to be able to destroy it in that amount of time.
The officers did not do a no-knock raid, they essentially did a knock and announce without waiting long enough before entering. So I don't see them changing their tactics because of this ruling. It really gives you no more advantage over the badguy then waiting the full 25-30 seconds. Why risk an expensive civil suit or criminal prosecution for violating someone's civil rights just to get a 20 second headstart? If you're that concerned that the evidence will be destroyed if you don't get that 20 seconds, apply for a no knock warrant.
I also don't see this big hole in the exclusionary rule. Lower courts have already admitted evidence that would have been legally found and seized in spite of misconduct or procedural error.
Jeff
I think what Kennedy had to say here is pretty relevant:
We are talking about a mistake that amounted to not waiting for 20 more seconds to meet the standard of knock and announce. There is almost never more then a 30 second wait when serving that type of a warrant. The law doesn't require a wait any longer then that. And that's why I'm fairly certain that this ruling isn't going to change anything. In practical terms entering after announcing after 5 seconds v. entering after announcing and waiting 25 - 30 seconds doesn't mean much. Unless the suspect has the records you seek in your warrant on flash paper or he has his dope all set up to flush he's not going to be able to destroy it in that amount of time.
The officers did not do a no-knock raid, they essentially did a knock and announce without waiting long enough before entering. So I don't see them changing their tactics because of this ruling. It really gives you no more advantage over the badguy then waiting the full 25-30 seconds. Why risk an expensive civil suit or criminal prosecution for violating someone's civil rights just to get a 20 second headstart? If you're that concerned that the evidence will be destroyed if you don't get that 20 seconds, apply for a no knock warrant.
I also don't see this big hole in the exclusionary rule. Lower courts have already admitted evidence that would have been legally found and seized in spite of misconduct or procedural error.
Jeff
TallPine
Member
How many of ya'll can answer your door in 20 seconds, especially at night?
Saying that "not much has changed" doesn't really make me feel any better.
Saying that "not much has changed" doesn't really make me feel any better.
Bartholomew Roberts
Member
This is just off the cuff pretty much, but I think the Kennedy decision is more important in other ways too... the majority opinion (the one the newspapers reported) basically says that excluding evidence doesn't serve the purposes of the knock & announce rule and so they aren't going to do it.
Kennedy seems to be saying something different. He seems to be saying that since the lack of waiting made no difference in the evidence discovered, there is no reason for the evidence to be excluded. Since he was the fifth vote (and the swing vote yet again), his opinion has more force than the majority opinion.
It seems to me that the next likely case would be one where the wait did make the difference in the evidence discovered.
Anyone else notice that Michigan made no attempt at all to try and argue that the 3-5 seconds was reasonable under the circumstances? Was there law already on point that makes this an obvious loser argument or was Michigan looking to challenge the exclusionary rule all along?
Kennedy seems to be saying something different. He seems to be saying that since the lack of waiting made no difference in the evidence discovered, there is no reason for the evidence to be excluded. Since he was the fifth vote (and the swing vote yet again), his opinion has more force than the majority opinion.
It seems to me that the next likely case would be one where the wait did make the difference in the evidence discovered.
Anyone else notice that Michigan made no attempt at all to try and argue that the 3-5 seconds was reasonable under the circumstances? Was there law already on point that makes this an obvious loser argument or was Michigan looking to challenge the exclusionary rule all along?
Bart,
I really can't think of a case where not waiting the required time on a knock and announce would make any difference then if you had waited. The time you are required to wait is pretty short.
The vast majority of search warrants that aren't drug related are served by officers knocking on the door, waiting an answer and presenting the occupants with the warrant. TV, the movies and the news media have given the public the false impression that everytime a warrant is issued for any reason that a 20 man SWAT team kicks in the doors. Yes some departments use their SWAT teams to serve a lot of warrants, but in most cases where that is done the suspect either has to be believed to be dangerous or there is a great likelyhood that if the building wasn't seized quickly and efficiently the evidence would be destroyed.
SWAT teams cost a lot of money, and since most departments don't have the resources to have officers assigned to that duty full time, it is usually very hard on the overtime budget. That means sometimes they arent used when perhaps they should have been.
There are a great number of warrants issued where the residence or vehicle to be searched has already been seized. Usually that scenario comes down something like this. Officer is dispatched to the location on an unrelated call. Officer notices strong odor of anhydrous ammonia and observes a pile of trash containing stripped lithium batteries and an empty Coleman stove fuel can and coffee filters. There is now probable cause to believe there is a meth lab at that location. Everyone present is taken into custody (just detained at this point) a call is made to the states attorney who fills out the warrant application and gets a judge to sign it. Then the property is searched. The same thing happens when a K9 hits on a vehicle.
I just don't see this decision changing the way we do things now.
Jeff
I really can't think of a case where not waiting the required time on a knock and announce would make any difference then if you had waited. The time you are required to wait is pretty short.
The vast majority of search warrants that aren't drug related are served by officers knocking on the door, waiting an answer and presenting the occupants with the warrant. TV, the movies and the news media have given the public the false impression that everytime a warrant is issued for any reason that a 20 man SWAT team kicks in the doors. Yes some departments use their SWAT teams to serve a lot of warrants, but in most cases where that is done the suspect either has to be believed to be dangerous or there is a great likelyhood that if the building wasn't seized quickly and efficiently the evidence would be destroyed.
SWAT teams cost a lot of money, and since most departments don't have the resources to have officers assigned to that duty full time, it is usually very hard on the overtime budget. That means sometimes they arent used when perhaps they should have been.
There are a great number of warrants issued where the residence or vehicle to be searched has already been seized. Usually that scenario comes down something like this. Officer is dispatched to the location on an unrelated call. Officer notices strong odor of anhydrous ammonia and observes a pile of trash containing stripped lithium batteries and an empty Coleman stove fuel can and coffee filters. There is now probable cause to believe there is a meth lab at that location. Everyone present is taken into custody (just detained at this point) a call is made to the states attorney who fills out the warrant application and gets a judge to sign it. Then the property is searched. The same thing happens when a K9 hits on a vehicle.
I just don't see this decision changing the way we do things now.
Jeff
Biker,
As I've been trying to say, I don't believe this will open the door to further abuse. I don't believe that a hole you could drive a train through has been blown in the exclusionary rule.
I really believe that if the officers in this case had not announced themselves and simply turned the knock and announce warrant into a no-knock the supremes never would have seen the case because every lower court would have correctly ruled that the evidence was inadmissible.
I think Kennedy's brief pretty much says it all with the statement about 20 seconds being the difference between the entry being good or bad. Bart is right in that we'll have to see how the lower courts rule on a case where the 20 second difference would have kept the evidence from being legally seized anyway. I just don't think that's going to happen.
There have been proposals for legislation to pull the teeth from the exclusionary rule in every republican platform since the 1980s. But the legislation has never gone anywhere in congress. If the exclusionary rule has been gutted, (and I don't believe it has) then the conservatives will have done the same thing they accused the liberals of doing for years, legislating from the bench what they couldn't achieve in congress.
Jeff
As I've been trying to say, I don't believe this will open the door to further abuse. I don't believe that a hole you could drive a train through has been blown in the exclusionary rule.
I really believe that if the officers in this case had not announced themselves and simply turned the knock and announce warrant into a no-knock the supremes never would have seen the case because every lower court would have correctly ruled that the evidence was inadmissible.
I think Kennedy's brief pretty much says it all with the statement about 20 seconds being the difference between the entry being good or bad. Bart is right in that we'll have to see how the lower courts rule on a case where the 20 second difference would have kept the evidence from being legally seized anyway. I just don't think that's going to happen.
There have been proposals for legislation to pull the teeth from the exclusionary rule in every republican platform since the 1980s. But the legislation has never gone anywhere in congress. If the exclusionary rule has been gutted, (and I don't believe it has) then the conservatives will have done the same thing they accused the liberals of doing for years, legislating from the bench what they couldn't achieve in congress.
Jeff
No i don't believe this will open the door to abuse. This ruling means very little to the way our work is done. Those officer who have done the wrong thing in the past will continue until caught. The vast majority of us will continue to do things the right way.
I am concerned with misinformation getting to small departments with little or no advanced training. If all the people on the inet are minsunderstanding it as bad as this and other boards then it could be misused unintentionaly.
I am concerned with misinformation getting to small departments with little or no advanced training. If all the people on the inet are minsunderstanding it as bad as this and other boards then it could be misused unintentionaly.
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