Technical knockout: Hudson v. Michigan and the unfortunate demise of the knock-and-announce rule.

• Author: Gutin, Daniel A.

While the machinery of law enforcement ... ha[s] changed dramatically since the Fourth Amendment became part of the Nation's fundamental law in 1791, what the Framers understood then remains true today--that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy. (1)

1. INTRODUCTION

   In Hudson v. Michigan, (2) the Supreme Court faced the question of whether evidence seized following a violation of the "knock-and-announce rule" (3) should be admissible at trial. In a 5-4 opinion that found the Roberts Court divided along ideological lines, (4) the majority held that suppression is never warranted on the basis of an unannounced entry. The consequences of this regrettable decision cannot be overstated. By denying the exclusionary remedy to defendants whose homes have been invaded without adequate notice, the Court effectively eliminated any incentive for police to comply with the knock-and-announce rule, which has been a fixture of American law since the nation's founding. Absent the threat of a genuine sanction to compel obedience, police now have carte blanche to burst through citizens' doors unannounced, violating the privacy and sanctity of the home without meaningful consequence.

   This Note argues that Hudson was wrongly decided for at least five reasons. First, in reaching its decision, the majority ignored controlling precedent. This is troubling, not only in that it facilitated the ill-conceived conclusion ultimately arrived at by the majority, but also because by ignoring its own mandates, the Court damages its legitimacy in the eyes of the public. Second, the majority's analysis relied heavily on a flawed causation argument grounded in exceptions to the exclusionary rule that were not even available under the facts of the case. Third, the majority did not give adequate weight to the interests protected by the knock-and-announce rule, including the privacy of the home, which before Hudson, had always been regarded as sacrosanct. Fourth, the majority mistakenly relied on the social costs associated with suppressing evidence seized after a knock-and-announce violation as an argument against doing so. The costs the majority identified are not the result of the knock-and-announce or exclusionary rules; rather, they flow from the Fourth Amendment's prohibition of unreasonable searches and seizures. Thus, the "social cost" arguments advanced by the majority were in actuality thinly veiled attacks on the Fourth Amendment itself. Finally, the majority's contention that alternative measures can ensure compliance with the knock-and-announce rule--including civil liability and increased police professionalism--simply ignores reality. There is no evidence that the threat of civil liability deters police from violating the knock-and-announce rule, and the notion that today's allegedly more disciplined police force is less likely to violate the requirement is belied by a continuing pattern of abuses.

   Part II of this Note provides some background on the knock-and-announce rule, while Part III introduces the concept of the exclusionary rule, including two of its major exceptions. Part IV briefly describes the facts of Hudson, leading into Part V, which examines in detail the criticisms of the majority decision outlined above. Part VI concludes that the Hudson decision represents a damaging setback to the Fourth Amendment and the vital interests it was designed to protect.

2. BACKGROUND: THE KNOCK-AND-ANNOUNCE RULE

   1. Elements and Purpose of the Rule

      Most people have probably heard the oft-quoted phrase, "A man's house is his castle." What many probably do not know, however, is that the phrase is not simply an adage. Rather, it describes the longstanding respect of the law, both in this country and in England, for the sanctity of the home and the notions of personal privacy that it embodies. (5) The knock-and-announce rule is the principal legal norm that for hundreds of years has given effect to householders' expectations of privacy by ensuring that police do not burst into their homes without warning. (6)

      In its common formulation, the rule has two components and protects three interests. First, it requires that police knock, announce their presence and authority, (7) and expressly demand admittance (8) before entering a home to conduct a search or to make an arrest. (9) Second, even after this initial announcement is made, officers must wait a "reasonable" amount of time before forcing their way in. (10) Although some have argued that the protections afforded by the rule are trivial, (11) it is usually described as serving at least three important purposes: (1) it allows citizens to comply with police authority voluntarily, thereby preventing unnecessary and potentially violent confrontations; (2) it helps avoid preventable destruction of property; and (3) it protects citizens' privacy interests, specifically the privacy of the home. (12)

      During the twentieth century, many states incorporated the common law knock-and-announce rule into their statute books. (13) Currently, a majority of American jurisdictions have either case law or statutes that require the police to knock and announce before entering a home. (14) Additionally, in 1917 Congress enacted 18 U.S.C. [section] 3109 (15) which obliges all officers of the federal government to comply with the knock-and-announce requirement as well. (16)

   2. History in the Supreme Court

      Before Hudson, the Supreme Court had already addressed various aspects of the knock-and-announce rule in a series of decisions beginning in the late 1950s and continuing into the late 1990s. The first of these was Miller v. United States, (17) where the Court reversed the defendant's conviction after police entered his apartment and seized evidence without adequately announcing themselves. Although one of the arresting officers knocked on the apartment door and replied, "Police," in a low voice after being asked to identify himself by the defendant, the Court found that his actions were insufficient to demonstrate compliance with the rule. (18) Writing for the Court, Justice Brennan concluded that the officer's muffled statement did not constitute the requisite "notice in the form of an express announcement ... of [his] purpose for demanding" entry. (19) Consequently, the Court found the officers' entry to have been illegal and ordered the suppression of all evidence they had subsequently obtained. (20)

      In Wong Sun v. United States, (21) decided five years later, the Court reversed the defendant's conviction based on misrepresentations made by the arresting officer regarding his purpose for requesting entry. (22) As in Miller, the officer in Wong Sun knocked before entering the defendant's home. However, when the defendant (who owned a laundry) opened the door in response, the officer initially pretended that he was a customer who had come to pick up his cleaning. It was only after the defendant told him to come back later and tried to shut the door, that the officer produced his badge and properly identified himself. (23) The Court found that the officer--a federal narcotics agent--had not met his obligations under the federal knock-and-announce statute in that he had "affirmatively misrepresented his mission" and "never adequately dispelled the misimpression engendered by his own ruse. "(24) Accordingly, the Court again ordered the incriminating evidence suppressed. (25)

      Ker v. California, (26) decided the same year as Wong Sun, was the next knock-and-announce case to come before the Court. This time, rather than knocking, police obtained an electronic passkey for the defendant's apartment, unlocked the door, and walked in. Inside, officers conducted a warrantless search and discovered large quantities of marijuana, which were later introduced at the defendant's trial. Ultimately, the defendant's conviction was affirmed. However, in the course of its opinion, the Court discussed the knock-and-announce rule's relationship to the Fourth Amendment, which had not yet been directly addressed. Unfortunately, the Court's decision was fractured and confusing. (27)

      In Justice Clark's plurality opinion, he voted to uphold the conviction on the grounds that under "the particular circumstances of th[e] case the officers' method of entry ... was not unreasonable under the standards of the Fourth Amendment." (28) Thus, Clark seemed to assume that the legality of a police entry should be analyzed under the reasonableness standard of the Fourth Amendment. Reaching the opposite result, Justice Brennan found the search to have been illegal "because the unannounced intrusion of the arresting officers into the[] apartment violated the Fourth Amendment." (29) Hence, the Court appeared to signal its belief that the knock-and-announce rule was of constitutional dimensions. However, it stopped short of expressly incorporating it into the Fourth Amendment.

      In spite of having hinted in Ker that the knock-and-announce rule was constitutionally mandated, the Court decided its next knock-and-announce case, Sabbath v. United States, (30) based on a construction of the federal knock-and-announce statute. The officers in Sabbath knocked on the defendant's apartment door but received no response. They then opened the door (which was closed but unlocked) and entered, notwithstanding the fact that they had no search or arrest warrant. The defendant was arrested for cocaine trafficking and subsequently convicted after his motion to suppress was denied by both the trial and appellate courts. (31) However, the Supreme Court reversed, concluding that "[a]n unannounced intrusion into a dwelling ... is no less an unannounced intrusion whether officers break down a door ... or, as here, open a closed but unlocked door." (32)

      Thirty-two...