BlogHer - Supreme Court Deals Blow (literally) to Fourth Amendment - Comments

At the risk of taking an unpopular side...

cookie210 — Fri, 28 Jul 2006 16:57:01 -0500

The police are not just entering your home unannounced and fishing for a reason to arrest you. In a case for either a knock or no knock warrant prior to Hudson, the police have convinced a judge that they have probable cause to believe you have committed a crime and that the instrumentalities of that crime are present in your home. In the increasingly violent world in which we now find ourselves, the police are entering situations that are even more harmful and unexpected than ever before. They have a warrant. While a no-knock should be used judiciously, I find it difficult to believe that this will open the flood gates. Because reality is, if the police break down your door, they have to fix it. And I just don't think management is going to obtain a "let's have at it now" policy.

A mommy blogger out of her league...
www.mommyneedsacocktail.com

Power

CaseyDawes — Tue, 20 Jun 2006 12:27:27 -0500

This is really a case of the further centralization of power. For all the cries of "states rights" and limiting the centralization of the federal government, this administration and the current climate has done a great deal to centralize power in the hands of a few (usually white male) hands.

If you rule by amping up the fear factor, this is what will happen. Then we must have "law and order" to protect ourselves from the boogeyman.

Casey Dawes
Wise Woman Shining
www.WiseWomanShining.com
http://cdawes.blogs.com/wisewomanshining/

Laura- it does seem strange

stacyb — Mon, 19 Jun 2006 15:43:33 -0500

Laura- it does seem strange in light of the sanctity of the home issue, but I think Scalia and others see this more as a tool to scale back on 4th Amendment protections than a privacy right case going back to the British common law. I think this is more of a defendants rights (or lack thereof) case. And that is probably how some traditional conservatives might justify it.

That said, I am wondering where all the traditional, old school conservatives are with respect to this case because I don't hear much of an outcry from them in the blogosphere-You know, the belief that individual rights against governmental over-reaching is of paramount importance. That used to be an important conservative issue.

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It's the conservative in me

Laura Scott — Mon, 19 Jun 2006 15:11:59 -0500

It's the conservative in me that doesn't like this ruling. The whole "a man's home is his castle" thing is a common law tradition going back some eight centuries, and very much a "founder's intention" issue. Not many countries in the world have governments that don't just storm right into private homes. Most of the exceptions are former colonies of the British Empire.

I find it surprising to see this ruling cheered by conservatives.

Laura Scott
design, snap, blog

I actually don't think this

stacyb — Mon, 19 Jun 2006 14:46:58 -0500

I actually don't think this should be a conservative vs. liberal issue but it has become one.

One of the problems I have with this decision is that turns a long-standing understanding of what is required by the Fourth Amendment and turns it on its head. It also creates confusion for police officers, lawyers etc. Until this week, law enforcement knew it had to comply with the knock-and-announce rule lest the evidence they uncover is not allowed to be entered at trial. Now all bets are off.

There were always exceptions to the knock-and-announce rule which allowed police some leeway when circustances made the rule overly burdensome or when it just wasn't reasonable- like in a hostage situation. In light of that, the Courts decision seems uniquely unecessary but I think it was meant to be a warning- with the Court now dominated by conservatives we can expect more of this because they have the votes, particularly with Alito replacing the more moderate Sandra Day O'Connor.

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Here's the thing, I'm

manicmom — Sun, 18 Jun 2006 20:57:47 -0500

Here's the thing, I'm conservative, but not this far to the left. Conservatives and liberals get both get painted in a bad way when the extremists are the loudest.

Honestly, I think we will self destruct like the anciety cities did when government took too much power. I need a drink.

Space and Time

I agree

lizzorn — Sun, 18 Jun 2006 07:55:49 -0500

But it's is a voting issue as well.
If people continue to vote away their rights, unreasoonably conservitive points of view will eventually destroy this country.
Somewhat like the last persidental election. Not that one guy was better than the other, but here in Ohio the republicans ran ad after ad against gays and gay marriage. Real nasty stuff. They were banking on the homophobic vote and won..
Scare the pants off those bible beaters in Ohio and we can win this thing............
They use things like that to divert attention from the real nasty stuffthey do.
Afterall, the war in Iraq was a perfuect smoke screen, for policy stripping here in the states. Gut the environmental laws, relax the laws for big business. Tax breaks for the richest people.
The only way to change it is to kick the monsers out of the clubhouse.

I agree

stacyb — Sun, 18 Jun 2006 07:22:29 -0500

Minicmom I agree- our constitution is the envy of many around the world specifically because of the protections and checks and balances it provides. The fact of the matter is the government has to have checks on its power and authority and a big incentive to NOT violate a persons rights is the threat that the evidence illegally obtained will NOT be allowed in at trial. For Scalia to practically claim that is not true or to minimize that is just ridiculous. In my opinion.

But some conservative jurists have had a real bone to pick with the fourth amendment and are doing all they can to neuter it.

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And this is why, in my

manicmom — Sat, 17 Jun 2006 16:55:52 -0500

And this is why, in my estimation, why the US is going to hell in a handbasket. I'm all about catching criminals. But do it right. Don't come in my house, because I will shoot and ask later who you are. Then you will wish you knocked.

Space and Time

Supreme Court Deals Blow (literally) to Fourth Amendment

stacyb — Sat, 17 Jun 2006 15:36:46 -0500

Well, that's debatable, but last week the High Court handed down a decision in the case Hudson v. Michigan, which has legal scholars (and bloggers) buzzing about the implications for other 4th Amendment protections.

For those who forget exactly what the Fourth Amendment protects, an oversimplified explanation would be that it protects individuals against unreasonable searches and seizures by the government/state and has long been considered an essential check on governmental abuse of its state police powers.

Appropriately, Slate heralded the case as â€œthe most important case youâ€™ve never heard aboutâ€? and unfortunately, they are probably right as I haven't seen a lot of coverage of the case in the news.

Slate goes on to sum up the issue in Hudson:

At issue is whether or not police who used an illegal "no-knock" raid to enter a defendant's home can use the drugs they seized inside against the defendant at trial. To understand the importance of this case, some background is in order.

As the name indicates, a "no-knock" raid occurs when police forcibly enter a private residence without first knocking and announcing that they're the police. The tactic is appropriate in a few limited situations, such as when hostages or fugitives are involved, or where the suspect poses an immediate threat to community safety. But increasingly, this highly confrontational tactic is being used in less volatile situations, most commonly to serve routine search warrants for illegal drugs.

In other words, does the Fourth Amendment prohibit evidence obtained from a no-knock search from being used against a defendant? Previously the answer was a firm, "yes". In legalese this doctrine is referred to as the exclusionary rule. However, in a 5-4 opinion that is extremely deferential to the government/police, the Supreme Court answered with a resounding "no."

The always-helpful SCOTUSblog puts it this way:

When the case was argued on May 18 (the second of two arguments in the case this Term), it seemed clear that a major Fourth Amendment ruling was in the making. The final opinions justify that impression.

The bare holding of the case is simple: if police have a warrant to search a home, and they enter in a way that violates their constitutional duty to knock first and announce themselves, the evidence turned up in the search can be used in a criminal prosecution.

[snip]

In articulating a second theory as critical to the Hudson decision, the Court made clear that its views may be changing on the value of the exclusionary rule in deterring police misconduct. It exhibited a greater willingness than it has in the past to trust police officers to avoid constitutional violations, and a belief that that trust can better be reinforced by means other than judicial suppression of evidence that is vital to successful criminal prosecutions. This theory was most vividly in display in Justice Scalia's analysis of present-day deterrents that may keep police in line. "It seems to us not...true, as Hudson contends, that without suppression there will be no deterrence of knock-and-announce violations at all," Scalia wrote.

Scalia posits an interesting theory which could possibly also be described as wishful thinking which tends to be repudiated by real life crime-fighting- that the possibility of suppressing evidence gained from police actions that violate the 4th Amendment has not been a meaningful deterrent to such violations. And that begs the question- then what is?

Well, the blog Crooked Timber points us to the answer- and pulled right from Justice Scalia's opinion no less:

By the by, Scalia, writing for the majority, is happy to set his originalism aside and argue that the growth of â€œpublic-interest law firms and lawyers who specialize in civil-rights grievances â€¦ [and] the increasing professionalism of police forces, including a new emphasis on internal police discipline â€¦ [and] the increasing use of various forms of citizen review can enhance police accountabilityâ€? all mean that the fourth amendment can be reinterpreted.

I am willing to bet there are quite a few citizens out there who would beg to differ.

And the blog, The Agitator, reminds us why allowing the police to break down your door without first announcing their presence, may in fact be important, never mind the privacy concerns:

Just for review, those reasons would include the terror and fright associated with having once door beaten down in the middle of the night by armed, masked men; the unimaginable predicament a homeowner is unwillingly put in when he must decide if the intruders are cops or criminals, and whether to confront them or succumb to them; the injury and death that often transpires (to police, suspects, and bystanders) as a result; the right to assume one's home is his castle and place of asylum, and the idea that one should have the opportunity to answer police and avoid the fright and property destruction resulting from a forced entry; and the fact that the perilousness of the situation can lead to police themselves mistaking harmless gestures on the part of suspects as threatening or menacing, again resulting in unnecessary death and injury.

It remains to be seen what impact this decision will have on future Fourth Amendment cases that DON'T deal with the knock-and-announce rule. But so far, many seem to think that this case signals an about-face on the previously accepted and long standing interpretation of the Fourth Amendment and the exclusionary rule.