THE DON'T-BOTHER-TO-KNOCK RULE

The Supreme Court yesterday substantially diminished Americans' right
to privacy in their own homes. The rule that police officers must
"knock and announce" themselves before entering a private home is a
venerable one, and a well-established part of Fourth Amendment law.
But President Bush's two recent Supreme Court appointments have now
provided the votes for a 5-4 decision eviscerating this rule.

This decision should offend anyone, liberal or conservative, who
worries about the privacy rights of ordinary Americans.

The case arose out of the search of Booker T. Hudson's home in Detroit
in 1998. The police announced themselves but did not knock, and after
waiting a few seconds, entered his home and seized drugs and a gun.
There is no dispute that the search violated the knock-and-announce
rule.

The question in the case was what to do about it. Mr. Hudson wanted
the evidence excluded at his trial. That is precisely what should have
happened. Since 1914, the Supreme Court has held that, except in rare
circumstances, evidence seized in violation of the Constitution cannot
be used. The exclusionary rule has sometimes been criticized for
allowing criminals to go free just because of police error. But as the
court itself recognized in that 1914 case, if this type of evidence
were admissible, the Fourth Amendment "might as well be stricken."

The court ruled yesterday that the evidence could be used against Mr.
Hudson. Justice Antonin Scalia, writing for the majority, argued that
even if police officers did not have to fear losing a case if they
disobeyed the knock-and-announce rule, the subjects of improper
searches could still bring civil lawsuits to challenge them. But as
the dissenters rightly pointed out, there is little chance that such
suits would keep the police in line. Justice Scalia was also far too
dismissive of the important privacy rights at stake, which he
essentially reduced to "the right not to be intruded upon in one's
nightclothes." Justice Stephen Breyer noted in dissent that even a
century ago the court recognized that when the police barge into a
house unannounced, it is an assault on "the sanctity of a man's home
and the privacies of life."

If Justice Sandra Day O'Connor had stayed on the court, this case
might well have come out the other way. For those who worry that Chief
Justice John Roberts and Justice Samuel Alito will take the court in a
radically conservative direction, it is sobering how easily the
majority tossed aside a principle that traces back to 13th-century
Britain, and a legal doctrine that dates to 1914, to let the
government invade people's homes.