United States v. Ankeny: remedying the Fourth Amendment's reasonable manner requirement.

• Author: Re, Richard M.

At 5:30 a.m., just before dawn, forty-four police officers converged on Kelly David Ankeny's two-story Portland residence to execute a warrant for his arrest. The officers in charge had spent weeks crafting a plan to arrest Ankeny, a convicted and wanted felon, for assaulting his estranged wife with a firearm. In a matter of seconds, heavily armed police broke down the building's first-floor doors, while others outside fired rubber bullets through the building's second-floor windows, spewing glass into the house and leaving holes in the ceiling and furniture. The first officer who encountered Ankeny pointed a rifle-mounted flashlight in his eyes and ordered him to the ground, just as a second officer blindly tossed a "flash-bang" grenade into the room. The grenade exploded near Ankeny's face, causing first- and second-degree burns. Meanwhile, police entering the second floor threw a flash-bang into an occupied bedroom, setting fire to a mattress and box spring that the police then threw out of a window. (1) After securing the occupants, including a pregnant woman and one-year-old infant, one of the officers sent the following text message: "BIG TIME FUN!! LOTS OF BROKEN GLASS, BAD GUY JUMPED ON THE FLASHBANG, GOOD TIME HAD BY ALL." (2)

In United States v. Ankeny, a divided Ninth Circuit panel declined to suppress the weapons that were discovered in Ankeny's residence and used to charge him with, inter alia, being a felon in possession of firearms. Over Judge Reinhardt's dissent, the majority held that suppression was an inappropriate remedy regardless of whether the search at issue was reasonable under the Fourth Amendment. Drawing on the Supreme Court's recent knock-and-announce decision in Hudson v. Michigan, (3) the Ankeny majority held that suppression at trial is never an appropriate remedy in the unusual cases where police carry out otherwise legal searches or seizures in an unreasonable manner. The reason, the court explained, is that the manner in which a search is conducted is not the but-for cause of any evidence ultimately obtained. This Comment supports Ankeny's outcome on different grounds. Instead of relying on causation analysis borrowed from Hudson, courts should develop arguments from restorative justice and deterrence to distinguish between scope- and manner-based Fourth Amendment violations. Further, courts should encourage responsible planning of law enforcement operations by finding liability when police fail to take reasonable steps to avoid risks to private persons and their property.

1. THE PROBLEM WITH ANKENY

   Ankeny relies on the Supreme Court's first holding in Hudson v. Michigan. Both opinions assert that suppression is an inappropriate remedy when the police "would have discovered" the evidence regardless of whether they committed the constitutional violation. (4) In Hudson, the Court deployed this principle to hold that suppression was uncalled for because the knock-and-announce violation in that case was not a "but-for cause of obtaining the evidence." (5) Even if the police had knocked and announced themselves, the Court held, "the police would [still] have executed the warrant they had obtained" and thereby discovered the same evidence. (6) Similarly, Ankeny held that the police "would have" found the incriminating weapons "[e]ven without the use of a flash-bang device, rubber bullets, or any of the other methods that Defendant challenges." (7) Ankeny summed up its counterfactual analysis by holding that "the discovery of the guns was not causally related to the manner of executing the search." (8)

   Although Hudson portrays its causation analysis in familiar "but-for" terms, the Fourth Amendment principle it asserts--and that Ankeny actualizes--is actually quite novel. Normally, illegally obtained evidence can be admitted if legally relevant intervening causes, such as voluntary choices, interrupt the causal connection between an illegal search and the acquisition of evidence. (9) But Ankeny did not involve such an attenuated causal link, as the police's entry and search led immediately to the evidence's discovery. Drawing on another exception to the exclusionary rule and on Seventh Circuit case law, (10) the district court in Ankeny held that the evidence at issue would inevitably have been discovered through "routine" police procedures. (11) This view, though consistent with the causality analysis ultimately offered in Hudson, was not supported by the Court's pre-Hudson inevitable discovery jurisprudence. In prior cases, the Court required a showing that, in the absence of the illegal search, a later and "wholly independent" legal search would have discovered the same evidence. (12) In Hudson and Ankeny, by contrast, there was no reason to think that a separate legal search was in the offing. And, of course, the mere possibility that a routine, legal search in principle could have occurred does not suffice to show that such a search was inevitable. (13)

   What makes Ankeny's causality analysis and the district court's approach to inevitable discovery problematic is their potential to disrupt a wide range of existing Fourth Amendment precedent. True, the police necessarily had to enter Ankeny's residence to discover the incriminating evidence therein, whereas the illegal aspects or features of the police's actual entry were not similarly necessary. In that sense, the manner of entry was indeed less causally essential to the discovery than the fact of entry. But there are many situations in which suppression is customarily required even though the constitutional violation at issue could have been avoided or would have been avoided if the police had simply employed routine procedures. As Judge Reinhardt and others point out, a literal reading of the causation analysis in Hudson or Ankeny would seem to preclude exclusion whenever police engage in warrantless but warrantable searches--even though the whole point of the warrant requirement is to force the police actually to obtain a warrant, and not just to have valid grounds for obtaining one. (14) At the same time, critics of the exclusionary rule have found hope in the possibility that Hudson's causation analysis might be read to curtail the warrant requirement. (15)

2. SCOPE AND MANNER VIOLATIONS

   Ankeny's decision not to offer suppression as a remedy for excessive or reckless force is uncontroversial among courts. (16) To justify this practice while preserving the logic behind the warrant requirement, courts should eschew Hudson's causality analysis and focus instead on a distinction between two types of Fourth Amendment rules. First are "scope constraints." These rules demarcate the bounds of the government's investigative authority, that is, the government's lawful right to search or seize a certain thing. (17) The warrant requirement and its myriad exceptions are...