Waiting for the Other Shoe: Hudson and the Precarious State of Mapp

Author:David A. Moran
Position::Associate Professor and Associate Dean for Academic Affairs, Wayne State University Law School

Introduction I. When Bad Things Happen to Good Cases: How Bad Timing Turned a Fourth Amendment Footnote into a Potential Blockbuster A. All According to Plan: Finding Booker T. Hudson, Jr. and the First Argument B. The Reargument: All About Mapp II. Twenty Months of Silence: When (If Ever) Will Mapp Be Tested? A. Why the Court Is Avoiding a Mapp Showdown for Now B. Forcing the Court's Hand: More... (see full summary)


Associate Professor and Associate Dean for Academic Affairs, Wayne State University Law School. As ofJuly 14, 2008, Clinical Professor, University of Michigan Law School.

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I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan1

On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States5 as I was when I published an article just three months after the Hudson decision came down.4 The Supreme court does not seem to be in a hurry to take on the exclusionary rule-at least not directly-and only a tiny handful of lower courts since Hudson have applied the reasoning of the Hudson majority to deny exclusion of evidence for constitutional violations other than the knock-and-announce rule.5

In this Symposium, then, I propose to do two different things. First, in the event that my worst fears are realized and Hudson comes to be seen as a historic case leading to a sea change in the law, I want to create a record of some of the background events that led to the decision so that future scholars might understand how it is that I came to litigate the Hudson case and how it is that I managed to lose it.

Second, I will review developments since Hudson in order to gauge the likelihood that my worst fears will be realized in the foreseeable future. In particular, I will look at the depressing effect Hudson seems to have had on the Court's Fourth Amendment docket, and I will examine the more aggressive approach to Hudson that a few lower courts have taken. I will also briefly examine the two Fourth Amendment cases the Court recently agreed to decide next term and consider whether either of those cases is likely to result in any further damage to the exclusionary rule.

Thus, my presentation will focus on the events leading up to Hudson and the fallout since Hudson, but I will not analyze the opinion, concurrence, or dissent in Hudson itself. I will leave that task to others, both because I have already published a fairly lengthy analysis of the various opinions in Hudson6 and because my involvement in the case makes it difficult for me to step back and reanalyze the decision with any objectivity, even now. Page 1727

I When Bad Things Happen to Good Cases: How Bad Timing Turned a Fourth Amendment Footnote into a Potential Blockbuster

If my worst fears are realized, scholars someday will be wondering, "What was Moran thinking when he brought this case to the Supreme Court?" This is my defense.

A All According to Plan: Finding Booker T. Hudson, Jr. and the First Argument

The first thing that needs to be understood as to how Hudson came to be is that the Michigan Supreme Court has been one of the nation's most consistently conservative courts since the late 1990s.7 Because conservative justices dominate, the court has, on occasion, been willing to go farther out on a limb to the right than any other court. In the criminal procedure area, this willingness to be an outlier resulted in two criminal procedure cases reaching the U.S. Supreme Court, Halbert v. Michigan? and Hudson. Since I was the (winning) attorney for the indigent defendant in Halbert, to understand why I got involved in Hudson requires me to say a word about Halbert.

In 2000, thanks to the Michigan Supreme Court's decision in People v. Bulger9 Michigan became the first and only state since 1963 to deny the assistance of counsel for first-tier direct appeals to most indigent defendants convicted of felonies.10 According to the Michigan Supreme Court, indigent defendants who plead guilty or nolo contendere to felonies are perfectly capable of figuring out how to file their own applications to appeal their convictions and sentences.11

I argued and lost Bulger in the Michigan Supreme Court, and I served as lead counsel in Halbert, where the U.S. Supreme Court overruled Bulger by a six to three vote. As I litigated the right-to-counsel cases in the lower federal courts and the Supreme Court, it became clear that the most important Page 1728 argument I had on my side was that no other state or federal court had gone as far as the Michigan Supreme Court had in denying counsel to indigents.

It was through this lens that I viewed the Michigan Supreme Court's 1999 decision in People v. Stevens1"2 as extremely vulnerable. In Stevens, the Michigan Supreme Court held, over the dissent of two justices, that evidence found inside a home following a knock-and-announce violation was not subject to the exclusionary rule because, according to the majority, had the police bothered to knock and announce pursuant to the warrant, they would have "inevitably discovered" the same evidence.13

At the time Stevens came down, no other state or federal court had ever held that exclusion was an unavailable remedy for a knock-and-announce violation. Indeed, the U.S. Supreme Court had itself twice excluded evidence following violations of the federal knock-and-announce rule14decades before the Court finally recognized in 1995 that the knock-and-announce rule is incorporated into the Fourth Amendment's reasonableness clause.15

Not only was Stevens an outlier, it was a harshly criticized outlier. Professor LaFave, for one, devoted several pages of his seminal Fourth Amendment treatise to excoriating the logic of the Stevens decision, characterizing the majority as adopting an "Alice-in-Wonderland version of inevitable discovery"16 under which the police can always claim, "'if we hadn't done it wrong, we would have done it right.'"17 Page 1729

I admit I was surprised when the Seventh Circuit issued a decision in 2002 adopting the logic of Stevens}9, But I still thought the Supreme Court, if given an opportunity to review the issue, would view Stevens as a radical misinterpretation of the inevitable discovery doctrine. My confidence was based on the fact that other state and federal appellate courts continued to routinely exclude evidence found after knock-and-announce violations, and at least ten of those courts had explicitly rejected the inevitable discovery argument that Stevens had accepted.19

I hope I can be forgiven, then, for thinking that Stevens was a prime candidate for overruling in the U.S. Supreme Court. Beginning in 2001, I decided to look for a case to accomplish just that.

As a law professor specializing in criminal procedure, I get invited to give a lot of speeches to groups of practicing criminal defense attorneys. Starting in 2001, no matter what the subject of my speech, I always threw in an aside in which I harshly criticized Stevens and then said something like, "And if any of you have a case with a clear knock-and-announce violation that you cannot win because of Stevens, give me a call and I'll file a cert petition for you."

In February 2005, just as I was preparing to argue Halbert, I received a call out of the blue from a Detroit attorney named Richard Korn. Mr. Korn told me that he had been at one of my speeches some years earlier, and he was wondering if my offer was still valid. He went on to explain that the Michigan Supreme Court had just denied his application for leave to appeal the conviction of his client, one Booker T. Hudson, Jr., who had been convicted of cocaine possession after a knock-and-announce violation. I agreed to take a look at the file.

When the file arrived a few days later, I realized that the case was the perfect vehicle to challenge Stevens. First, there was never any dispute that a knock-and-announce violation occurred since the officer who led the team that executed the warrant on Mr. Hudson's home candidly admitted in a suppression hearing that he had no information justifying dispensing with the requirement, that no one had knocked on the door, and that the police officers immediately burst through the door without waiting after yelling, Page 1730 "Police! Search Warrant!"20 Given this testimony, the prosecutor at the suppression hearing conceded that there was a knock-and-announce violation.21

A second reason I thought the case was ideal was that Mr. Hudson was convicted of a relatively minor offense, simple possession of five rocks of crack cocaine, for which he received no jail time at all. At the time of the raid, Mr. Hudson was a middle-aged man living with his wife in a single-family home in Detroit. I thought Mr. Hudson would be about as sympathetic as any criminal defendant trying to suppress evidence could be to the Court.

So I filed a petition for certiorari in April 2005. On June 27, 2005, just four days after ruling in my favor in Halbert, the Court granted the petition in Hudson.22

As I explained in my earlier article, I really thought the case was simply about the inevitable discovery doctrine and the knock-and-announce rule, not about the continuing vitality of the exclusionary rule itself.23 I wrote a brief that was all about the proper contours of the inevitable discovery doctrine and the need to suppress evidence in order to compel police officers to comply with the knock-and-announce rule. I cited Mapp and Weeks only in passing and just for the proposition that other remedies would not be effective in enforcing the knock-and-announce requirement.24

My understanding of what the case was about was borne out by the oral argument on January 9, 2006. There was no hint in that...

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