NO-KNOCK RULING RISKS TRAGIC LOSS

In Hudson v. Michigan, handed down last Thursday, the U.S. Supreme
Court carved out yet another "drug war exception" to the Fourth
Amendment, which was written to protect Americans from unreasonable
searches and seizures of their persons and homes.

Unfortunately, the ruling is likely to lead to more military-style
no-knock raids on people's homes and businesses, which will mean some
innocent people's homes will be raided, and a few people are likely to
be killed. The Fourth Amendment states, "The right of the people to be
secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrant shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized." It's an affirmation of the
ancient common-law principle that a person's home is his or her
castle, that the authorities cannot intrude on it without solid
evidence of a crime having been committed or being in progress.

The most direct way to enforce this rule would probably be to impose
fines or other penalties - even prison sentences - on police who
violate it, but such penalties are not realistic.

So about 100 years ago the courts came up with the "exclusionary
rule": Evidence seized in an illegal search is excluded from any
subsequent court case. It's an imperfect rule - the incentive for a
police officer to worry about the final disposition of a case is
somewhat indirect - but it's the best device we've come up with, and
it has a long history. The situation is complicated when legislatures
pass laws against crimes that are victimless in the very specific
sense that there is unlikely to be a complaining victim to go to the
police to offer specific and reliable information for an accurate warrant.

Drug laws, which prohibit adults from ingesting certain substances,
are one example.

Neither the buyer nor the seller of drugs is likely to complain to the
police, even if a transaction goes sour. A user of illicit drugs is
unlikely to call the police and say, "Hey, there are illicit drugs in
my apartment." To get evidence to prosecute these laws increasingly
intrusive methods of getting into otherwise private places and
surprising people are necessary.

Therefore, the constitutional protection against unreasonable searches
and seizures must be and has been progressively weakened.

Among the methods increasingly employed are undercover operatives and
informants, "no-knock" warrants, in which a judge can authorize
serving a warrant without the police knocking and announcing, and
military-style SWAT team invasions.

These tactics can put police at risk if a person is confused and
thinks criminals are breaking down his door, and they have led to
"wrong-door" raids where innocent citizens have been killed by the
police.

In the Hudson case, the police, who did have a warrant, waited only
three to five seconds before entering Booker T. Hudson's apartment and
finding cocaine and a gun. The courts who reviewed the case agreed it
violated the "knock-and-announce" rule and was unconstitutional, but
the appellate court in Michigan ruled that excluding the evidence was
too severe a penalty for a minor infraction and allowed the evidence,
leading to Mr. Hudson's conviction. A deeply divided 5-4 Supreme
Court, in an opinion written by Justice Antonin Scalia, affirmed that
decision.

The decision could mean, in effect, that every search warrant becomes
a "no-knock" warrant.

As Radley Balko, a Cato Institute policy analyst whose writing was
cited in Justice Stephen Breyer's eloquent dissent, told
Appeal-Democrat sister paper the Orange County Register, "the state of
Michigan acknowledged that it knows of no successful suits or
disciplinary action against police who violated search-and-seizure
rules. So the only real defense against police abuse was to exclude
evidence seized in illegal raids. Today, the Supreme Court removed
that defense."