Hudson v. Michigan: The Knock and Announce Rule and the Exclusionary Rule

Hudson v Michigan involves one simple question: whether the Supreme Court’s traditional knock and announce requirement for searches of a person’s home is subject to the exclusionary rule if violated. In other words, if the police come to your house to search it and barge right in without knocking on the door or announcing that they are there, will the evidence of crime that they subsequently find in your home be excluded from admissibility in court because it was obtained in violation of the amendment to the Constitution that protects against unreasonable searches and seizures? In Hudson, the Supreme Court answers that question no. The court declines to apply the exclusionary rule even though Michigan stipulated that their police violated the knock and announce rule.

As the court notes in its opinion, the idea that the peace officers should knock and announce their presence a reasonable time prior to forceful entry into a person’s home is an ancient rule of the English common law which has been codified in federal statutory law since 1917 and applied by the U.S. Supreme Court as required for reasonable searches and seizures since 1995 with the case Wilson v Arkansas. As a traditional custom among law enforcement officers, the practice is perhaps more ancient and more common than its requirement as a matter of law.

Quite reasonably, the court has also recognized a variety of exceptions to the knock and announce rule. These include situations in which there is a threat of violence to the enforcing officers or where the evidence they seek would probably be destroyed or irretrievably hidden if they announced their presence. Another exception is if knocking and announcing would be futile. Certainly too, though there is no court case about it, when a swat team is descending upon terrorists holding hostages, they do not and should not knock or yell first.

Nevertheless, was the Supreme Court right in saying that the knock and announce rule is not protected by the accompanying exclusionary rule? It is common in our courts that when a law enforcement agency violates the protections against reasonable search and seizure, the evidence they seize as a result is excluded so that the person often cannot be convicted of the crime of which they are accused. The reason for this is simple. It provides a deterrent. If law enforcement agencies know they cannot use the evidence they obtain illegally, they are far less likely to undertake illegal measures to obtain evidence. The exclusionary rule is often explained using the metaphor of “the fruit of the poisonous tree.” If a tree is inherently poisonous (i.e. illegal), the fruit that grows on it shouldn’t be eaten either. In other words, evidence gained from an illegal search should be thought of as illegal evidence and excluded from the courtroom. Many prosecutors have suggested that there should be a good faith exception to the exclusionary rule. If the police do not believe they are violating the Fourth Amendment, why should the evidence be excluded since the deterrent is no longer present in that instance, but the criminal wrongdoing still is. The argument for a good faith exception is a strong one. But is the argument against applying the exclusionary rule here a strong argument?

In Hudson, the Supreme Court distinguishes situations in which unlawful evidence is obtained by unlawful warrantless searches. There, the court says “citizens are entitled to shield their persons, houses, papers and effects from the government’s scrutiny.” (Hudson slip opinion, page 8.) The court feels that a search with a warrant conducted without knocking and announcing is different. While there are interests that the knock and announce rule is meant to protect, it is not designed to prevent the government from seeing or taking the evidence described in its warrant. As a result, the court believes that the exclusionary rule is inappropriate. The court feels that the possible violation of the Fourth Amendment involved in failing to knock and announce is not the actual cause of the seizure of the evidence since the evidence could have been lawfully seized under a warrant anyway. The court also believes that the deterrent’s benefits are outweighed by the social costs of the exclusionary rule in this instance. Knocking and announcing is an ambiguous requirement that requires “reasonableness” in its application. It exposes the officers involved to potential harm and allows perpetrators to hide or destroy evidence.

While the court’s arguments are rational and justifiable, I for one have difficulty agreeing with them. The problem is that if the exclusionary rule does not apply, it is unlikely in the current law enforcement environment that police will continue to knock and announce at all. Instead, whenever they are enforcing a warrant, they will simply break down your door and storm in. Why is that undesirable? For several reasons. First, the police do occasionally make mistakes. They do sometimes storm into the wrong apartment. While it is a minor hindrance, it is some hindrance against mistakes if they actually knock and announce their presence first. This at least allows the occupant of the apartment to react as an innocent person being victimized by a mistake. If armed men storm into your apartment or home and you don’t know that they’re the police or that they are coming, you may react in ways that the police will interpret as the actions of a guilty perpetrator, and the result may very likely be that the police will shoot you. Since this does occasionally happen, it is certainly a realistic fear. Can this unlikely event outweigh the need for the police to get at real perpetrators? Yes. Protecting innocent people is more important than getting at guilty people since the reason we go after guilty people is in order to protect innocent people. Protecting innocents should always come first. This is also why we consider people innocent until proven guilty and why we have standards of proof rather than merely assuming that anyone accused of a crime should be locked up unless they can justify their freedom.

In the modern world there are already many ways in which our privacy is legitimately fading away. Because so many of our acts and transactions involve other people, they are essentially public. As a result, our phone records and financial records may lawfully be viewed by the government or counted in government statistics despite peoples’ frequent desire to the contrary. This is especially true during the current war on terrorism. But, the long-time traditional protections of the home as a man’s castle, the protection against the use of hearsay, and the protection of the right to bear arms, these items must be protected and maintained despite the current war against terror and the government’s desperation to apprehend dangerous criminals. Today the government can see what we do inside our homes with infrared scopes. They can listen to our conversations in public places with long-range eavesdropping equipment, and they can see what goes on in our backyards by flying over our property. All of these things are normally considered lawful even though they were not possible in the past when the technology to execute such spying did not exist. Now that the possibility for such intrusion does exist, protecting the old traditional rights against exclusion becomes an even greater imperative. Certainly if the police are executing a warrant, they could use advanced technology to be sure that the alleged perpetrator is not disposing of evidence or arming himself. Using listening devices or infrared devices, they could determine if the evidence is being destroyed or if guns are being aimed. This would be expensive, but it would not be difficult. And, while there is some danger to officers by announcing their presence, they are protected by bulletproof vests and heavy weapons. Neither the average home owner nor the average criminal is reasonably going to provide armed resistance against the small army serving a warrant. While some criminals do remain unreasonable and do attempt to harm peace officers in the course of their lawful duties, that risk should not outweigh the interest of lawful citizens of being protected against immediate unannounced intrusion into their homes by the same armed band.

If the police do make a mistake and violate the Fourth Amendment by storming into someone’s home unannounced, there is no real deterrent against their actions if the exclusionary rule disappears. The damages that would be awarded against the police department in a lawsuit for a house storming would be de minimis. Many people could not afford the protracted legal battle against the government necessary to obtain the damages. And the damages would likely be far smaller than the attorney’s fees necessary to take the case forward. The only way such continued unannounced storming will be prevented is if there is no reason for the police to engage in such assaults in any but the most extraordinary circumstances. The only way to prevent them from having a reason to engage in these assaults is to apply the exclusionary rule. If evidence cannot be gotten by such rude conduct, there will be no reason to engage in the conduct.

I fully sympathize with the police and the difficulty and stress of their situation. But as an innocent public citizen, I am also afraid of unannounced accidental searches of the wrong properties. Based on the stories in our newspapers during my lifetime, I do not believe such a fear is unreasonable or unfounded. As a result, I would have been happier if the Supreme Court had continued to link the exclusionary rule to the knock and announce rule.