Criminal
Jul. 21, 2006
On the Roberts Court, the Police Get More Freedom
Forum Column - Although a single year is too little basis for drawing broad conclusions about the Roberts court, one trend seems clear: The new Supreme Court is going to be very supportive of the police and not the rights of criminal defendants.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
Although a single year is too little basis for drawing broad conclusions about the Roberts court, one trend seems clear: The new Supreme Court is going to be very supportive of the police and not the rights of criminal defendants. This year, the Supreme Court decided five cases involving the Fourth Amendment and search and seizure. Four were won by the police, and the fifth is unlikely to limit law enforcement behavior.
The most important case, and the most revealing about the Roberts court, was Hudson v. Michigan, 126 U.S. 2159 (2006). The issue before the court was narrow: whether the exclusionary rule applies when the police violate the requirements for knocking and announcing before entering a residence to execute a search warrant. But Justice Antonin Scalia wrote a plurality opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel Alito, that broadly attacked the exclusionary rule. In fact, Scalia's opinion left no doubt that there are four justices on the current court ready and willing to completely eliminate the exclusionary rule as a remedy for police violations of the Fourth Amendment.
The Supreme Court long has held that the exclusionary rule is a crucial remedy for proven police misconduct. In Weeks v. U.S., 232 U.S. 383 (1914), the court held that judges were required to exclude any evidence gained by federal authorities as a result of violations of the Fourth Amendment. In 1961, in Mapp v. Ohio, 367 U.S. 643 (1961), the court ruled that the exclusionary rule applied to evidence gained as a result of Fourth Amendment violations by state and local police departments. The exclusionary rule is regarded as a key deterrent to police misconduct; officers know that, if they violate the Constitution, they will jeopardize criminal prosecutions. Additionally, to echo the words of Justice Benjamin Cardozo, it is unfair to punish a person because the constable blunders.
Conservatives long have railed against the exclusionary rule, alleging that it unjustifiably allows dangerous criminals to go free. But until Hudson v. Michigan, there did not seem to be serious support on the court for reconsidering the exclusionary rule.
Hudson involved the police executing a search warrant in a narcotics case. The Supreme Court has been clear that, except in exigent circumstances, before the police enter a dwelling, they must knock and announce their presence. But when the police arrived at Hudson's house, they knocked and announced, waited five to 10 seconds and then entered. They then found drugs.
There was no dispute among the justices (or the parties) that the police violated the Fourth Amendment in this case. The sole issue was whether the exclusionary rule should be applied. The court, by a 5-4 margin, rejected the application of the exclusionary rule when there is a violation of the knock-and-announce requirement.
Scalia's majority opinion begins by declaring that "[s]uppression of evidence, however, has always been our last resort." This is a remarkable statement because it ignores the central role of the exclusionary rule in criminal procedure for the last 45 years. It puts the presumption against the application of the exclusionary rule, something new in American criminal procedure.
Scalia then stresses the costs of the exclusionary rule. The exclusionary rule easily could mean the loss of crucial evidence, vital to a successful prosecution. Dangerous criminals could be set free. In contrast to these costs, the court concluded that the exclusionary rule has little benefit in this area. Moreover, the justices suggested that the exclusionary rule is unnecessary to deter police misconduct because civil suits against the police are possible for violations of the Fourth Amendment and because of increased professionalism by police officers.
This argument has no stopping point; if followed, it would call for the total elimination of the exclusionary rule. Justice Anthony M. Kennedy, the fifth vote for the majority's result, was quite aware of the implications of Scalia's opinion. Kennedy wrote, "[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression."
Of course, this is correct; the court held only that the exclusionary rule does not apply when there are knock-and-announce violations. But its reasoning would call for the total elimination of the exclusionary rule. Contrary to Scalia's assertion, there is not any viable alternative to the exclusionary rule as a remedy for Fourth Amendment violations. Civil suits against the police are unlikely to succeed in a case like Hudson's. Indeed, the effect of eliminating the exclusionary rule for violations of the knock-and-announce requirement is that police now know they can violate the rule with impunity and rarely face any consequences. There is still a right to have the police refrain from entering without knocking and announcing, but the absence of any realistic remedy for violations is sure to make the rule a practical nullity.
The other Fourth Amendment cases were less dramatic, but also almost all were victories for the police. In Samson v. California, 123 U.S. 2193 (2006), the court held that the Fourth Amendment does not prohibit the police from conducting warrantless and suspicionless searches and seizures of parolees. A police officer knew that an individual was on parole and subjected him to a search solely for that reason. There was no other basis for reasonable suspicion, let alone probable cause.
But the Supreme Court in an opinion by Thomas ruled in favor of the police. The court stressed the "totality of the circumstances" and pointed to the fact that Samson had consented to suspicionless searches as a condition for parole, that parolees have a diminished expectation of privacy and that the government has an important interest in preventing recidivism by parolees. This, of course, leaves parolees with no protection against searches whenever police officers want to conduct them.
In Brigham City, Utah v. Stuart, 126 U.S. 943 (2006), the court held that police officers may enter a residence without a warrant if they believe someone is in any danger, even if it is not of serious injury. The case involved the police going to a house in response to a call that there was a loud party in the middle of the night. Officers saw teenagers in the backyard drinking beer. The officers peered through a window and saw one person punch another. That caused them to enter without a warrant. The court said that there were sufficient exigent circumstances to justify entering. Any reasonable belief of possible danger, even if it is not a risk of serious injuries, is sufficient to allow the police to enter the dwelling.
In U.S. v. Grubbs, 126 U.S. 1494 (2006), the court held that an "anticipatory search warrant" need not state the conditions that would trigger the police having authority to search. A magistrate judge issued an "anticipatory" search warrant for Grubbs' house based on a federal officer's affidavit. The affidavit explained that the warrant would not be executed until a parcel containing a videotape of child pornography (which Grubbs had ordered from an undercover postal inspector) was received at, and physically taken into, the residence. But the warrant itself did not state the conditions that had to be met for the search to occur.
Two years ago, in Groh v. Ramirez, 540 U.S. 551 (2004), the court stressed that the warrant itself, not just the affidavit, must state with particularity that which is to be searched and seized. But the court in Grubbs refused to extend that to the conditions in an anticipatory search warrant.
The one victory for a criminal defendant this year is unlikely to be much of a constraint on police behavior. In Georgia v. Randolph, 126 U.S. 1415 (2006), the court held that, if both occupants of a residence are present, there is not valid consent if one objects to the search. The case involved a situation in which the wife consented to the police search but the husband, who was the target, refused consent. The court, in a 5-3 decision with the majority written by Justice David H. Souter, said that there was not valid consent.
But police easily can circumvent this ruling. They simply could wait until the husband left and then come back and ask the wife for permission to enter and search. The court was clear that, if only one occupant of a residence is present and that person gives consent, that is sufficient to meet the requirements of the Fourth Amendment.
Taken together, the Fourth Amendment cases from this term, in their holdings and especially their tone, make clear a simple reality: The police are likely to win the overwhelming majority of search and seizure cases in the Roberts court.
Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University.
By Erwin Chemerinsky
Although a single year is too little basis for drawing broad conclusions about the Roberts court, one trend seems clear: The new Supreme Court is going to be very supportive of the police and not the rights of criminal defendants. This year, the Supreme Court decided five cases involving the Fourth Amendment and search and seizure. Four were won by the police, and the fifth is unlikely to limit law enforcement behavior.
The most important case, and the most revealing about the Roberts court, was Hudson v. Michigan, 126 U.S. 2159 (2006). The issue before the court was narrow: whether the exclusionary rule applies when the police violate the requirements for knocking and announcing before entering a residence to execute a search warrant. But Justice Antonin Scalia wrote a plurality opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel Alito, that broadly attacked the exclusionary rule. In fact, Scalia's opinion left no doubt that there are four justices on the current court ready and willing to completely eliminate the exclusionary rule as a remedy for police violations of the Fourth Amendment.
The Supreme Court long has held that the exclusionary rule is a crucial remedy for proven police misconduct. In Weeks v. U.S., 232 U.S. 383 (1914), the court held that judges were required to exclude any evidence gained by federal authorities as a result of violations of the Fourth Amendment. In 1961, in Mapp v. Ohio, 367 U.S. 643 (1961), the court ruled that the exclusionary rule applied to evidence gained as a result of Fourth Amendment violations by state and local police departments. The exclusionary rule is regarded as a key deterrent to police misconduct; officers know that, if they violate the Constitution, they will jeopardize criminal prosecutions. Additionally, to echo the words of Justice Benjamin Cardozo, it is unfair to punish a person because the constable blunders.
Conservatives long have railed against the exclusionary rule, alleging that it unjustifiably allows dangerous criminals to go free. But until Hudson v. Michigan, there did not seem to be serious support on the court for reconsidering the exclusionary rule.
Hudson involved the police executing a search warrant in a narcotics case. The Supreme Court has been clear that, except in exigent circumstances, before the police enter a dwelling, they must knock and announce their presence. But when the police arrived at Hudson's house, they knocked and announced, waited five to 10 seconds and then entered. They then found drugs.
There was no dispute among the justices (or the parties) that the police violated the Fourth Amendment in this case. The sole issue was whether the exclusionary rule should be applied. The court, by a 5-4 margin, rejected the application of the exclusionary rule when there is a violation of the knock-and-announce requirement.
Scalia's majority opinion begins by declaring that "[s]uppression of evidence, however, has always been our last resort." This is a remarkable statement because it ignores the central role of the exclusionary rule in criminal procedure for the last 45 years. It puts the presumption against the application of the exclusionary rule, something new in American criminal procedure.
Scalia then stresses the costs of the exclusionary rule. The exclusionary rule easily could mean the loss of crucial evidence, vital to a successful prosecution. Dangerous criminals could be set free. In contrast to these costs, the court concluded that the exclusionary rule has little benefit in this area. Moreover, the justices suggested that the exclusionary rule is unnecessary to deter police misconduct because civil suits against the police are possible for violations of the Fourth Amendment and because of increased professionalism by police officers.
This argument has no stopping point; if followed, it would call for the total elimination of the exclusionary rule. Justice Anthony M. Kennedy, the fifth vote for the majority's result, was quite aware of the implications of Scalia's opinion. Kennedy wrote, "[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression."
Of course, this is correct; the court held only that the exclusionary rule does not apply when there are knock-and-announce violations. But its reasoning would call for the total elimination of the exclusionary rule. Contrary to Scalia's assertion, there is not any viable alternative to the exclusionary rule as a remedy for Fourth Amendment violations. Civil suits against the police are unlikely to succeed in a case like Hudson's. Indeed, the effect of eliminating the exclusionary rule for violations of the knock-and-announce requirement is that police now know they can violate the rule with impunity and rarely face any consequences. There is still a right to have the police refrain from entering without knocking and announcing, but the absence of any realistic remedy for violations is sure to make the rule a practical nullity.
The other Fourth Amendment cases were less dramatic, but also almost all were victories for the police. In Samson v. California, 123 U.S. 2193 (2006), the court held that the Fourth Amendment does not prohibit the police from conducting warrantless and suspicionless searches and seizures of parolees. A police officer knew that an individual was on parole and subjected him to a search solely for that reason. There was no other basis for reasonable suspicion, let alone probable cause.
But the Supreme Court in an opinion by Thomas ruled in favor of the police. The court stressed the "totality of the circumstances" and pointed to the fact that Samson had consented to suspicionless searches as a condition for parole, that parolees have a diminished expectation of privacy and that the government has an important interest in preventing recidivism by parolees. This, of course, leaves parolees with no protection against searches whenever police officers want to conduct them.
In Brigham City, Utah v. Stuart, 126 U.S. 943 (2006), the court held that police officers may enter a residence without a warrant if they believe someone is in any danger, even if it is not of serious injury. The case involved the police going to a house in response to a call that there was a loud party in the middle of the night. Officers saw teenagers in the backyard drinking beer. The officers peered through a window and saw one person punch another. That caused them to enter without a warrant. The court said that there were sufficient exigent circumstances to justify entering. Any reasonable belief of possible danger, even if it is not a risk of serious injuries, is sufficient to allow the police to enter the dwelling.
In U.S. v. Grubbs, 126 U.S. 1494 (2006), the court held that an "anticipatory search warrant" need not state the conditions that would trigger the police having authority to search. A magistrate judge issued an "anticipatory" search warrant for Grubbs' house based on a federal officer's affidavit. The affidavit explained that the warrant would not be executed until a parcel containing a videotape of child pornography (which Grubbs had ordered from an undercover postal inspector) was received at, and physically taken into, the residence. But the warrant itself did not state the conditions that had to be met for the search to occur.
Two years ago, in Groh v. Ramirez, 540 U.S. 551 (2004), the court stressed that the warrant itself, not just the affidavit, must state with particularity that which is to be searched and seized. But the court in Grubbs refused to extend that to the conditions in an anticipatory search warrant.
The one victory for a criminal defendant this year is unlikely to be much of a constraint on police behavior. In Georgia v. Randolph, 126 U.S. 1415 (2006), the court held that, if both occupants of a residence are present, there is not valid consent if one objects to the search. The case involved a situation in which the wife consented to the police search but the husband, who was the target, refused consent. The court, in a 5-3 decision with the majority written by Justice David H. Souter, said that there was not valid consent.
But police easily can circumvent this ruling. They simply could wait until the husband left and then come back and ask the wife for permission to enter and search. The court was clear that, if only one occupant of a residence is present and that person gives consent, that is sufficient to meet the requirements of the Fourth Amendment.
Taken together, the Fourth Amendment cases from this term, in their holdings and especially their tone, make clear a simple reality: The police are likely to win the overwhelming majority of search and seizure cases in the Roberts court.
Erwin Chemerinsky is Alston & Bird professor of law and political science at Duke University.
#335844
David Minkown
Daily Journal Staff Writer
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com