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A Supremely Scary Story

By Marianna Brown Bettman · September 13th, 2006 · Legally Speaking
One of the scariest trends I'm seeing from the high court is the gradual erosion of the Fourth Amendment protections against unreasonable searches and seizures.

In automobile stops and searches, that protection has vanished almost to the point of no return. But a person's house has always been considered to be in a different category -- somehow more worthy of protection. The familiar adage, "A man's (and now woman's) home is his castle," really speaks to the right of privacy, of being left alone by the authorities.

Earlier in last year's term, the high court refused to allow the police the right to enter and search a home at the wife's request, when her husband stood with her at the door and refused them entry.

In June 2001, Justice Antonin Scalia wrote a majority opinion holding that a thermal-imaging device aimed by police at a private home from a public street to detect the growth of marijuana plants inside was a search -- and one that violated the Fourth Amendment. In that decision, acknowledging the expectation of privacy, Scalia quoted from the court's own precedent.

"At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion," he wrote.

From another precedential case, he quoted, "We have said that the Fourth Amendment draws 'a firm line at the entrance to the house.' "

Scalia must have forgotten about these sentiments. He is the author of the end-of-term 5-4 Hudson v. Michigan decision, a superb example of the scary trend. The Hudson case was one of three cases that had to be reargued when Justice Sandra Day O'Connor left the bench, meaning the court was split 4-4, awaiting the tie-breaking vote of the newest justice, Samuel Alito.

The Hudson case came to the high court from Michigan. The Detroit Police had a warrant to search for drugs and guns at Hudson's house. What the police were supposed to do before entering was knock and announce themselves as police officers and wait a reasonable (meaning very short) time before entering. This is known as the knock-and-announce rule.

The purpose is to give a citizen the chance to prepare for the encounter, to preserve dignity and to avoid unnecessary violence and property destruction.

Actually, the rule has been around since the 13th century. You'd think that would mean something to an originalist like Scalia, but apparently originalism can go by the boards when it's inconvenient.

Anyway, the police entered Hudson's house without knocking or announcing and found a lot of drugs and a loaded gun. Hudson was arrested and charged with unlawful possession of drugs and a firearm. He moved to suppress all the evidence on the grounds of the wrongful entry -- an unreasonable search and seizure.

There was no disagreement among the justices that the police entry in the case was improper. The issue was what the consequences should be. Traditionally, with some exceptions, the answer has been to exclude the evidence at trial. The reason for such a drastic remedy is that over time, it became clear to the high court that the exclusionary rule, as it is known, was the most effective remedy to deter police misconduct.

But in Hudson, Scalia held that even though there was a Fourth Amendment violation in this case, the evidence didn't need to be excluded, because the connection between the improper entry and the later discovery of the evidence was "too attenuated."

Several aspects of his decision are disturbing. One is its tone. It is disparaging and disdainful. The other is the rationale. It is thoroughly unconvincing.

Scalia made it clear that, to him, the right being imposed upon was trivial -- no more significant than "the right not to be intruded upon in one's nightclothes." He found that the benefit of the exclusionary rule -- deterring future police misconduct -- was far outweighed by the costs of suppression of evidence, which he described as giving many defendants a "get out of jail free card." He believes the knock-and-announce rule could result in an increase in physical violence and destruction of evidence as a result of the required delay. He fails to mention, though, that many states have no-knock warrants to address that problem. There are also other exceptions to the knock-and-announce rule when such issues predominate.

Even to Scalia there does need to be some consequence for a constitutional violation. If not exclusion, what? Well, the right to sue the police. But as Justice Stephen Breyer points out in his lengthy and eloquent dissent, that remedy was discarded as woefully inadequate in 1961 by the high court in Mapp v. Ohio.

Scalia mentions two other points as contemporary deterrents to wrongful police behavior -- the increased professionalism of police forces and a new and effective emphasis on internal discipline. While both might be true, I don't find them convincing remedies for bad searches and seizures.

For the dissenters, Breyer pointedly emphasized that "alternative methods of enforcing the Fourth Amendment's requirements had failed," noting that Scalia had "failed to cite a single reported case in which a plaintiff had collected more than nominal damages solely as a result of a knock-and-announce violation." He worried that without the exclusionary rule, the police will ignore the knock-and-announce rule with impunity. But mostly, he criticized Scalia for belittling "the constitutional values, purposes and objectives underlying the knock and announce rule," writing that "over a century ago this Court wrote that 'it is not the breaking of his doors' that is the 'essence of the offense' but the 'invasions on the part of the government ... of the sanctity of a man's home and the privacies of his life."

In all of this, Justice Anthony Kennedy's position is curious. Since O'Connor's retirement, he is the swing vote on many important issues. He went along with most, but not all, of what Scalia wrote. But he felt constrained to emphasize the narrowness of the holding and that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt."

I have no idea why he thinks that. I think the exclusionary rule, in its broadest sense, is now in jeopardy. Scalia's disdain for the rule couldn't be more apparent. But he is no longer out on the fringes, dissenting on his own. That's why this is such a scary story.

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.


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