The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!
~ William Pitt
Have no fear, America! Despite the claims of alarmists, the United States is not coming underneath the type of steely totalitarian gauntlet where we need fear a knock at the door. No, your Supreme Court has eliminated that fearful scenario. Instead, there will be no knock.
In its June 15th ruling in Hudson v Michigan, the Supreme Court has basically eviscerated the requirement that there be a knock on the door by authorities before the execution of a search warrant. While the prohibition essentially remains in form, the penalty for the failure to knock has lost its major deterrent force — the exclusionary rule.
Quite simply, what the exclusionary rule did was to exclude from the available evidence at trial any evidence that was obtained from a violation of the standards for execution of a search warrant. One of these search warrant standards is (or more aptly, was) the requirement that police knock and announce themselves. While the court has formerly whittled away at this requirement through the use of certain "exigent circumstances," Hudson effectively lays the practice of knocking in a shallow grave.
While the death of the knock is in itself troubling enough, the Court’s rationale may be even more troubling. The Court, relying on the ever arbitrary and equally dubious "balancing test," weighed the "deterrence benefits" of the use of the exclusionary rule against its "social costs." Such social calculus always provides an interesting insight into the mind of the Court.
For the majority, "social costs" consist of such factors as (1) "a constant flood" of legal challenges for alleged failures to observe the knock and announce rule, (2) the risk that "officers would be inclined to wait longer than the law requires" after knocking (and we all know that SWAT team types truly tend to agonize decisions before springing into action), and (3) that the delay after knocking (in the past, three seconds has been viewed by the Court as adequate wait time) provides time for the destruction of evidence and the arming of dangerous suspects.
Conversely, the "deterrence benefits" of the exclusionary rule as a check on rampant police aggression are viewed as minimal. Rather, an aggrieved party who has been the victim of a knock and announce violation can file a civil rights law suit. But even more surreal is the Court’s contention that such law suits might not even be necessary because of the "increasing professionalism of police forces, including a new emphasis on internal police discipline." Who could argue with that?
One can almost take a perverse pleasure in watching the "originalist" and "textualist" Justice Antonin Scalia hypocritically perform the arbitrary balancing test that girds so many of the Court’s pro-State rulings. It is not explained (if explainable at all) how the supposed "constant flow" of legal challenges to the knock requirement at criminal trial is somehow more onerous to the court system than the constant flow of civil rights law suits which the Court views as a more proper remedy. Of course the real benefit to the aspiring authoritarian state is that those civil rights law suit would most likely be pursued by people in prison. A deterrent to police abuse indeed!
Likewise, the timing issue surrounding a proper knock is bizarrely treated. One is left to ask how much crack cocaine can be flushed down a toilet if the scruple-ridden cops wait 10 seconds (instead of the permissible three seconds) after knocking and is the preservation of such a paltry amount worth calling in the jack-booted thugs? Additionally, isn’t it the über-ninja style raids that send panicked suspects grabbing for their guns in the first place? What happened to the film noir scenes of the cops telling Mugsy that the jig is up, the joint is surrounded, and he better come out with his hands held high?
As an insulting coup de grâce for this injurious constitutional coup d’état, the Court assures us that law enforcement has had Original Sin exorcised at the new and improved police academy. Justice Scalia writes that concerns about police behavior may have been valid in 1980 but that now "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously." While on one level such a statement is worth a gasp and a chortle, on another level Scalia writes the truth — for as constitutional rights are stripped away by the Supreme Court, there are fewer and fewer police behaviors that are violative of the law. By legalizing thuggery, thuggish law enforcement is not only christened but encouraged.
But the heralding of contemporary law enforcement as the new Soviet man is instructive as to how the Court sees itself. There is no thought of "inalienable rights" or the 9th Amendment. The much-feared "natural law" of Clarence Thomas is not to be found. Instead, with the Hudson decision, the Supreme Court has not only laid a firm foundation for a police state, they have reminded us that we the people are the ruled and they are the rulers. They are the wise balancers of scales. They are the sole guardians of justice. They are the ultimate guarantors of our rights. So help us God.
C.T. Rossi [send him mail] is an attorney who lives in Washington, D.C.
