[Infowarrior] - The Don't-Bother-to-Knock Rule

[Richard Forno]

http://www.nytimes.com/2006/06/16/opinion/16fri1.html?_r=1&oref=slogin&pagew
anted=print

June 16, 2006
Editorial
The Don't-Bother-to-Knock Rule

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.