Midland, Texas, police kick in a door after knocking at a residence during a city-wide roundup of individuals with narcotics charges against them in August 2005. The police possessed a felony drug warrant, and the occupants were known to be armed and dangerous. Photo courtesy Midland Reporter Telegram/Tim Fischer
FEATURED IN TRAINING
The United States Supreme Court recently decided the exclusionary rule does not apply when police officers fail to properly "knock-and-announce" their presence during the execution of a search warrant. Writing for a 5-4 majority, Justice Antonin Scalia stated in Hudson v. Michigan that suppressing evidence under such circumstances would essentially give a get-out-of-jail-free card to criminal suspects arrested pursuant to a valid warrant. According to the Court, that penalty is simply too high.
The case arose after several Detroit police officers executed a search warrant authorizing a search for drugs and weapons at Booker Hudson's residence. When the police arrived to execute the warrant, they shouted, "Police! Search warrant!" without knocking, and they waited only 3-5 seconds before one of the officers turned the knob of Hudson's unlocked home and entered. Once inside, the officers found Hudson sitting in a chair. After finding large quantities of drugs, including crack cocaine in Hudson's pocket, they arrested him. The police also located a loaded gun lodged between the cushion and armrest of the chair in which Hudson had been sitting.
Hudson moved to suppress the evidence, arguing the police officer's failure to wait the appropriate amount of time before entering violated his rights under the Fourth Amendment. The Michigan trial court granted Hudson's motion. On appeal, the state Court of Appeals reversed the trial court because a line of Michigan Supreme Court cases held suppression of evidence is inappropriate when entry is made in accordance with a warrant but without a proper knock-and-announce. Hudson appealed the case to the Michigan Supreme Court, but that court refused to hear it. Hudson was subsequently convicted of drug possession. The case then went up to the United States Supreme Court.
The Legal Issue
The question before the United States Supreme Court: Does a violation of the knock-and-announce rule when police officers possess a search warrant justify the application of the exclusionary rule? Generally, the exclusionary rule holds that when police violate certain procedures, evidence obtained by the police is later excluded at the criminal suspect's hearing as a penalty for the officers' unlawful procurement of the evidence. Several courts have applied the exclusionary rule in cases where the police fail to follow the knock-and-announce rule. That rule generally states police with a search warrant must knock and state their purpose, then wait a reasonable period for a response before forcing their way into the residence. However, in recent years, several courts, such as the Michigan Court of Appeals in Hudson, have held application of the exclusionary rule is not required for violations of the knock-and-announce rule.
In Hudson, the police argued they would have found the crack cocaine in Hudson's jeans even if they had properly knocked-and-announced their presence and waited. In other words, according to the police, the violation of the knock-and-announce rule did not directly cause the discovery of the evidence. The police argued that because they had a warrant, they were legally authorized to enter the home even if the method of entry was illegal. The Supreme Court agreed.
Purpose of Knocking-&-Announcing
The Court in Hudson reiterated the knock-and-announce rule was never meant to protect "one's interest in preventing the government from seeing or taking evidence described in a warrant." On the other hand, the rule was meant to protect several interests, one of which is "human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident."
The rule also protects one's property. The knock-and-announce rule gives individuals "the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry." Finally, the rule gives occupants of a dwelling the dignity of gathering their senses, something easily destroyed with a sudden entrance. According to the Court, the "brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or to get out of bed."
The Supreme Court's Decision
The Court stated the knock-and-announce rule is not easily applied. Many situations arise where it's not necessary for police to knock and announce their presence; e.g., where there's a threat of physical violence, a reason to believe the evidence would be destroyed if advance notice were given or where knocking and announcing would prove "futile."
However, in instances where these exceptions do not apply, it's not easy to determine what the police must do. That is, how many seconds is too few before the officers enter? The Court acknowledged its "reasonable wait time" standard not "how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs" is too vague. Even so, the Court didn't have to grapple with the particular issue of how much time was necessary for police to wait before entering Hudson's residence because the police conceded they violated the knock-and-announce rule. Thus, the only issue before the Court in Hudson was the remedy for violating the knock-and-announce rule.
The Court acknowledged the application of the exclusionary rule, which requires the suppression of evidence, has always been its "last resort," not its "first impulse." In fact, the Court has been cautious against expanding the application of the exclusionary rule because of its potential "substantial social costs," which sometimes enable the guilty and dangerous to go free. The Court affirmed it has "repeatedly emphasized that the rule's 'costly toll' upon [the] truth-seeking [process] and law enforcement objectives presents a high obstacle for those urging [its] application," and has only applied the rule "where its deterrence benefits outweigh its 'substantial social costs.'"
In Hudson's case, the Court stated the costs were considerable. In addition to the costs noted above, excluding evidence for a knock-and-announce violation would generate a constant flood of suspects' accusations the police failed to observe the rule. According to the Court, "the cost of entering this lottery would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card." As a result, the courts would be inundated with litigation just to determine whether particular evidence must be excluded.
Another unfortunate result of applying the exclusionary rule to knock-and-announce violations "would be police officers' refraining from timely entry after knocking and announcing." As indicated above, the amount of time required after knocking and announcing is uncertain. However, to ensure they comply with the rule to avoid the application of the exclusionary rule, police officers "would be inclined to wait longer than the law requires producing preventable violence against officers in some cases, and the destruction of evidence in many others." Obviously, these are severe consequences.
Finally, in response to concerns the police would now be undeterred in violating the knock-and-announce rule, the Court stated civil liability remains an effective deterrent. Police forces across the country now take the constitutional rights of citizens very seriously and realize law enforcement officers' failure to "teach and enforce constitutional requirements exposes municipalities to financial liability." It also noted police agencies have become more professional over the last several decades with the development of internal police discipline. According to the Court, internal discipline, which can limit successful careers, provides another deterrent.
The Court concluded "the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences (sic) against them are substantial. . . ." As such, "[r]esort[ing] to the massive remedy of suppressing evidence of guilt is unjustified."
Application of Hudson
The Hudson opinion does not do away with the knock-and-announce rule. If the exceptions to knocking and announcing do not apply to a specific search, police officers must wait a reasonable time before entering the residence. However, should police officers violate the knock-and-announce rule, the opinion simply holds the evidence found as a result of the execution of the warrant would not be subject to the exclusionary rule at a subsequent suppression hearing.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
- 126 S.Ct. 2159 (2006).
- Id. at 2165.
- Id. at 2162-63.
- Id. at 2163.
- Id. at 2166.
- Id. at 2168.