A Stitch in Haste

(Originally posted 9 January 2006.)

The warrantless wiretap scandal has introduced a new term into the lexicon: "Fourth Amendment absolutist." The term is used, disparagingly, by apologists for the policy and is a mundane straw man argument: If you don't agree with with warrantless wiretapping, then you must think that there can never be any exceptions at all to the Fourth Amendment.

Perhaps there are "Fourth Amendment absolutists," but I'm not one of them:

On the afternoon of August 27, 1998, seven Detroit police officers approached the home of Booker T. Hudson seeking to execute a valid search warrant for narcotics and weapons. Upon reaching the door, several officers shouted, "Police, search warrant," but did not actually knock on the door. After waiting only three to five seconds ... the officers opened the unlocked door and proceeded into the home. ... Upon entering, the officers found Hudson sitting in the living room and several other people running throughout the house. On Hudson's person, the police discovered five rocks of crack cocaine. Elsewhere in the house police found numerous baggies of cocaine and a loaded revolver.

Hudson was charged ... with possession of cocaine with intent to deliver and with possession of a firearm during commission of a felony. Hudson moved to suppress the evidence found in his home on the ground that the failure to knock and announce before entering violated the Fourth Amendment and Michigan law.

Cut to the chase: the Supreme Court is now reviewing the case.

The formal "Question Presented" is as follows:

Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a Fourth Amendment "knock and announce" violation?

The informal "question presented" is as follows: Is there a constitutional right to "flush it down the toilet"?

I say: No, there is no such right.

The police had a valid warrant, announced their presence and entered through an unlocked door. This is troubling to civil libertarians — why?

Here's what I don't get: If the defendant hadn't been home when the police showed up (which the police thought was the case), then none of this would be an issue. How does his being home affect the legal reasoning, except if one argues that he had a right to hear the "knock" (didn't he hear the "announce"?) and make a dash for the bathroom. How did a "20-second headstart" become a constitutional requirement? Especially when the warrant is for, not only drugs, but also a weapon. Twenty seconds is more than enough time to lock and load — and kill a cop or two.

Knock-and-announce serves one purpose and one purpose only: to give criminals a chance to destroy the evidence (or to escape). It seems obvious that a de minimus oversight that was not the result of intentional police misconduct, and that in no way affected the outcome of the arrest and the seizing of evidence, should not vitiate the entire prosecution.

I certainly believe, strongly, in the broad concept of the Exclusionary Rule (a doctrine that appears nowhere in the Constitution, incidentally). But to expect perpetual perfection by police in "hot" situations such as serving a warrant for a weapon, and to then quash cases for the sake of nit-picking, is to go too far. Michigan and the Department of Justice are right on this one. Failure to knock as part of "knock and announce" should only trigger the exclusionary rule if the misconduct by police does not prevent misconduct by the suspect (i.e., an opportunity to destroy evidence). In other words, if the police misconduct merely denied the defendant the opportunity to engage in his own misconduct (e.g., to flush the evidence), then the Exclusionary Rule should not apply.

The real threat to the Fourth Amendment, as we are seeing, is in circumventing the warrant requirement altogether. That was simply not the case here. Knock-and-announce is a good idea, but it not worthy of "Fourth Amendment absolutism."

The case is Hudson v. Michigan, No. 04-1360.

UPDATE: The Supreme Court has scheduled a re-argument of the case before all nine justices (the case was argued before Justice Alito joined the Court). This suggests a 4-4 deadlock or some other convoluted vote. Stay tuned. More thoughts at SCOTUSblog.