What a difference a vote makes

Guest post by Greg Prince

In Hudson v. Michigan, 04-1360, the Supreme Court scaled back long held interpretations of the Fourth Amendment, ruling that in some cases illegally obtained evidence may indeed be admitted in court.

The Supreme Court made it easier Thursday for police to barge into homes and seize evidence without knocking or waiting, a sign of the court's new conservatism with Samuel Alito on board.

The court, on a 5-4 vote, said judges cannot throw out evidence collected by police who have search warrants but do not properly announce their arrival.

This is a case in which there is almost certainly a difference than what would have remained with O'Connor on the court. The case was first argued with O'Connor still seated, then reargued later, apparently to break a 4-4 tie. O'Connor was seen as favorable to Hudson. This represents a significant rolling back of the court's traditional strict interpretation of the exclusionary rule.

Hudson was not a sympathetic defendant. Police with a warrant announced themselves at the door but forgot to knock. Hudson was found with a loaded gun and cocaine in his possession. The majority observed that the exclusionary rule shouldn't be a "get out of jail free" card for guilty defendants based on police blunders.

I don't disagree in principle, but in application there are trust issues within a lot of communities where police are involved. Going by the book is for the protection of everyone involved. Moreover, when mistakes don't have negative consequences, how long is it before accidental mistakes become intentional shortcuts?

Four of the justices seemed more than willing to give police even more latitude, but Justice Kennedy limited them to the half loaf approach:

Kennedy joined in most of the ruling but wrote to explain that he did not support ending the knock requirement. "It bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry," he said.

Kennedy said that legislatures can intervene if police officers do not "act competently and lawfully." He also said that people whose homes are wrongly searched can file a civil rights lawsuit.

Yes there may be means of redress when abuses occur, but the point was to prevent civil rights abuses in the first place. Legislative action after the fact is meaningless to those abused in the first place, and not all wrongs can be made right through lawsuits.

Orin Kerr has a delightful piece, too, which is a must read, especially for "original intent" fetishists:

Am I right that Scalia is saying that the meaning of the Fourth Amendment can change over time as the staffing of police departments and public interest law offices changes? The Constitution — It’s alive! This is a plausible view based on Fourth Amendment precedents, I should point out. Still, it’s sort of funny to read it in an opinion by Justice Scalia.

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Other voices:

David Schaub, Justin Gardner, Kevin Drum, Proceed at Your Own Risk, and Captain's Quarters.