KNOCKING ON DOOR TO TROUBLE

EARLIER this month, the Supreme Court came down with a ruling that
some see as a step toward a police state and others as a common-sense
approach to justice. In Hudson v. Michigan, the court ruled 5-4 that
if the police enter a suspect's home without knocking, this does not
make the search unconstitutional.

The majority emphasized that it was not giving a stamp of approval to
no-knock searches. While the rule requiring the police to knock,
announce themselves, and wait briefly before entering a residence is
not part of the Fourth Amendment (which protects citizens from
unlawful searches), this procedure has long been a part of common
law. What the court held was that a violation of this rule -- unlike,
say, a search without a proper warrant -- is not serious enough to
require throwing out the evidence found in the search and letting the
defendant go free.

Writing on Slate.com, Akhil Reed Amar, professor of constitutional
law at Yale University and former law clerk to Justice Stephen Breyer
(one of the dissenters in Hudson), argues that the case raises larger
questions about enforcing Fourth Amendment rights. Like the "knock
and announce" rule for police entry, the exclusionary rule, which
requires dismissal of improperly obtained evidence in a criminal
case, is not in the Constitution. As Amar notes, it was not
envisioned by the Founding Fathers and was not used by American
courts for nearly a century after the Bill of Rights was written. In
1961, in Mapp v. Ohio, the Supreme Court made it the law of the land.

Justice Antonin Scalia's majority opinion in Hudson is broadly
critical of the exclusionary rule as a remedy for illegal searches.
While Justice Anthony Kennedy joined the majority, he wrote a
separate opinion that stressed that the reasoning in this case should
apply only to no-knock but otherwise valid searches, with no effect
on the exclusionary rule in general.

Scalia's critique makes some excellent points. If the police conduct
an illegal and even abusive search -- for instance, trashing the
house and roughing up the residents -- the exclusionary rule per se
does not punish the bad cops or compensate their victims. The only
"reward" for individuals whose rights are violated is that the
evidence from an unlawful search cannot be used against them. And if
the search uncovers no evidence of guilt -- if the person is innocent
- -- the exclusionary rule offers no benefits.

The exclusionary rule creates other problems in the justice system.
True, cases of murderers and rapists going free because the evidence
is dismissed on the proverbial technicality are fairly unusual.
What's far more common is police officers lying to cover up technical
improprieties in a search, and judges accepting these lies so as to
avoid dismissing valid and reliable evidence. But as a result, public
confidence in police credibility can be severely undermined. And
sometimes -- as in the O.J. Simpson case, when the police entered
Simpson's house without a warrant on the blatantly false pretext of
being concerned for his safety -- this lack of credibility can lead
the jurors to suspect a frame-up.

Yet there is a major problem with Scalia's reasoning. He argues that
while 50 years ago abusive police tactics were common and few
remedies were available, the situation today is markedly different:
Police forces are much more respectful of citizens' rights, and there
are far more recourses to civil rights litigation. Yet, writing on
the website of Reason magazine, editor Tim Cavanaugh notes that there
has been an opposite trend toward increasingly militarized police
forces and military-style raids -- particularly in drug cases. In
Mississippi, a man named Cory Maye now sits on death row for shooting
a police officer whom he mistook for an intruder during a no-knock
nighttime raid on his house, in search of drugs on what was
apparently a false tip.

Scalia maintains, as does Amar, that civil litigation against the
police is the best way to protect the rights of the innocent. But
this can also let the police off the hook if they have violated the
rights of someone who is guilty: A jury is unlikely to sympathize
with a criminal. In such cases, perhaps judicial review boards to
assess damages and penalties are a good answer.

Meanwhile, leaving the exclusionary rule intact but exempting
no-knock searches from its scope sends the dangerous message that for
the police to burst into a citizen's house unannounced is no big deal.