POLICE POWERS RULING EXPECTED TO HINGE ON ALITO

Justices Rehear Case On House-Search Rule

WASHINGTON -- The Supreme Court held a rare mid-May oral argument
Thursday on the power of police to search private homes without
knocking first--a major privacy-rights case likely to be decided by
the vote of the court's newest member, Justice Samuel Alito.

At issue in Hudson vs. Michigan is the "knock and announce" rule
rooted in the 4th Amendment to the Constitution and Anglo-American
common law. The rule says that, in normal cases, police with a search
warrant must first knock and state their purpose, then wait a
reasonable period, before forcing their way in.

Most federal and state courts that have considered the question have
said courts must exclude evidence seized by police who failed to
follow the rule. But in recent years the Michigan Supreme Court has
joined the minority that say no such "exclusionary rule" is required.

When the court first heard oral argument on Jan. 9, Justice Sandra
Day O'Connor still was on the bench. But O'Connor stepped down in
favor of Alito before the court could issue its opinion.

The court then announced it would hear arguments again. It gave no
reason, but because it would have been able to issue a decision if
there still were five votes for one side or the other without
O'Connor, the most probable explanation is that the court was divided
4-4 and needs Alito, a former prosecutor who built a strong
pro-police record as a federal appeals judge, to break the tie.

Liberals on the court openly worried that Michigan's approach would
carry the day--effectively gutting the knock and announce rule and,
potentially, other restrictions on police searches as well.

Justice Stephen Breyer said that if the court rules in Michigan's
favor, "we'd let a kind of computer virus loose in the 4th Amendment.
I don't know what the consequences would be."

Michigan courts upheld the 2002 drug possession conviction of Booker
Hudson, ruling that the officers who burst into his Detroit home
three to five seconds after shouting "Police! Search warrant!" would
have found crack cocaine in his jeans even if they had knocked and waited.

Under a 1999 Michigan Supreme Court ruling, defendants such as Hudson
can prevail only if they show that the police's failure to knock on
the door directly caused the discovery of the evidence.

Michigan does not deny that the officers technically violated the
knock and announce rule. It argues rather that, because they had a
warrant, their presence in the house was legal even if the way they
got inside was not.