In one of first concrete signs of the erosion of limits on governmental misconduct toward U.S. citizens, this NY Times article reports on yesterday’s controversial 5-4 U.S. Supreme Court decision in the Michigan “knock-and-announce” case, which raises troubling new issues about whether the “exclusionary rule” will survive the Roberts Court for constitutional violations by police, including Fourth Amendment violations of searching citizens’ homes and seizing their property. A copy of the decision is here, and the SCOTUS blog has a good analysis of the Supreme Court’s opinion here.
Make no mistake about it, the Supreme Court’s decision is a full-blown attack on the traditional remedies for ensuring civil liberties in America. The decision clearly indicates that that Justice Scalia is intending a significant revision or casting aside of the exclusionary rule as a remedy for illegal governmental police conduct, perhaps best reflected by the opinion’s naive trust placed in police officers to ensure Constitutional protections. Particularly troubling to me is Justice Scalia’s dismissive attitude toward the “knock-and-announce” rule, not the least of which are the understandable terror and fear involved in having one’s door beaten down in the middle of the night by armed and masked men, the disturbing predicament that a homeowner confronts in deciding whether the intruders are criminals or police and the fact that the high emotion of such a situation can lead police to make horrifying misinterpretations of harmless gestures, which often result in tragic consequences. Justice Scalia gallingly ignores those valid reasons for the knock-and-announce rule by contending that the reasoning behind the rule is simply “the right not to be intruded upon in one’s nightclothes.”
Yeah, right. Orin Kerr places the positive face on the decision here, while Cato’s Mark Moller and Grits for Breakfast’s Scott Henson echo my more ominous view of the decision.