Thursday, July 14, 2005
From Sherry Colb's Article, When Should Fourth Amendment Violations Lead to Suppression of Evidence? The Supreme Court Takes a "Knock and Announce" Case, on Findlaw.com: "The Court recently granted review in Hudson v. Michigan, a case that addresses the consequences of police violation of knock-and-announce. Specifically, the Court will consider whether evidence obtained after an illegal no-knock home entry should be admissible, across the board, on the theory that it would have been "inevitably discovered" if police had followed the rules. The question provides an opportunity for the Court to consider the rationale behind the inevitable discovery doctrine, and whether it applies in the knock-and-announce context...
The question in Hudson v. Michigan, then, is where a suppression remedy for knock-and-announce violations would fit into the framework above: Would it dislodge evidence destined to be left hidden, or would it constitute a punishment for failure to take a civilizing step? When courts suppress evidence because police violate knock-and-announce, it is virtually always the case that the circumstances in play would satisfy the inevitable discovery exception -- if this exception applied.
Indeed, suppose that, in a given case, the inevitable discovery rule is not satisfied, for a warning and announcement of purpose would likely have led to the loss of evidence. In such a case, that very probability would justify a no-knock entry and thus remove the police conduct from the class of constitutional violations altogether. Police who can show that knocking and announcing would compromise the search about to take place (either evidentiarily or safety-wise) can accordingly dispense with the requirement.
Another way of saying this is to suggest that if the inevitable discovery exception to suppression applies to knock-and-announce, then the exception will preclude the suppression of any evidence obtained as a result of a no-knock entry. The failure to knock-and-announce will either be legal due to evanescent evidence (in which case the evidence should not be suppressed because there was no Fourth Amendment violation) or the failure to knock-and-announce will be illegal but will fall within the inevitable discovery doctrine and permit admission of the evidence on that ground.
Should Exclusion or Inevitable Discovery Govern No-Knock Cases?...
Beyond predicting what the Court will do, moreover, it seems right to bar application of inevitable discovery to the knock-and-announce rule, just as it was right for the Court to bar its application to warrant violations. Absent exclusion, police will have very little incentive to obtain a warrant. Appearing before a magistrate takes extra time that could be spent in the pursuit of other crimes. And a lawsuit in which the plaintiff proves that police lacked a warrant (but otherwise had probable cause) will ordinarily yield little in damages -- certainly not enough to motivate police to change their behavior or to tempt plaintiffs to bring such suits in the first place. Furthermore, a lawsuit in which a plaintiff shows that police searched properly but failed to say "Police, we have a warrant" before entering will not likely yield much in the way of damages. As with warrantless searches, then, the exclusionary rule -- even in its punitive form -- may be necessary to the effective deterrence of violations." Full Article... [Mark Godsey]