ACLU ally on "No Knock" Case: Cato Institute

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ACLU ally on "No Knock" Case: Cato Institute

Post by RebLem » Fri Jun 16, 2006 7:24 am

It looks like the ACLU has an ally in the very conservative Cato Institute on the issue of "No Knock" searches. Found this on the Cato Institute website--

Court Upholds Police Evidence in "No-Knock" Searches

Thursday 15 June 2006

Today, the Supreme Court ruled that police can use evidence collected with a warrant even if officers fail to knock before entering a home. Radley Balko, a Cato policy analyst and author of the upcoming Cato White Paper "Overkill: The Rise of Paramilitary Drug Raids in America," says, "The Supreme Court's decision in the case of Hudson v. Michigan is regrettable....Because of today's decision, we can expect to see an even more pronounced increase in the use of illegal, military-style no-knock raids. And we can expect to see more innocent civilians wrongly targeted." Justice Stephen Breyer's dissenting opinion cites Balko's recent Slate article about the stakes involved in this case.

http://www.cato.org/homepage_item.php?id=291
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Re: ACLU ally on "No Knock" Case: Cato Institute

Post by Corlyss_D » Fri Jun 16, 2006 1:07 pm

RebLem wrote: very conservative Cato Institute
It's the very libertarian Cato Institute. Libertarians tend to be more conservative on some issues than Republicans, esp. those involving intrusion of government into daily lives of Americans. For example, they are very hostile to cultural conservatism, believing that none of those issues are worthy of governmental action.
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Post by Ralph » Fri Jun 16, 2006 9:03 pm

A number of states will choose not adopt the SUpreme Court's standard for "No Knock" searches. New York law takes the opposite position from the Court's. It will be challenged again but if our Court of Appeals reaffirms the past doctrine on state constitutional grounds nothing will change.
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Post by RebLem » Fri Jun 16, 2006 10:48 pm

Ralph wrote:A number of states will choose not adopt the SUpreme Court's standard for "No Knock" searches. New York law takes the opposite position from the Court's. It will be challenged again but if our Court of Appeals reaffirms the past doctrine on state constitutional grounds nothing will change.
Ralph, I really would appreciate your expert analysis of Justice Kennedy's opinion in this case. As I understand it, he agreed with the majority on the particular case in question, but did not abandon the "no knock" rule wholesale as the other 4 justices in the majority did. I don't quite understand the logical route by which he accomplished this. Your insight and analysis is sorely needed here.

It does seem to me that this case is a prime example of what Potter Stewart, the last true conservative in American public life, feared most.
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Post by Ralph » Sat Jun 17, 2006 5:15 am

RebLem wrote:
Ralph wrote:A number of states will choose not adopt the SUpreme Court's standard for "No Knock" searches. New York law takes the opposite position from the Court's. It will be challenged again but if our Court of Appeals reaffirms the past doctrine on state constitutional grounds nothing will change.
Ralph, I really would appreciate your expert analysis of Justice Kennedy's opinion in this case. As I understand it, he agreed with the majority on the particular case in question, but did not abandon the "no knock" rule wholesale as the other 4 justices in the majority did. I don't quite understand the logical route by which he accomplished this. Your insight and analysis is sorely needed here.

It does seem to me that this case is a prime example of what Potter Stewart, the last true conservative in American public life, feared most.
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Post by Ralph » Sat Jun 17, 2006 9:07 pm

RebLem wrote:
Ralph wrote:A number of states will choose not adopt the SUpreme Court's standard for "No Knock" searches. New York law takes the opposite position from the Court's. It will be challenged again but if our Court of Appeals reaffirms the past doctrine on state constitutional grounds nothing will change.
Ralph, I really would appreciate your expert analysis of Justice Kennedy's opinion in this case. As I understand it, he agreed with the majority on the particular case in question, but did not abandon the "no knock" rule wholesale as the other 4 justices in the majority did. I don't quite understand the logical route by which he accomplished this. Your insight and analysis is sorely needed here.

It does seem to me that this case is a prime example of what Potter Stewart, the last true conservative in American public life, feared most.
*****

The issue of "Knock and Announce" was never before the Court. As Justice Scalia explains and Justice Kennedy amplifies, the historic preference is for Knock and Announce and the Fourth Amendment makes that very old principle a continuing constitutional mandate.

The sole issue was whether the clear violation of procedure made application of the suppression doctrine necessary. Since deterrence is the main goal of suppression (as the Court has held many times), the Court found and Justice Kennedy concurred that the violation in the Michigan case was not part of a wider pattern. Thus there is no need to use suppression as a deterrent to possible police misconduct.

Justice Kennedy's opinion amplifies and underscores the continuing importance of a balanced test in determining whether suppression must be applied.
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Post by Ralph » Sat Jun 17, 2006 9:09 pm

From The New York Times:

June 16, 2006
Court Limits Protection Against Improper Entry
By LINDA GREENHOUSE

WASHINGTON, June 15 — Evidence found by police officers who enter a home to execute a search warrant without first following the requirement to "knock and announce" can be used at trial despite that constitutional violation, the Supreme Court ruled on Thursday.

The 5-to-4 decision left uncertain the value of the "knock-and-announce" rule, which dates to 13th-century England as protection against illegal entry by the police into private homes.

Justice Antonin Scalia, in the majority opinion, said that people subject to an improper police entry remained free to go to court and bring a civil rights suit against the police.

But Justice Stephen G. Breyer, writing for the dissenters, said the ruling "weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection." He said the majority's reasoning boiled down to: "The requirement is fine, indeed, a serious matter, just don't enforce it."

The decision followed a reargument less than a month ago, with the newest justice, Samuel A. Alito Jr., evidently casting the decisive vote. Justice Breyer's dissenting opinion was clearly drafted to speak for a majority that was lost when Justice Sandra Day O'Connor left the court shortly after the first argument in January.

The justices' lineup in this case, which upheld a Detroit man's conviction for drug possession, may become a familiar one as the court proceeds through its criminal-law docket. In addition to Justice Alito, those who joined the majority opinion by Justice Scalia were Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Anthony M. Kennedy. Justice Breyer's dissenting opinion was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

The decision answered a question that the court had left open in 1995, when it held in a unanimous opinion by Justice Thomas that the traditional expectation that the police should knock and announce their presence was part of what made a search "reasonable" within the meaning of the Fourth Amendment. The amendment bars unreasonable searches.

In that case, Wilson v. Arkansas, the court declined to say what the remedy should be for a violation of the knock-and-announce rule. Ordinarily, evidence that is seized illegally — in the absence of a warrant, for example — may not be used at trial, under what is known as the exclusionary rule.

By a strong majority, most state and federal courts that have considered the issue have applied the exclusionary rule to violations of the knock-and-announce requirement. In its decision on Thursday in Hudson v. Michigan, No. 04-1360, the Supreme Court upheld a ruling by the Michigan Court of Appeals, one of the few courts to have rejected the exclusionary rule in this context.

In the case, the Detroit police had a warrant to search for drugs in the home of Booker T. Hudson Jr. At his unlocked door, they announced their presence, but did not knock and waited only three to five seconds before entering, not the 15 to 20 seconds suggested by the Supreme Court's precedents.

Had the police observed a longer wait, they would have executed the search warrant and found the evidence anyway, Justice Scalia said. That made the connection between the improper entry and the discovery of the evidence "too attenuated" to justify the "massive remedy of suppressing evidence of guilt."

Justice Scalia said the knock-and-announce rule was designed to protect life, property and dignity by giving the homeowner time to respond to the knock and eliminating the need for the police to break down the door. But he said the rule has never protected "one's interest in preventing the government from seeing or taking evidence described in a warrant."

Throughout his opinion, Justice Scalia made clear his view that the right at issue was a minimal, even trivial, one — "the right not to be intruded upon in one's nightclothes," he said at one point — that could not hold its own when balanced against the "grave adverse consequences that exclusion of relevant incriminating evidence always entails."

The majority opinion was sufficiently dismissive of the exclusionary rule as to serve as an invitation to bring a direct challenge to the rule in a future case.

Justice Scalia surveyed changes in the legal landscape since 1961, when the court in the landmark case Mapp v. Ohio made the exclusionary rule binding on the states. Noting that the purpose of the exclusionary rule was to deter constitutional violations by making them costly for the prosecution, Justice Scalia said there was less need for deterrence today, when the police are better trained and when the ability to bring civil rights suits against the government has greatly expanded. Under current federal law, he noted, successful civil rights plaintiffs are reimbursed for their attorney fees.

The conditions that made deterrence necessary "in different contexts and long ago" no longer exist, Justice Scalia said, adding that a strict application of the exclusionary rule as envisioned by the court in 1961 "would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago."

It is rare to find Justice Scalia, a self-described "originalist," incorporating evolving conditions into his constitutional analysis. Almost always, when the court in a constitutional case takes account of changing conditions, the result is an expansion of constitutional rights, rather than, as Justice Scalia advocated in this case, a contraction.

One puzzling aspect of the decision was a concurring opinion by Justice Kennedy, who said that he wished to underscore the point that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." Nonetheless, he signed the part of Justice Scalia's opinion that suggested that the exclusionary rule rested on an increasingly weak foundation.

Justice Breyer argued that "the court destroys the strongest legal incentive to comply with the Constitution's knock-and-announce requirement. And the court does so without significant support in precedent."

He called the majority's argument "an argument against the Fourth Amendment's exclusionary principle itself," adding, "And it is an argument that this court until now has consistently rejected."
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Post by Corlyss_D » Sun Jun 18, 2006 12:09 pm

Justice Breyer wrote: Constitution's knock-and-announce requirement.
:roll: I searched my copy of the Constitution and couldn't find even "knock" much less "knock-and-announce." Must have been one of those "penumbra" things. Whenever I see the court saying that something has to be "inferred" from the wording of the constitution, but is plainly not there, I think maybe we're dealing with a court that wishes it were the Boss of Everything. I've always thought the exclusionary rule was a krock (an interesting insight into their ability to add and to follow election returns but a legal krock), no matter how long it has been around (45 some years). Maybe it's weak reasoning will eventually go the way of the weaker reasoning of Roe v. Wade. And maybe someday, the written words of the constitution, like "no law" and "nor shall private property be taken for public use, without just compensation" will mean more than silly and dangerous penumbras.
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Post by Barry » Sun Jun 18, 2006 1:01 pm

Corlyss_D wrote:
Justice Breyer wrote: Constitution's knock-and-announce requirement.
:roll: I searched my copy of the Constitution and couldn't find even "knock" much less "knock-and-announce." Must have been one of those "penumbra" things. Whenever I see the court saying that something has to be "inferred" from the wording of the constitution, but is plainly not there, I think maybe we're dealing with a court that wishes it were the Boss of Everything. I've always thought the exclusionary rule was a krock (an interesting insight into their ability to add and to follow election returns but a legal krock), no matter how long it has been around (45 some years). Maybe it's weak reasoning will eventually go the way of the weaker reasoning of Roe v. Wade. And maybe someday, the written words of the constitution, like "no law" and "nor shall private property be taken for public use, without just compensation" will mean more than silly and dangerous penumbras.
Couldn't disagree more. This particular failure to knock and announce may not have been part of a larger pattern by the police in that locality, but it sure as hell is more likely to become one now that this ruling has been handed down. And what good is the rule if there are no consequences for violating it?
The Bill of Rights has to be open to inference, especially with something as open to a wide array of interpretations as the fourth amendment, if it's to have relavence in today's society. I can't imagine that amendment not encompassing a "right of privacy," albeit not an unlimited one.
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Post by Barry » Sun Jun 18, 2006 1:14 pm

I should add that I support the right of the administration to track calls and listen in on those they are reasonably sure are between al quaeda or other terrorist groups and their U.S. contacts while. Something that can be demonstrated to be related to national security, especially during wartime, needs to be held to a different standard than domestic police matters like the one involved in this case.
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Post by Corlyss_D » Sun Jun 18, 2006 1:18 pm

Barry Z wrote:And what good is the rule if there are no consequences for violating it?
That's what civil suits are for. That's the consequence: make 'em pay money damages. The perp can bank the money against his release from prison.
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Post by Ralph » Sun Jun 18, 2006 4:29 pm

Corlyss_D wrote:
Justice Breyer wrote: Constitution's knock-and-announce requirement.
:roll: I searched my copy of the Constitution and couldn't find even "knock" much less "knock-and-announce." Must have been one of those "penumbra" things. Whenever I see the court saying that something has to be "inferred" from the wording of the constitution, but is plainly not there, I think maybe we're dealing with a court that wishes it were the Boss of Everything. I've always thought the exclusionary rule was a krock (an interesting insight into their ability to add and to follow election returns but a legal krock), no matter how long it has been around (45 some years). Maybe it's weak reasoning will eventually go the way of the weaker reasoning of Roe v. Wade. And maybe someday, the written words of the constitution, like "no law" and "nor shall private property be taken for public use, without just compensation" will mean more than silly and dangerous penumbras.
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Did you take Criminal Procedure? The penumbra concept is attached to the idea of rights that must be, the Court has held, corrolary to those enumerated. NO Fourth Amendment Supreme Court has ever been based on penumbra theory. The language of the Fourth Amendment is the source for determining whether a search is "reasonable" or not and that can only be decided within a specific fact pattern.

"Knock and Announce" goes back to English common law way before our Constitution and was the law in all colonies and early states prior to 1787. To the best of my knowledge NO justice has ever questioned its incorporation into the Fourth and Fourteenth amendments.

One may agree with the Court in this case or be more persuaded by the dissent. What is intellectually untenable is to think Fourth Amendment jurisprudence to the combative world of unenumerated fundamental rights, e.g., privacy.
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Post by Ralph » Sun Jun 18, 2006 4:31 pm

Corlyss_D wrote:
Barry Z wrote:And what good is the rule if there are no consequences for violating it?
That's what civil suits are for. That's the consequence: make 'em pay money damages. The perp can bank the money against his release from prison.
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Civil rights actions by convicted persons never result in any kind of significant settlement or verdict absent invidious, e.g., race, discrimination and/or physical injury.

Civil actions by convicted persons for unlawful searches and seizures go nowhere (and I've practiced federal Civil Rights law for over three decades, never mind teaching the courses.
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Post by Corlyss_D » Sun Jun 18, 2006 5:10 pm

Ralph wrote:Did you take Criminal Procedure?
Of course I took it - it was required. I didn't pay any more attention to it than necessary to pass the test and leave it in my dust. I had no intention of practicing it, needing it, or using it, so your 30 years of practice in the field don't trump much.
Greenhouse wrote:In the case, the Detroit police had a warrant to search for drugs in the home of Booker T. Hudson Jr. At his unlocked door, they announced their presence, but did not knock and waited only three to five seconds before entering, not the 15 to 20 seconds suggested by the Supreme Court's precedents.
So let me get this straight: 7 hundred years of English common law comes down to the difference between 20 seconds and 5 seconds? Gimme a break! I'm thinking this was the court beginning to roll back the excessive devotion to Mapp v. Ohio and it's progeny, and a damn good thing too. And before you my comments for my ignorance of criminal law, Kermit Hall of Oxford Companion fame calls the reasoning of Mapp v. Ohio "questionable." So I guess it comes down to whose ox is gored. As a person more likely to be a victim of a crime than a criminal defendant, I say "bravo, SCOTUS!"
What is intellectually untenable is to think Fourth Amendment jurisprudence to the combative world of unenumerated fundamental rights, e.g., privacy.
I'm sure you're smacking me but I can't tell exactly how . . . 8)
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Post by Ralph » Sun Jun 18, 2006 6:41 pm

Corlyss_D wrote:
Ralph wrote:Did you take Criminal Procedure?
Of course I took it - it was required. I didn't pay any more attention to it than necessary to pass the test and leave it in my dust. I had no intention of practicing it, needing it, or using it, so your 30 years of practice in the field don't trump much.
Greenhouse wrote:In the case, the Detroit police had a warrant to search for drugs in the home of Booker T. Hudson Jr. At his unlocked door, they announced their presence, but did not knock and waited only three to five seconds before entering, not the 15 to 20 seconds suggested by the Supreme Court's precedents.
So let me get this straight: 7 hundred years of English common law comes down to the difference between 20 seconds and 5 seconds? Gimme a break! I'm thinking this was the court beginning to roll back the excessive devotion to Mapp v. Ohio and it's progeny, and a damn good thing too. And before you my comments for my ignorance of criminal law, Kermit Hall of Oxford Companion fame calls the reasoning of Mapp v. Ohio "questionable." So I guess it comes down to whose ox is gored. As a person more likely to be a victim of a crime than a criminal defendant, I say "bravo, SCOTUS!"
What is intellectually untenable is to think Fourth Amendment jurisprudence to the combative world of unenumerated fundamental rights, e.g., privacy.
I'm sure you're smacking me but I can't tell exactly how . . . 8)
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I posted Greenhouse's article because HER analysis is more in line with the dissent than MINE. There's no substitute for reading the COURT'S opinion.
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Post by Corlyss_D » Sun Jun 18, 2006 8:42 pm

Ralph wrote: There's no substitute for reading the COURT'S opinion.
How tiresome! I woodah, but nobody linked to it and I'm tired of looking up stuff since Reb has sent me on this snipe hunt about Diebold voting machines. Unbiased opinions are hard to find and CTRs weren't meant for reading long GAO reports.
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Post by Ralph » Sun Jun 18, 2006 8:43 pm

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