The Ham Hock of Liberty

Thursday, June 15, 2006

So much for "respect for precedent"...

The Supreme Court today decided that the "knock and announce" rule for execution of warrants doesn't require exclusion of evidence obtained in violation of that rule.

The substance of that argument isn't particularly egregious; even a wild-eyed leftist such as myself can think it's not clear that the Fourth Amendment requires such a result.

What is troublesome, however, is that both Roberts and Alito voted to upturn over 90 years of relatively settled law on this issue. Remember, of course, that both men gave a lot of lip service to the sanctity of precedent and settled law during their confirmation hearings, in response to questions about Roe v. Wade. And yet, within months after being put on the bench, they've very enthusiastically upturned a long-standing line of case law.

Perhaps our Senators will remember this, the next time we hear "precedent" and "settled law" from a controversial nominee. But somehow I doubt it.

Update: I've read the SCOTUS opinion in this case. The majority, concurrence and dissent are all fairly persuasive and well-argued. There are a few problems with Scalia's opinion, though. The biggest one is the majority's claim that even without the use of the exclusionary rule, there are still realistic incentives for police to comply with the law, including civil lawsuits and "better training of police" in recent years. The dissent points out that the majority basically pulls these claims out of thin air, and I think they're right.

In jusifying the wholesale tossing of the exclusionary rule for knock-and-announce violations, the majority's main argument is that the privacy and liberty interests protected by the knock-and-announce rule won't be furthered by the remedy of the exclusionary rule. They do a lot of hair-splitting, but they have a decent argument; the interests involved are different than those for, say, protecting against warrantless searches. However, the dissent rightfully points out, imo, that this sort of distinction is new to the exclusionary rule jurisprudence, which is primarily about giving the Fourth Amendment some meaning, instead of making it purely optional. The majority is significantly deviating from precedent in this area.

Fortunately, this decision probably won't change police behavior too radically, as the knock and announce rule tends to help keep them safe as much as anything else. Most police probably realize the extra danger they're putting themselves in by busting down doors unannounced, and I imagine will continue to knock and announce, except when they have reason to believe that doing so would let a suspect destroy evidence...which was legal for them to do before this case, anyway.

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