- The Washington Times - Thursday, June 15, 2006

Evidence seized by police officers who have a warrant but fail to follow the “knock and announce” rule before entering a suspect’s home is still admissible in court, a divided 5-4 Supreme Court ruled yesterday.

Justice Antonin Scalia, writing for the majority, said a long-established knock-and-announce rule never was intended to protect a person’s right to prevent the government “from seeing or taking evidence described in a warrant.”

Justice Scalia, noting that Detroit police admitted that they violated the rule in a drug raid, said that regardless of the “misstep,” the officers would have seized the drugs and gun inside the house when executing the warrant.

The majority opinion said allowing judges to throw out such incriminating evidence “always entails … the risk of releasing dangerous criminals …” and would “generate a constant flood of alleged failures to observe the rule.”

“Another consequence … would be police officers’ refraining from timely entry after knocking and announcing … producing preventable violence against officers in some cases, and the destruction of evidence in many others,” Justice Scalia wrote.

Joining in the majority opinion were Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

The minority opinion, written by Justice Stephen G. Breyer, called the ruling “doubly troubling.” It “destroys the strongest legal incentive to comply with the Constitution’s knock-and-announce” and did so “without significant support in precedent.”

“I can find nothing persuasive in the majority’s opinion that could justify its refusal to apply the rule,” Justice Breyer said. “Without that unlawful entry they would not have been inside the house; so there would have been no discovery.

“Of course, had the police entered the house lawfully, they would have found the gun and drugs. But that fact is beside the point,” he said.

Justice Breyer was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

The Cato Institute called the ruling “regrettable.”

“Because of today’s decision, we can expect to see an even more pronounced increase in the use of illegal, military-style no-knock raids. And we can expect to see more innocent civilians wrongly targeted,” the Cato Institute said in a statement.

But Kent Scheidegger, legal director for the California-based Criminal Justice Legal Foundation, applauded the ruling, saying the court’s refusal to expand the exclusionary rule for evidence was “very important to law enforcement.”

“The knock-and-announce rule regulates how to conduct a search rather than whether a search can take place,” he said.

The case involved an Aug. 27, 1998, arrest by Detroit police who had obtained a search warrant for drugs and guns at the home of Booker Hudson. After entering the home, police found large quantities of drugs, including rock cocaine in Hudson’s pocket, and a loaded gun lodged between the cushion and armrest of the chair in which he was sitting.

Hudson was charged with unlawful drug and firearm possession. Later, he was convicted on drug charges, acquitted on the firearm charge and sentenced to 18 months’ probation. He challenged the arrest, saying the unannounced entry by police violated his Fourth Amendment rights against unreasonable searches and seizures.

In 1995, the Supreme Court ruled in an Arkansas case that the Fourth Amendment required police officers executing search warrants to knock and announce their presence before entering. The decision also recognized that in some circumstances a search still would be legal without a knock-and-announce by police.

Former Justice Sandra Day O’Connor, whom Justice Alito replaced, appeared to oppose the Detroit search when the case was argued in January and was expected to have voted against it.

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