Last week, the Supreme Court ruled in its 5 – 4 decision in the case of Hudson v. Michigan that when police conduct an illegal, no‐knock raid, any evidence they seize in the raid can still be used against the suspect at trial, even though the raid was conducted illegally.
I’ve spent the last year researching these types of volatile, highly‐confrontational, paramilitary raids for a forthcoming report for the Cato Institute. The decision in Hudson is almost certain to lead to more illegal no‐knock raids, more mistaken raids on innocent people, and more unnecessary deaths, both of civilians and of police officers.
Experts on both sides of the ruling have debated the issue for a week now. I’d like to make another point. The Supreme Court split on this case, right down the middle. The four most liberal justices voted in favor of the defendant, while the five most conservative justices voted in favor of the police.
The Court’s “swing voter,” Justice Kennedy, filed a middling concurrence that sided with the conservatives, but warned them not to take their line of argument any further, or they’d lose his vote. But the majority opinion in this case, written by Anthony Scalia, was not actually all that conservative. Here’s why:
The Rule of Law
As recently as 1995, the Court ruled in the case of Wilson v. Arkansas that the centuries‐old common law notion that police should announce themselves before entering a private home was engrained in the Fourth Amendment. That is, it is an inherent part of the Constitution. The Court issued this ruling unanimously, including votes by Justices Thomas and Scalia.
In Hudson the Court didn’t overturn Wilson. The announcement requirement still exists. But the Court did take away the only realistic way of enforcing it, which is to punish police by barring evidence when they break it.
In his opinion, Scalia argued that there are better ways to punish police who break the rule, such as suing them. But both the state of Michigan and the U.S. government both acknowledged in their briefs in the case that they couldn’t come up with a single case where such a lawsuit had been successful.
In other words, with Hudson and Wilson, the Court has said not only is the requirement that police announce themselves before entering a private home law, it’s in the Constitution, the highest law in the land. Yet the Court has also said it’s not too concerned with enforcing that law.
The Rule of Law is a value held dear by most conservatives. Conservatives tend to loathe the fact that we have laws on the books that go unenforced. And rightly so. Unenforced law undermines respect for the law and for the criminal justice process. Yet that’s exactly what has happened with Hudson.
The most puzzling part of Scalia’s opinion comes in a passage where he states that over the last half century, police have become more professional, and more likely to observe and respect our civil liberties. Therefore, according to Scalia, punishing police officers who break the law shouldn’t be of much concern.
Today, they’re less likely to break the law, and more likely to address and correct those who do internally. I don’t happen to agree (neither, apparently, does at least one of the sources he cites for this passage, who has since said Scalia misinterpreted his work).
But let’s assume Scalia is right. What he’s saying, then, is that things have changed. Police have become better trained and better educated. They are less violent and more cognizant of civil liberties. Therefore, we ought to interpret the Constitution differently – in this case removing the remedy of excluding evidence for search violations – to reflect those changes.
This is the very “living, breathing Constitution” argument the left often makes, and that usually drives conservatives batty. It’s an argument that is inconsistent with the originalism or “strict constructionism” conservatives claim to embrace.
The Castle Doctrine
The knock‐and‐announce rule has a common law tradition that goes back centuries. It is grounded in the “Castle Doctrine,” which states that a man’s home is his castle, his place of asylum, and he has the right to defend it against intruders who would do him harm. The sanctity of the home is the same principle that, for example, led conservatives (and libertarians like me) to so loathe the eminent domain decision the Court issued in the Kelo v. New London case.
The knock‐and‐announce requirement held that when police have a warrant, the owner of a home ought to be given time to compose himself, come to the door, and submit to a peaceful search, and not incur the property damage, fright and possible violence of a forced entry.
Hudson obliterates the Castle Doctrine. It essentially gives police a pass to enter private homes without announcing. It thus makes it much more difficult for a man to adequately defend his home. When intruders force their way inside in the middle of the night, a waking homeowner — particularly one who lives in a low‐income, or high‐crime area — must now pause in the heat of the moment and ask himself, “what if it’s the police?”
Homeowners who understandably mistake police for criminal intruders and put up resistance risk injury, death, or prosecution (see the case of Cory Maye for one example of how these tactics are both dangerous to police and unfair to homeowners). The situation grows even more perilous when one considers that criminals have now caught on to the rising police raid trend.
In my research, I’ve found dozens of examples of criminals posing as raiding police officers to gain entry into a private home.
The most troubling thing about the Hudson case, then, is not that the Supreme Court’s most right‐leaning justices are too conservative to uphold our civil liberties. It’s that when it comes to upholding our civil liberties, we can’t even count on them to be sufficiently conservative.