Don't knock them until we try them: civil suits as a remedy for knock-and-announce violations after Hudson v. Michigan.

• Author: Papik, Jonathan

The sight of law enforcement officers knocking on a door and yelling "Police!" is more than just television drama. In fact, the idea that police should knock and announce their presence before entering is an ancient requirement that has its roots in the English common law. (1) The requirement was adopted at the time of this country's founding and has been more recently recognized as an "element of the Fourth Amendment reasonable test." (2) The Supreme Court has given content to the requirement by recognizing exceptions and outlining its parameters. (3) Until recently, however, the Court had not addressed the proper remedy for those situations in which officers do not properly knock and announce their presence. The Supreme Court ended its silence on the matter in its decision last Term in Hudson v. Michigan. (4)

Police obtained a warrant to search the home of the defendant, Booker T. Hudson. (5) Officers went to the home to execute the warrant and announced their presence; after waiting "three to five seconds," they entered the home where they found drugs and a firearm. (6) Prosecutors brought state law charges against Hudson for drug and firearm offenses. (7) Hudson moved to suppress the evidence seized inside his home, claiming that his Fourth Amendment rights had been violated by the officers' failure to wait the constitutionally required time before entering his home. (8) The state trial court granted the motion. (9)

On appeal, the Michigan Court of Appeals reversed, citing two Michigan Supreme Court decisions, People v. Stevens (10) and People v. Vasquez. (11) The Michigan Supreme Court denied leave to appeal, (12) and Hudson was convicted of both offenses. (13) The Michigan Court of Appeals affirmed the conviction, and the Michigan Supreme Court again declined to review the case. (14) The United States Supreme Court granted certiorari. (15)

The Supreme Court affirmed Hudson's conviction. (16) Writing for the Court, Justice Scalia held that the exclusionary rule is not the proper remedy for "knock-and-announce" violations. (17) The opinion did not, however, overrule Court precedent regarding the constitutional nature of the knock-and-announce requirement. Rather, the Court began its analysis by noting the importance of the requirement in the common law and citing Wilson v. Arkansas, (18) which held that the knock-and-announce requirement forms part of the Fourth Amendment reasonableness inquiry. (19) Justice Scalia wrote that the rule, while required, is "not easily applied." (20) The rule is difficult to apply because the amount of time officers must wait is "necessarily vague," depending on the amount of time it would require the resident to dispose of suspected contraband. (21)

After reiterating the constitutional nature of the requirement, the Court considered whether its violation triggers the application of the exclusionary rule. It began by outlining the history of the exclusionary rule in the federal courts, tracing the evolution of the rule from "reflexive application" in Mapp v. Ohio (22) to a rejection of "its indiscriminate application" in United States v. Leon (23) and Pennsylvania Board of Probation and Parole v. Scott. (24) In particular, precedent required that a constitutional violation must be a "but-for" cause of discovering evidence to justify suppression. (25) The instant case did not meet that standard, the Court reasoned, because officers would have seized the evidence regardless of whether they properly knocked and announced. (26)

The majority also drew upon the Court's precedents regarding attenuation, under which the exclusionary rule is inapplicable if evidence was found "by means sufficiently distinguishable to be purged of the primary taint." (27) The concept of attenuation extends, Justice Scalia wrote, to situations in which "the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained" despite the presence of a direct causal connection. (28) Justice Scalia argued that because the knock-and-announce requirement does not protect an individual from having evidence described in a warrant taken from his or her home, the exclusionary rule does not protect the interest guaranteed by the Fourth Amendment and thus should not be applied. (29)

The Court cited Scott, which employed a balancing test to determine whether the exclusionary rule applies to particular types of Fourth Amendment violations, to bolster its view that the exclusionary rule was inapplicable. (30) Under the Scott test, the Court found that applying the exclusionary rule to knock-and-announce violations would result in substantial social costs. In addition to the usual cost associated with the exclusionary rule--releasing potentially dangerous criminals into society--suppressing evidence for knock-and-announce violations would "generate a constant flood of alleged failures to observe the rule" and produce myriad claims that the support for justification of a no-knock entry was inadequate. (31) Justice Scalia predicted that such a "flood" of litigation would be particularly problematic because of the inherent difficulties in determining the "reasonable wait time" in a given situation. (32)

In addition, the Court posited that civil suits...