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Bloggers 'Knock' Hudson Ruling

If there is a cheering section for yesterday's 5-4 Supreme Court ruling in Hudson v. Michigan, weakening the longstanding "knock and announce" rule, it is muted. The more common sentiment among bloggers seems to be that the decision foreshadows the death of the exclusionary rule. As Tony Mauro explains at Legal Times, Justice Antonin Scalia's majority opinion did not repeal the knock-and-announce rule, but "said the traditional remedy for police violation of the rule -- namely, barring the use at trial of the evidence found -- is no longer required."

In his analysis of the ruling at SCOTUSblog,  Lyle Denniston says the case "raises significant new questions about how sturdy the 'exclusionary rule' is as a remedy for constitutional violations by police" and suggests "new doubt about the continuing validity of the 'knock-and-announce' rule." Scalia's reasoning, Denniston says, poses "questions about how far the decision may ultimately reach, or what future changes in constitutional doctrine it may portend." He notes, however, that Justice Anthony M. Kennedy, in a separate opinion, states, "[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt."

Even with Justice Kennedy's separate opinion, Norm Pattis at Crime & Federalism is anything but reassured. He contends that the decision will have implications for civil as well as criminal cases, undermining civil rights actions based on unreasonable searches. Pattis writes:

"The Fourth Amendment is evaporating before our very eyes. Where once the Court ... concluded that it was far better that ten guilty men go free than one innocent man be convicted, today the Court reasons from a position of fear: Let's not get hung up on technicalities in the war on crime and terror, seems to the new ethos."

As Howard Bashman reports, editorials in several major newspapers denounced the decision. The New York Times says that the ruling "substantially diminished Americans' right to privacy in their own homes." The Los Angeles Times argues that the court "needlessly gutted a venerable protection for personal privacy." The blog TalkLeft  contends that, thanks to the decision, "the police have little incentive to obey the constitutional requirement to knock and announce their presence before busting down doors." And Federal Criminal Appeal says that close examination of the majority, concurring and dissenting opinions reveals "just how big a threat this ruling poses for individuals and how great a boon for law enforcement officers."

In fact, it is hard to find a blogger who supports the decision. Even the conservative law professor Glenn Reynolds, at Instapundit,  calls the decision "defensible legally, but not morally." He writes:

"That is, it's not much of a stretch from the existing caselaw, but it produces a rule that seems inconsistent with the original meaning of the constitution, and common sense."

Perhaps Justice Breyer, in his eloquent dissent, best sums up what many seem to be saying about the case:

"Today’s opinion is thus doubly troubling. It represents a significant departure from the Court’s precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection."

Posted by Robert J. Ambrogi on June 16, 2006 at 03:15 PM | Permalink | Comments (8)


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