EVIDENCE OF CHANGE

Last Week's Supreme Court Ruling Hints At An Assault On Privacy Rights

Last week's U.S. Supreme Court decision in Hudson vs. Michigan doesn't
seem all that unreasonable on its face. In a 5-to-4 ruling, the court
held that when police officers fail to properly identify themselves
but enter a house with a valid warrant, the evidence seized can be
used against the accused at trial. The troubling part is the prospect
that four members of the court may be laying the legal groundwork for
a broader assault on the exclusionary rule - a rule that has been
vital to protecting the privacy rights of Americans.

In this case, the police officers had a lawful warrant to search the
Detroit home of Booker Hudson. They announced their presence but did
not knock. Then they entered the house after waiting between three and
five seconds, instead of the 15 to 20 seconds required under the
exclusionary rule. They found drugs and a gun. Michigan conceded that
the Detroit police officers had violated the "knock and announce"
rule. The only issue before the court was what remedy would be
available for the violation.

Typically when there is an unconstitutional entry or search, the
evidence obtained is excluded from trial. This exclusionary rule has
been around since 1914 and was a practical court-ordered solution to a
stubborn problem. Until that time, police were routinely entering
homes illegally and ignoring warrant requirements, despite the Fourth
Amendment. The Supreme Court specifically found that internal
administrative penalties, the threat of a lawsuit and even the
potential for prosecution, did not deter police from ignoring privacy
rights. The exclusionary rule has accomplished what those other
remedies could not. In the decades since its establishment, and
particularly since the rule was applied to state police agencies in
1961, the professionalism of policing has advanced remarkably.

While it is true that sometimes a guilty person has been allowed to go
free because the evidence against him was wrongly obtained, the
greater goals of safeguarding the Constitution's privacy guarantees
and elevating policing standards have been largely realized.

In their ruling Thursday, Justices Antonin Scalia, Clarence Thomas,
Samuel Alito and Chief Justice John Roberts seem to be signaling a
retrenchment. In an opinion authored by Scalia, he acknowledged that
the police in Michigan had illegally entered Hudson's residence, but
held the remedy would not be the suppression of the evidence. Scalia
said the social costs would be too high, since dangerous criminals
could be freed and too many defendants would be encouraged to claim
police violated the rules. (That argument could be made against almost
any application of the exclusionary rule.) Instead, Scalia said,
Hudson could bring a civil lawsuit.

But suing police is expensive and time-consuming. Moreover, police are
granted a partial immunity from lawsuits. It is just not realistic, as
the dissenting justices pointed out.

Justice Anthony Kennedy, the court's new swing vote now that Sandra
Day O'Connor has retired, joined most of Scalia's opinion but wrote
separately to make it clear that he was solidly in support of the
exclusionary rule when the search itself and not the entry alone was
unconstitutionally conducted. Kennedy was obviously concerned with how
far his conservative colleagues are prepared to go in undermining the
foundation of the exclusionary rule. So should all Americans.