'NO KNOCK' RAIDS POTENTIALLY TRAGIC

Supreme Court Weakens The Exclusionary Rule

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.

The Fourth Amendment is 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. 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. As Radley Balko, a Cato
Institute policy analyst whose writing was cited in Justice Stephen
Breyer's eloquent dissent, said, "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." Since
drug raids are often based on confidential informants whose
reliability can be dicey, this decision is likely to lead to more
military-style policing and more "wrong-door" raids on innocent
people. It is wrong-headed and potentially tragic.