Hudson v. Michigan and the Future of Fourth Amendment Exclusion

Author:James J. Tomkovicz

I. Introduction II. The Logic Of The Hudson Opinions: Majority Premises, Concurring Qualifications, And Dissenting Challenges A. The Majority B. The Kennedy Concurrence C. The Dissent III. Tasting Hudson's Porridge: Possible Extremes And More Likely Middle Grounds A. Narrow Understandings Of Hudson:"Too Cold," "Too Small," "Too Soft" Morals Ofthe Story B. Broad Understandings Of Hudson: "Too Hot,"... (see full summary)

I am grateful to the Iowa Law Review for the invitation to participate in its spring 2008 Symposium. I am indebted to Dan Burrows, Casey Kannenberg, Kevin Kehe, and Jake Sadovsky for their excellent assistance in the preparation of this Article and to Jackie Hand for her always top-notch administrative assistance.

I. Introduction

Early in my contemplation of Hudson v. Michigan,1 I began to feel a bit like Goldilocks, the golden-haired child who trespassed into the home of the three bears, ate their food, broke their furniture, occupied their beds, and then fled when the bears returned.2 This feeling did not arise from a sense that the lessons of Hudson and the well-known fairy tale are similar. In fact, I have never been sure of the intended message of Goldilocks,3 and, as will be seen, I remain quite uncertain about the moral of Booker T. Hudson's story, as well. Instead, my feeling sprang from a distinct impression that-like the bowls of porridge that were too hot, too cold, and just right, the chairs that were too large (or hard), too small (or soft), and just right, and the beds that were too hard, too soft, and, once again, just right-the future of the exclusionary rule foreshadowed in Hudson might lie at one extreme, at the other, or somewhere in between.

The more I have studied Hudson and the intriguing variety of interpretations and uses of it by lower courts in the short time since it was handed down, the more confident I have become that it is susceptible to both extreme and middle-ground interpretations. It can be read as exceedingly narrow, as astonishingly broad, or as an exercise in balance and moderation. Thus, the Goldilocks analogy works, but only to a point. The more I have examined the opinion and its aftermath, the more convinced I am that Hudson does not offer three distinct, well-defined possibilities for the exclusionary rule's future. Rather, Hudson suggests a number of plausible destinations for the Fourth Amendment suppression remedy, which range across a broad spectrum.

The shortcomings of the Goldilocks analogy, which became apparent as I grew more and more familiar with Hudson's nuances, prompted me to search for a more appropriate fable. The story of the elephant and the six blind men quickly came to mind. In that tale, because each of the sightless men uses his hands to feel a different part of the beast, the result is a sextet of dramatically different descriptions.4 Each man's account is a most accurate description of the part he felt, but none comes remotely close to an accurate picture of the whole pachyderm. By focusing attention on each of the many facets of Hudson in isolation and closing one's eyes to its other aspects, it is possible to produce a similar array of depictions of the constituent parts, none of which captures the entire beast. In this Article, my object is to assume the roles of all six blind men and Goldilocks in order to provide an account that encompasses the entirety of Hudson. I will identify interpretations that I believe to be the most plausible versions of the exclusionary rule's future, ruling out those that, at present, seem too hot or cold, too large or small, or too hard or soft. Because Hudson is a signpost at a multi-pronged fork in the road-a marker that points in many directions at once-I will not offer a single, lucid prediction about the journey that lies ahead. For now, travelers in search of the twenty-first-century exclusionary rule will have to settle for a variety of possibilities and an assessment of their probabilities.

Although my primary focus will be on discerning and interpreting Hudson's significance for the future of the Fourth Amendment suppression remedy, evaluations and critiques of the Court's logic and of the future directions that I suggest will appear along the way. My views about the outcomes to be preferred and those to be avoided should be evident by the end. After this introduction, I begin with a thorough foundational description of the Hudson majority opinion and Justice Kennedy's concurrence, as well as a cursory depiction of the contrary reasoning and conclusions of the dissenters.5 I then dissect the opinion, first entertaining possible extreme interpretations of Hudson and explaining why these understandings seem ill-advised. Next, I discuss three understandings that lie between those extremes, describing their contours and exploring how each signifies likely future constrictions of the Fourth Amendment exclusionary rule. Finally, I offer a few modest, concluding reflections.

II. The Logic Of The Hudson Opinions: Majority Premises, Concurring Qualifications, And Dissenting Challenges

The main goal here is to lay the foundation for the analyses that follow by closely examining the premises and conclusions of the Hudson majority opinion and the significant contributions of Justice Kennedy's concurrence.

A. The Majority

Armed with a search warrant for drugs and guns, officers came to Booker T. Hudson's Michigan home, entered, and conducted a search authorized by the warrant.6 They found "[l]arge quantities of drugs" and a "loaded gun."7 Hudson was charged with "unlawful drug and firearm possession," and he "moved to suppress all the inculpatory evidence" from his trial.8 His sole claim was that the officers had violated his Fourth Amendment rights when, after announcing their presence, they waited a mere three to five seconds before entering his home.9 According to Hudson, the knock-and-announce rule required greater patience on the officers' parts. The trial court agreed that the officers had violated the knock-and-announce requirement and granted the suppression motion.10 The Michigan Court of Appeals reversed, "relying on Michigan Supreme Court cases holding that suppression is inappropriate" when officers fail to comply with the knock-and-announce rule before entering and searching a home pursuant to a warrant.11 After Hudson was convicted of possessing drugs, the court of appeals rejected his renewed Fourth Amendment claim, and the Michigan Supreme Court denied review.12 The single issue before the U.S. Supreme Court was "whether violation of the 'knock-and-announce' rule requires the suppression of all evidence found in the search."13

The majority opinion began with a prefatory sketch of the "ancient" heritage of the "common-law principle that law enforcement officers must announce their presence and provide residents with an opportunity to open the door"14 and of the Court's relatively recent conclusion, in Wilson v. Arkansas,15 that the edict of the common law "was also a command of the Fourth Amendment."16 Justice Scalia observed that the rule was "not easily applied," that there were "many situations" in which exceptions rendered announcement unnecessary, and that the showing needed to justify exemption was not demanding.17 The majority then asserted that, because the "'reasonable wait time' standard" that governed the putative violation in Hudson was "necessarily vague," it is "unsurprising" that officers will generally be "uncertain how long to wait."18 The Court then expressed relief that Michigan had conceded a violation in this case-making it unnecessary to decide whether the officers' delay was too brief-and made it clear that the sole concern in Hudson was an issue reserved in Wilson: "whether the exclusionary rule is [an] appropriate [remedy] for violation of the knock-and-announce requirement."19

The Court then launched into the resolution of this question. Justice Scalia first described the 1914 adoption of the Fourth Amendment exclusionary rule for federal courts in Weeks v. United States}20 as well as Mapp v. ohio's21 1961 application of that rule to the states as a principle of due process.22 He then set the tone for the ensuing analysis by starkly declaring that, despite the rulings in Weeks and Mapp, "[s]uppression of evidence . . . ha[d] always been [the Court's] last resort, not [its] first impulse."23 Drawing support from several post-Mapp opinions, the Court laid a further foundation of hostility by observing that the substantial costs that exclusion imposes on society24 had led the Court to place a "'high obstacle'" in the path of those seeking suppression and to reject "'[i]ndiscriminate application' of the rule," confining it to situations where it is most effective and where the benefits justify the steep price exacted.25 Contrary to unguarded dicta in Mapp that "suggested wide scope for the exclusionary rule," subsequent opinions had rejected a "reflexive" approach that would deem all evidence obtained from violations of the Fourth Amendment inadmissible in court.26 Rather, the modern approach treats the unconstitutionality of a search or seizure and the appropriateness of evidentiary exclusion as quite distinct inquiries.27 At this point, the majority turned to the specific grounds for refusing to extend the exclusionary rule to the evidence found in Hudson's home after the officers' concededly too hasty entry. Justice Scalia detailed three independent bases for denying suppression. The first ground was that the unconstitutionality-the entry without waiting a reasonable period after announcement-had no causal connection to the discovery of drugs and guns in the home.28 Put simply, "the constitutional violation of the illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant . . . and . . . discovered the gun and drugs inside the house."29

Because but-for causation between an illegality and the acquisition of evidence is essential for invocation of the exclusionary rule,30 Justice Scalia could have ended his opinion at this point.31 His conclusion about the absence of a causal connection between the knock-and-announce violation and the discoveries in the home foreclosed application of the Mapp rule to this case. Justice Scalia continued, however, turning to additional,...

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