Judge Tom Writes: Why the "Knock and announce" matters.

Just a few years ago, in a case from Wisconsin, the U.S. Supreme Court concluded that one of the reasons for upholding the constitutional significance of the “knock and announce” rule was so, among other things, a citizen could consent passively to the search, without violence, OR, be able to advise the police that they have the wrong place (something that happens with more regularity than you might think). Amazing how two Court appointees later, constitutional philosophy—and history--all changes.

Regarding “anonymous’” comments, they are somewhat misplaced. If the police can articulate to a judge sufficient facts to convince the judge that there are likely to be weapons at a place to be searched, or that the destruction of evidence is likely, the judge ALWAYS has the option of signing what’s called a “no-knock warrant”, allowing the police the element of surprise, when necessary. And, the law permits the police to make an instantaneous decision to turn a regular warrant into a no-knock warrant on the spot if the facts change, so long as they can show the judge later that changing to a no-knock was reasonable.

What is most troubling to me about this opinion is Scalia’s tinkering with the ‘Exclusionary Rule’. That rule was developed in 1914 in a case called U.S. v. Weeks. There, a unanimous Supreme Court held that the police should not be able to benefit by being able to collect evidence in a way that violated an individual’s constitutional rights. In his opinion, Justice Day wrote: “If [items] can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, … might as well be stricken from the Constitution.” Thus, the exclusionary rule is a deterrent against police misconduct. In other words, there is no benefit to the police in obtaining evidence that violates a person’s constitutional rights; such evidence is ‘excluded’ from being considered.

Scalia’s suggestion that the bad guy can sue the police is an idea that has been so often repudiated as ineffective, he should know better. No one likes it when a bad guy goes free over something like this. But, contrary to what the politicians may suggest, getting ‘off on a technicality’ happens less than 4 times out of a 100. I can live with that, if it means there maintains an effective ‘check’ on improper police behavior.

Like it or not, we have fewer 4th amendment rights now than we have for some time. For example, it used to be an individual NEVER had to talk to the police or answer any of their questions. Not even give their name. That changed a year ago in April when the Court ruled that if the police ‘stop’ an individual (non-traffic setting), the individual must now, on demand of the police, identify themselves. Trust me on this, I’ve been doing it a long time; soon, this will mutate into having to give not only your name, but your name and date of birth (the latter being necessary to ‘run’ your name through NCIC, the FBI computer. And, of course, your current address.) That’s just one case. I could go on.

What people need to understand is that it is the nibbling of the 4th amendment ‘apple’ (the analogy I use with my students at the college) that is invidious. When the apple is gone, you can’t get it back. That’s why it is so important to have the RIGHT people appointed to the Supremes.

Finally, for those who say, “well, if you have nothing to hide, why not let the police search?” Every semester in my “Criminal Procedure and Civil Rights” course, about half of my students give me that line. I have since created a release form, that allows the police to search an individual and their homes and cars, day or night, whenever the police want. I offer it to those students, with the promise that once they sign it 1) it is legal, and 2) I will forward it to all the local, county, state and federal law enforcement authorities for them to keep on file. Since they have nothing to hide….So far, I’ve been at the college 14 years, and I’ve had no takers.

In short, remember: The Court makes final decisions on the rules regarding police-citizen encounters. They really have nothing at stake (how likely is it that any of them will have a police encounter?) If this current case portends the philosophy of the newest appointees to the Court (Roberts and Alito), then for the rest of us, a chill wind blows.