The
Don't-Bother-to-Knock Rule
EDITORIAL, NYTimes on
the Web, June 16, 2006
The Supreme Court yesterday
substantially diminished Americans' right to privacy in their own homes.
The rule that police officers must "knock and announce" themselves before
entering a private home is a venerable one, and a well-established part of
Fourth Amendment law. But President Bush's two recent Supreme Court
appointments have now provided the votes for a 5-4 decision eviscerating this
rule.
This decision should offend anyone, liberal or conservative, who worries about
the privacy rights of ordinary Americans.
The case arose out of the search of Booker T. Hudson's home in Detroit in 1998.
The police announced themselves but did not knock, and after waiting a few
seconds, entered his home and seized drugs and a gun. There is no dispute
that the search violated the knock-and-announce rule.
The question in the case was what to do about it. Mr. Hudson wanted the
evidence excluded at his trial. That is precisely what should have
happened. Since 1914, the Supreme Court has held that, except in rare
circumstances, evidence seized in violation of the Constitution cannot be used.
The exclusionary rule has sometimes been criticized for allowing criminals to go
free just because of police error. But as the court itself recognized in
that 1914 case, if this type of evidence were admissible, the Fourth Amendment
"might as well be stricken."
The court ruled yesterday that the evidence could be used against Mr. Hudson.
Justice Antonin Scalia, writing for the majority, argued that even if police
officers did not have to fear losing a case if they disobeyed the
knock-and-announce rule, the subjects of improper searches could still bring
civil lawsuits to challenge them. But as the dissenters rightly pointed
out, there is little chance that such suits would keep the police in line.
Justice Scalia was also far too dismissive of the important privacy rights at
stake, which he essentially reduced to "the right not to be intruded upon in
one's nightclothes." Justice Stephen Breyer noted in dissent that even a
century ago the court recognized that when the police barge into a house
unannounced, it is an assault on "the sanctity of a man's home and the privacies
of life."
If Justice Sandra Day O'Connor had stayed on the court, this case might well
have come out the other way. For those who worry that Chief Justice John
Roberts and Justice Samuel Alito will take the court in a radically conservative
direction, it is sobering how easily the majority tossed aside a principle that
traces back to 13th-century Britain, and a legal doctrine that dates to 1914, to
let the government invade people's homes.
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