COURT EASES 'NO KNOCK' SEARCH BAN

Illegally Collected Evidence Allowed

The Constitution does not require the government to forfeit evidence
gathered through illegal "no knock" searches, the Supreme Court ruled
yesterday, in a far-reaching ruling that could encourage police with
search warrants to conduct more aggressive raids.

The 5 to 4 decision broke with the court's modern tradition of
enforcing constitutional limitations on police investigations by
keeping improperly obtained evidence out of court. The "exclusionary
rule" has been imposed to protect a series of rights, such as the
right to remain silent in police custody and the right against
warrantless searches.

But the broadly worded majority opinion by Justice Antonin Scalia,
joined by Chief Justice John G. Roberts Jr. and Justices Anthony M.
Kennedy, Clarence Thomas and Samuel A. Alito Jr., suggested that the
nation has moved into a new era of improved policing in which such
strong medicine may no longer be justified.

The ruling underscored the court's rightward shift since Alito
replaced Justice Sandra Day O'Connor, who seemed to disagree with
Scalia about the case while she was on the court. And it once again
focused attention on the pivotal role of Kennedy, a moderate
conservative, who supplied a fifth vote to the majority while issuing
a separate concurring opinion that disavowed a portion of Scalia's
opinion and asserted that it did not portend any broader erosion of
the exclusionary rule.

At issue in yesterday's case, Hudson v. Michigan , No. 04-1360, was
the "knock and announce" rule, which has deep roots in Anglo American
law. In 1995, the court made it part of what defines a "reasonable
search" under the Fourth Amendment, without saying how it should be
enforced.

But most federal and state lower courts to consider the matter have
ruled that it should be enforced through an "exclusionary rule," along
with the rest of the Fourth Amendment.

Before yesterday's decision, police executing a search warrant in most
jurisdictions had to worry that they might lose a case if they did not
first knock on the door, announce themselves and wait a reasonable
time for a response before forcing their way in.

Now, unless state law says otherwise, the most they would face is
administrative discipline or a lawsuit for damages.

Civil liberties groups and defense lawyers had argued to the court
that those deterrents are far too weak to enforce the "knock and
announce" rule, which, they argued, is often all that stands between
an innocent citizen and an errant SWAT team.

That position was urged on the Supreme Court by attorneys for Booker
T. Hudson Jr., a Michigan man convicted of drug possession after
police found crack cocaine in his pockets during a 1998 no-knock raid
that the state admitted was unlawful.

But Michigan's Supreme Court was one of the few lower courts to reject
an exclusionary rule for "knock and announce" violations. Hudson's
conviction was upheld, and he appealed to the U.S. Supreme Court.

Scalia's opinion focused on the guilty defendants who go free when
otherwise valid evidence is thrown out of court. He concluded that
that "social cost" is too high in relation to whatever additional
privacy protection residents get from the "knock and announce" rule.

"Resort to the massive remedy of suppression of evidence of guilt is
unjustified," Scalia wrote.

Scalia argued that the law enforcement landscape has changed
dramatically since 1961, when the Supreme Court first imposed an
exclusionary rule on the states to protect against warrantless
searches. Today's police are more professional than those of 45 years
ago, he observed, and there is "increasing evidence that police forces
across the United States take the constitutional rights of citizens
seriously."

In this environment, Scalia argued, lawsuits and administrative
proceedings are enough to ensure that police comply with the "knock
and announce" rule.

That line of reasoning prompted a 30-page dissenting opinion from
Justice Stephen G. Breyer, who disputed Scalia's upbeat view of modern
policing and argued that lawsuits and police discipline have already
proved inadequate to punish and deter "knock and announce" violations.

"Today's opinion," Breyer wrote in dissent, "weakens, perhaps
destroys, much of the practical value of the Constitution's
knock-and-announce protection." Justices John Paul Stevens, David H.
Souter and Ruth Bader Ginsburg joined Breyer.

Scalia's cost-benefit analysis could be invoked not only to deny a new
exclusionary rule in this case, Breyer argued, but also to roll back
the use of the exclusionary rule to enforce the Fourth Amendment in
areas where it has long been recognized.

"The majority's 'substantial social costs' argument is an argument
against the Fourth Amendment's exclusionary principle itself," Breyer
wrote. "And it is an argument that this Court, until now, has
consistently rejected."

Kennedy tried to diminish the apparent sweep of Scalia's opinion,
indicating that "the continued operation of the exclusionary rule as
settled and defined by our precedents, is not in doubt."

There was strong circumstantial evidence that, if O'Connor had not
been replaced by Alito, Breyer would have been speaking for the court.

In January, when the justices heard the case and cast tentative votes,
Connor was still on the court. Her comments at argument suggested she
favored Breyer's view.

But after she left the court Jan. 31, the court announced the case
would be reargued -- a sign that it had reverted to a 4 to 4 tie
without her vote.