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June 16, 2006

Hudson v. Michigan

Part of the rationale for supporting President Bush over Senator Kerry and Vice President Gore was that he was supposed to appoint judges who would rule on the law as it is rather than as they'd like it to be. That was always an iffy hope; Justice Scalia talks a good game, but he's made it clear in his 4th Amendment jurisprudence that he's as willing to ignore the Constitution as any stereotypical liberal justice when it suits his needs. Nino has shot another brick with the decision in Hudson v. Michigan, having decided that the exclusionary rule does not have to be applied when police violate the knock and announce requirement.

The facts of the case were simple: police believed Mr. Hudson was a drug dealer, and so acquired a warrant to search his property. When they arrived, they waited only 3-5 seconds before entering his home, in which they discovered various illegal drugs. Mr. Hudson moved to suppress the evidence under the exclusionary rule, arguing that the police had violated his 4th Amendment rights by entering his home so quickly. The Court ruled that, while the knock-and-announce rule had been violated, the exclusionary rule did not apply.

It's easy to argue that this is a good thing. After all, Mr. Hudson was violating the law. (I'll elide the question of the justness of the law for another time.) Had his petition been granted, a drug dealer would have been set free. This is a bad thing.

The law often gives us a choice between two bad things. This is one of those cases. Releasing a criminal back onto the streets is definitely a bad thing. But the so is allowing the police to break down our 4th Amendment rights by ensuring that, even when they do so, they do not suffer any adverse consequences. People often complain about criminals being released on technicalities like the failure to read a suspect his Miranda rights. These complaints are similar in nature to the people who argue that some speech should be restricted because it is offensive in some manner. In both cases, only by protecting the unpopular positions can we hold onto our rights. This is particularly apt in the case of the 4th Amendment, which the Supreme Court and Justice Scalia have been happily eviscerating over the past two decades.

In the nightstand next to my bed is a Glock 23 .40 caliber pistol with a round chambered and ready to fire. I never expect to have to use it, but the weapon is there so that, on the off chance someone does decide that my house looks like a good target for robbery or other criminal acts, I can defend myself and my wife. If, some morning at three AM, people break into my house and start running about, it is very unlikely I will be able to determine whether they are police or criminals, having been so rudely awakened. So it is quite possible, given the police tendency to raid the wrong house, that I could end up in a gun battle with the police because they broke in the door and I didn't realize that I was being invaded by the police rather than by criminals. If that sounds unlikely, consider that Cory Maye no doubt also never thought it was a risk before he shot and killed Officer Ron W. Jones on the night of December 26, 2001 when Officer Jones led a raid on his house. While I'm sure some of my readers would object to my readiness to use a handgun to defend my property, I would hope we can all agree that here in the United States you ought to be able to assume that if someone breaks into your home, they're criminals.

Instead, they are all too often police on a drug raid. Thanks to the Supreme Court, they no longer have to wait for you to answer the door, because the Court went along with the theory that, since a drug offender could flush the evidence, the police can break into your home after waiting a 'reasonable' amount of time, which could be as little as 15-20 seconds. And now, they don't even have to announce themselves at all before breaking in, because even if they are technically violating the rules, the Supreme Court has ruled that it won't cost them anything. Without the threat of the exclusionary rule hanging over them, the police have no incentive not to break in immediately.

Police are a necessary thing in a society of any size. Without people to keep the peace, some people will always attempt to take advantage to violate other people's rights. But police are human beings, and are therefore subject to error and fallibility as much as the rest of us. They also are given the priviledge of being permitted to initiate force under certain circumstances. Given that, it is important they be held to a particularly high standard that they will not abuse those powers. The Court's decision to grant them the freedom to do just that will serve only to encourage bad cops and to suggest to good cops that there is no profit in obeying the rules.

Radley Balko is all over this, unsurprisingly, and many useful data can be gleaned from his site by starting here and moving down through the past two days' posts.

Instapundit comments from vacation with some good points about adding penalties beyond the exclusionary rule to discourage this kind of misconduct.

And Kevin Drum explains how this decision proves originalism is a farce. One might argue that what the decision proves is that nobody on the court is using the philosophy, but it doesn't discredit the philosophy, but that's ok.

Update: Baseball Crank argues this is a victory for law enforcement, seeing the exclusionary rule as insufficiently blunt for use as a remedy for an error made in the method of entry. While I can see his point that other means of discipline might be more appropriate, the fact is that no other means of discipline is being applied in these cases, so the choice isn't really between the exclusionary rule and more precise applications of discipline, but between the exclusionary rule or nothing at all.