Virginia Coalition of Police
and Deputy Sheriffs




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 Aaron Nisenson, General Counsel, I.U.P.A.
     The Supreme Court issued a major decision, holding that evidence seized in a search that violated the "knock and announce" rule did not need to be suppressed at trial.  Hudson v. Michigan (Docket No. 04-1360).

     In the case, while the officers had a warrant to search the suspect's home, the prosecution conceded that the officers violated the knock and announce rule by waiting only three to five seconds between knocking and entering.  Previously, the exclusionary rule would have applied and resulted in the exclusion of the evidence seized in the search.  However, in this case the majority ruled that suppression of the evidence was not required. 

     The vote in the case was five to four, with Scalia authoring the majority opinion, Kennedy authoring a concurring opinion, and Breyer authoring the dissent.  Both majority opinions cited the improvement in police training and discipline and the availability of civil liability as deterrents to unconstitutional acts by officers. 

    Kennedy's concurring opinion most succinctly explains the Court's holding
Our system, as the Court explains, has developed procedures for training police officers and imposing discipline for failures to act competently and lawfully. If those measures prove ineffective, they can be fortified with more detailed regulations or legislation. Supplementing these safeguards are civil remedies, such as those available under 42 U.S.C.   1983, that provide restitution for discrete harms. These remedies apply to all violations, including, of course, exceptional cases in which unannounced entries cause severe fright and humiliation. . . .

     Suppression is another matter. Under our precedents the causal link between a violation of the knock-and-announce requirement and a later search is too attenuated to allow suppression. Cf. United States v. Ramirez, 523 U.S. 65, 72, n. 3, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) (application of the exclusionary rule depends on the existence of a "sufficient causal relationship" between the unlawful conduct and the discovery of evidence). When, for example, 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.

     An interesting issue is whether this portends a whole scale revision of the exclusionary rule.  Kennedy, whose vote was needed for the majority, said no and limited his concurrence: "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression."

     However, Scalia's four vote majority and Breyer's four vote dissent, both made many of their points in much broader terms, debating the underlying need for the exclusionary rule -- a debate that could be extended in future decisions.