- The Washington Times - Thursday, May 18, 2006


Supreme Court justices sparred yesterday over police searches in a case that could signal a change in direction for the court after the arrival of two conservative members.

The court has been generally cohesive and congenial under new Chief Justice John G. Roberts Jr. and in the 31/2 months since Samuel A. Alito Jr. became the new associate justice. Earlier this week, for example, the justices ruled in four cases and were 9-0 in each.

They appeared fractured, however, as they debated for the second time whether police can enter a home without knocking and seize evidence for use at a trial.

The case may have a different outcome without retired Justice Sandra Day O’Connor. She seemed ready, when the case was first argued in January, to rule in favor of a Detroit man whose house was searched in 1998.

Justice Alito was confirmed to replace Justice O’Connor before the case was resolved. The new argument apparently was scheduled to give Justice Alito a chance to break a tie vote.

Justice Alito, a former appeals court judge and government lawyer, seemed more sympathetic to police. He asked tough questions of the attorney for Booker Hudson Jr., who was convicted of cocaine possession based on evidence found in the search. Justice Alito had no questions for government lawyers.

The case tests previous Supreme Court rulings that police armed with warrants generally must knock and announce themselves, lest they run afoul of the Constitution’s Fourth Amendment ban on unreasonable searches. The court has said that police can enter after giving people 15 to 20 seconds to get to the door.

In this case, officers called out their presence at Hudson’s door, then went inside 3 to 5 seconds later.

The ruling will be announced next month, and liberal justices declared that the stakes are high.

Justice Stephen G. Breyer said that if the court rules against Hudson, “we’d let a computer virus loose in the Fourth Amendment. … It strikes me as risky and unprecedented.”

Justice David H. Souter said the court has said “there is enough respect for a person’s home. … The police should not barge in like an invading army.”

On the other side, Chief Justice Roberts and Justice Antonin Scalia were sharply critical of Hudson’s claim that the evidence was connected to the improper search and could not be used against him.

Justice Alito also focused on whether there was a connection between the failure to knock and wait and the finding of evidence.

Justice Scalia, in response to Justice Alito’s questions, said the drugs would have been found either way. He also said the government acknowledged the mistake in the search and has a good argument that “the punishment for it should not be to let the criminal go.”

Another justice who could be crucial to the outcome is Justice Anthony M. Kennedy, a moderate swing voter. During the January argument, Justice Kennedy called the issue “troublesome,” but seemed most supportive of police.

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