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Tuesday, June 28, 2005

Cert Granted in Fourth Amendment Case

The case is Hudson v. Michigan, No. 04-1360, and the issue is described by BNA.com as "Whether "inevitable discovery" doctrine creates a per se exception to exclusionary rule for evidence seized after violation of "knock and announce" rule of the Fourth Amendment."

Moran The case is being litigated by Wayne State CrimProf David Moran.  He posted the following about the case on the crimprof list serve:

I have a [Supreme Court case] pending in Hudson v. Michigan, No. 04-1360, in which the issue is whether evidence found in a home after a 4th Amendment knock-and-announce violation should be suppressed or whether it should come in under the theory that the police would have "inevitably discovered" the same evidence if they had knocked and announced.  This inevitable discovery argument has been explicitly accepted by the Michigan Supreme Court and the 7th Circuit and   explicitly rejected by the 6th and 8th Circuits, the Arkansas Supreme Court and the Maryland Court of Appeals.  

The government's inevitable discovery argument relies on language from Nix v. Williams that the police should not be placed in a "worse position" than they would have been in without the  constitutional violation.  But the Court has many times suppressed evidence and thereby put the
police in a worse position than they would have been had they not violated the Constitution.  For example, in Katz, the Court observed that the FBI had ample probable cause to obtain a warrant to bug the telephone booth, but suppressed the evidence because the police did not obtain a warrant.  Thus, the police were placed in a worse position than they would have been had they not committed the violation.  There are many such cases in which evidence has been suppressed where the police could have, but did not, obtain a warrant.

My question to you folks is:  can you think of cases in which the constitutional violation  was not failure to get a warrant in which the Court placed the police in a worse position than they would have been had they not committed the violation?  I've come up with a few, but I'm sure there must be lots more.  And, more broadly, when is it correct to say that the deterrence rationale of the exclusionary rule necessarily requires that the police sometimes be put in a worse position than they would have been without the violation, notwithstanding the contrary statement in Nix?

Contact David Moran at d.moran@wayne.edu  [Mark Godsey]

http://lawprofessors.typepad.com/crimprof_blog/2005/06/cert_granted.html

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