COURT LIMITS PROTECTION AGAINST IMPROPER ENTRY

WASHINGTON - Evidence found by police officers who enter a home to
execute a search warrant without first following the requirement to
"knock and announce" can be used at trial despite that constitutional
violation, the Supreme Court ruled on Thursday.

The 5-to-4 decision left uncertain the value of the
"knock-and-announce" rule, which dates to 13th-century England as
protection against illegal entry by the police into private homes.

Justice Antonin Scalia, in the majority opinion, said that people
subject to an improper police entry remained free to go to court and
bring a civil rights suit against the police.

But Justice Stephen G. Breyer, writing for the dissenters, said the
ruling "weakens, perhaps destroys, much of the practical value of the
Constitution's knock-and-announce protection." He said the majority's
reasoning boiled down to: "The requirement is fine, indeed, a serious
matter, just don't enforce it."

The decision followed a reargument less than a month ago, with the
newest justice, Samuel A. Alito Jr., evidently casting the decisive
vote. Justice Breyer's dissenting opinion was clearly drafted to speak
for a majority that was lost when Justice Sandra Day O'Connor left the
court shortly after the first argument in January.

The justices' lineup in this case, which upheld a Detroit man's
conviction for drug possession, may become a familiar one as the court
proceeds through its criminal-law docket. In addition to Justice
Alito, those who joined the majority opinion by Justice Scalia were
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and
Anthony M. Kennedy. Justice Breyer's dissenting opinion was joined by
Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

The decision answered a question that the court had left open in 1995,
when it held in a unanimous opinion by Justice Thomas that the
traditional expectation that the police should knock and announce
their presence was part of what made a search "reasonable" within the
meaning of the Fourth Amendment. The amendment bars unreasonable searches.

In that case, Wilson v. Arkansas, the court declined to say what the
remedy should be for a violation of the knock-and-announce rule.
Ordinarily, evidence that is seized illegally -- in the absence of a
warrant, for example -- may not be used at trial, under what is known
as the exclusionary rule.

By a strong majority, most state and federal courts that have
considered the issue have applied the exclusionary rule to violations
of the knock-and-announce requirement. In its decision on Thursday in
Hudson v. Michigan, No. 04-1360, the Supreme Court upheld a ruling by
the Michigan Court of Appeals, one of the few courts to have rejected
the exclusionary rule in this context.

In the case, the Detroit police had a warrant to search for drugs in
the home of Booker T. Hudson Jr. At his unlocked door, they announced
their presence, but did not knock and waited only three to five
seconds before entering, not the 15 to 20 seconds suggested by the
Supreme Court's precedents.

Had the police observed a longer wait, they would have executed the
search warrant and found the evidence anyway, Justice Scalia said.
That made the connection between the improper entry and the discovery
of the evidence "too attenuated" to justify the "massive remedy of
suppressing evidence of guilt."

Justice Scalia said the knock-and-announce rule was designed to
protect life, property and dignity by giving the homeowner time to
respond to the knock and eliminating the need for the police to break
down the door. But he said the rule has never protected "one's
interest in preventing the government from seeing or taking evidence
described in a warrant."

Throughout his opinion, Justice Scalia made clear his view that the
right at issue was a minimal, even trivial, one -- "the right not to
be intruded upon in one's nightclothes," he said at one point -- that
could not hold its own when balanced against the "grave adverse
consequences that exclusion of relevant incriminating evidence always
entails."

The majority opinion was sufficiently dismissive of the exclusionary
rule as to serve as an invitation to bring a direct challenge to the
rule in a future case.

Justice Scalia surveyed changes in the legal landscape since 1961,
when the court in the landmark case Mapp v. Ohio made the exclusionary
rule binding on the states. Noting that the purpose of the
exclusionary rule was to deter constitutional violations by making
them costly for the prosecution, Justice Scalia said there was less
need for deterrence today, when the police are better trained and when
the ability to bring civil rights suits against the government has
greatly expanded. Under current federal law, he noted, successful
civil rights plaintiffs are reimbursed for their attorney fees.

The conditions that made deterrence necessary "in different contexts
and long ago" no longer exist, Justice Scalia said, adding that a
strict application of the exclusionary rule as envisioned by the court
in 1961 "would be forcing the public today to pay for the sins and
inadequacies of a legal regime that existed almost half a century ago."

It is rare to find Justice Scalia, a self-described "originalist,"
incorporating evolving conditions into his constitutional analysis.
Almost always, when the court in a constitutional case takes account
of changing conditions, the result is an expansion of constitutional
rights, rather than, as Justice Scalia advocated in this case, a
contraction.

One puzzling aspect of the decision was a concurring opinion by
Justice Kennedy, who said that he wished to underscore the point that
"the continued operation of the exclusionary rule, as settled and
defined by our precedents, is not in doubt." Nonetheless, he signed
the part of Justice Scalia's opinion that suggested that the
exclusionary rule rested on an increasingly weak foundation.

Justice Breyer argued that "the court destroys the strongest legal
incentive to comply with the Constitution's knock-and-announce
requirement. And the court does so without significant support in precedent."

He called the majority's argument "an argument against the Fourth
Amendment's exclusionary principle itself," adding, "And it is an
argument that this court until now has consistently rejected."