posted
So says the Supreme Court, in a 5/4 decision.
I heard this on the news on the way home, but don't have any links, or time to get one.
Basically, the police must announce who they are and knock on the door before entering with a search warrant. Previously, if they did not, then any evidence they found was thrown out. Now, if the "forget" to announce who they are, they can still use what ever evidence they find.
Your in the shower, using the bathroom, in a romantic embrace with your spouce, doesn't matter--they can charge right in unannounced to your embarrasment, and your cost for replacing the broken doors and locks.
One justice suggested suing the police if they break the constitutional mandate, but the evidence still gets used against you.
Posts: 11895 | Registered: Apr 2002
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quote:Previously, if they did not, then any evidence they found was thrown out.
This is not true. Some circuits were operating that way, but it had not been established one way or the other.
It's not new that illegally obtained evidence is OK to use in court.
The exclusionary rule is a remedy and a deterrent.
When a search without probable cause is made, the police would not have found the evidence absent the constitutional violation. Since the police conduct searches for evidence to use in court, there is a great deterrent effect in excluding such evidence. Plus, it prevents the court from being tainted by the presence of evidence which would not exist absent constitutional violations.
When the police enter without knocking (and it should be noted they did announce and knock in this case, they simply didn't wait after the knock) or don't wait to enter after knocking, the motivation is likely officer safety, something they will not be deterred from. Further, the evidence is not evidence which the police would not have found. They had a valid warrant (which means they had probable cause).
We're talking the difference between a 15-second delay and a several hour delay for a lack of warrant.
The threshold analysis used by the majority in today's opinion seems to be a but-for question. But for the unconstitutional action, would the evidence have been discovered. Here, the answer is clearly yes. Therefore, exclusion is inappropriate.
Posts: 26071 | Registered: Oct 2003
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posted
Don't get too worried until you actually read what the court said. Too many times what the news media reports and what is actually done differ somewhat.
quote:Originally posted by Sergeant: Too many times what the news media reports and what is actually done differ somewhat.
True. The headline on the Post site said "Court Backs No-Knock Search." This is inaccurate on two counts: it wasn't a no-knock search, but an inadequate wait after the knock search. Second, the court did not "back" the search. It declared the search to be unconstitutional.
The confusion seems to be that people think exclusion of anything associated with an unconstitutional search is automatic. It's not.
quote:In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial--incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.
Also, some words from Justice Kennedy, who swung the vote. His opinion basically controls until the Court changes:
quote:the 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.
...
Suppression is another matter. Under our precedents the causal link between a violation of the knock-and-announce requirement and a later search is too attenuated to allow suppression. Cf. United States v. Ramirez, 523 U. S. 65, 72, n. 3 (1998) (application of the exclusionary rule depends on the existence of a "sufficient causal relationship" between the unlawful conduct and the discovery of evidence). When, for example, a violation results from want of a 20-second pause but an ensuing, lawful search lasting five hours discloses evidence of criminality, the failure to wait at the door cannot properly be described as having caused the discovery of evidence.
posted
My worry, which I state here only so more learned people (Dag) can show why it is nothing to worry about, is this:
Without the threat of tainting evidence, what deterent is there to insure that police will uphold the constitutional mandated knock and wait?
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Well, I think Dagonee is pretty persuasive in his post that if the evidence would have been found even if the 'unconstitutional practice' had not been...umm...practiced, it should not be excluded...I think such things should result in a reduction in sentence for the criminal, and in punishment of the law-enforcement personnel involved.
I am very disturbed at the implications that the exclusion rule might be viewed unfavorably by many members of the USSC. Of them that I've heard so far, only Justice Kennedy has specifically stated that he views this case as having no relevance to the exclusion issue on a wider level.
Posts: 17164 | Registered: Jun 2001
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posted
Robin, I greatly, greatly, greatly appreciate all the mess that underpaid and under appreciated police have to deal with. However it is more important that we have a definite set of rules that they know, than to have chaos and assumptions that lead to frustration and mistakes.
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quote:Without the threat of tainting evidence, what deterent is there to insure that police will uphold the constitutional mandated knock and wait?
We need to come up with one.
4th amendment exclusion is a HUGE deal. Most of our rules Miranda, right to counsel, jury trial) are intended to be accuracy-enhancing. We suspect confessions extracted without warnings of being involuntary and therefore possibly incorrect. Without a defense lawyer, the prosecutions case isn't fully tested. Without a jury, the defendant is left to the whims of a government official with no popular check.
Exclusion of illegally seized evidence is contrary to accuracy. Relevant evidence is kept from the fact-finder, leading to a less accurate result.
This is a HUGE deal which I'm not sure many people appreciate fully. We are deliberately sabotaging the fact-finding process of criminal trials.
This should tell us how important the 4th amendment is. But we still need to look at the reasoning.
When a search lacks probable cause or a warrant (when a warrant is required), the illegal act was committed with the intention of producing evidence to be used in court. Think of it as denying someone the fruits of their crime. It also prevents the intended result of an unconstitutional action from being used in court - something that taints the judicial system and almost makes the court an accomplice to the violation. This is why the but-for test makes a lot of sense.
For example, if police officers beat up a suspect and put him in the hospital, evidence that was not found because of the beating is admissible. I think most people agree a police beating is worse than a 5 second wait after an announcement.
As to what deterrent would work? I'm not sure. Civil suits, maybe. A requirement that all damage caused be paid by the police department. We need to get creative.
Posts: 26071 | Registered: Oct 2003
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posted
I'm not saying the exclusionary rule is bad -- we need something to prevent abuses -- but it's an odd way to get police to follow the law. Where's the incentive? If a cop does something awful, why not punish him, rather than the public?
Posts: 1877 | Registered: Apr 2005
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posted
I see no reason why evidence should not be considered valid due to being obtained in this way... but I also see no reason why you wouldn't charge the offending cop(s) with something like breaking & entering, just like any other citizen.
Posts: 326 | Registered: Aug 2005
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posted
Dag: Why can't the police simply pay off the next door neighbor to either:
A: Break into the house and report what they found inside (since evidence found in this way is still admissable)
B: Ring the doorbell have the person being investigated answer the door then have the police conveniently roll up in their car with their search warrent ready so that the guy at the door has no time to warn accomplices or go get a gun. Also if the person at the door slams the door the police then have probably cause to kick in the door.
quote:If a cop does something awful, why not punish him, rather than the public?
The idea behind the exclusionary rules is not to punish the public, but to punish the police/prosecuting establishment. In other words, to take away the insentive for the government to encourage breaking the law by those who's responsibility is to uphold it.
Police may be taught in training to wait fifteen seconds, but if there commanders tell them not to in order to increase their arrest record, the poor cop is stuck between facing possible law-suit/incarceration and being fired for not following his commanders orders.
I don't want to see a solution that punishes the cop on the street as much as a solution that deters police departments from breaking the rules as standard procedure.
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quote:Without the threat of tainting evidence, what deterent is there to insure that police will uphold the constitutional mandated knock and wait?
Since the Constitution is supposed to be the highest law in the land, when a police officer violates the Constitution he is committing a CRIME. Charge him with a CRIME.
If a cop decides to just break down someone's house because a sixth sense told him to, and finds 40 pounds of cocaine, I think it's ludicrous to say we can't use that as evidence to prosecute the drug dealer. He's guilty, we use it.
But the cop is out of a job and in jail. That's what he gets for committing the crime of an illegal search.
That's the deterrent.
I guess the difficulty though is in cases where there's a violation, but not a severe enough one to warrant firing. So the cop gets suspended without pay or something. But then there's corruption: prosecutors and police captains realize that minor violations are still admissible, so they tell a beat cop, hey, do this, and if you get suspended for two weeks without pay, we'll make it up out of this slush fund.
But that would be kinda dumb, because getting caught at *that* would warrant serious jail time.
I still think it's a good idea to let evidence be admissable, but punish people who violate the Constitution. It seems like it'd result in *fewer* violations, because now it means you lose money or your job instead of one case.
Posts: 454 | Registered: Mar 2005
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posted
Who is going to make sure those people get punished, though? Is the DA really going to decide to pursue a case against the police officers who just got a major drug dealer off the streets by violating their constitutional rights? Or will it fall to the accused to finance their own law suit? Will it be criminal, civil?
I'm definitely in favor of the evidence being inadmissable if it were obtained illegally. I can also see how it IS admissable when they have a warrant but fail to wait.
There should be a HIGH penalty whenever police engage in no-knock or might-as-well-have-not-knocked-they-charged-in-so-fast raids. Too many people, police and the innocent alike, have been killed as a result. It is NOT worth it.
Posts: 2880 | Registered: Jun 2004
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quote:Originally posted by Katarain: How long do the officers have to wait after a knock, constitutionally?
It's never been established.
quote:Dag: Why can't the police simply pay off the next door neighbor to either:
A: Break into the house and report what they found inside (since evidence found in this way is still admissable)
B: Ring the doorbell have the person being investigated answer the door then have the police conveniently roll up in their car with their search warrent ready so that the guy at the door has no time to warn accomplices or go get a gun. Also if the person at the door slams the door the police then have probably cause to kick in the door.
A: The neighbor would be an agent of the police, and therefore exclusion would still apply.
B: I'm not sure of the specifics of the knock and announce rule. It might require announcing at the time of knocking.
quote:The idea behind the exclusionary rules is not to punish the public, but to punish the police/prosecuting establishment. In other words, to take away the insentive for the government to encourage breaking the law by those who's responsibility is to uphold it.
That's only part of it. Otherwise exclusion would be the remedy for worse violations (such as the beatings I referenced above).
There needs to be a nexus between the violation and the deterrent. "Removing the incentive" is the most important part. The incentive to break in without a warrant is to get evidence. The incentive to knock and not announce is to not get shot.
quote:Since the Constitution is supposed to be the highest law in the land, when a police officer violates the Constitution he is committing a CRIME. Charge him with a CRIME.
The mental state required for most crimes is far higher than being confused about a very complex area of law. This isn't "ignorance of the law is no excuse" territory, but rather reasonable belief that the law was being complied with. Most violations would be impossible to bring charges for unless we wanted to make it strict liability.
And strict liability = no more officers.
quote:If a cop decides to just break down someone's house because a sixth sense told him to, and finds 40 pounds of cocaine, I think it's ludicrous to say we can't use that as evidence to prosecute the drug dealer. He's guilty, we use it.
It's not. I used to think that, but I've never heard of any meaningful deterrent other than exclusion. Try to establish a coherent system of deterrence which accounts for the less egregious illegal searches.
Posts: 26071 | Registered: Oct 2003
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quote:I'm definitely in favor of the evidence being inadmissable if it were obtained illegally. I can also see how it IS admissable when they have a warrant but fail to wait.
You sum up the distinction well.
quote:There should be a HIGH penalty whenever police engage in no-knock or might-as-well-have-not-knocked-they-charged-in-so-fast raids. Too many people, police and the innocent alike, have been killed as a result. It is NOT worth it.
I haven't come up with a suitable deterrent since I started thinking about this yesterday. The ones I listed above are first glimpses, not really thought out.
Posts: 26071 | Registered: Oct 2003
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posted
If the police bust into a house and there is no crime, they should be fired and sued. If a cop busts illegally into a house based on no evidence and find evidence of serious crimes, that evicence should dang well be admissible in court--Why should you allow criminals to continue to prey on innocent people? The goal of the criminal justice system is the JUSTICE, not the SYSTEM! We weren't exactly living in a police state in the 1800's before miranda rights et al materialized in the constitution, to my knowledge.
edit--added serious, i.e., felonies. I don't care if traffic fines get tossed out on technicalities, or (maybe--still undecided) drug use, but robbery, assault, etc. penalize the cop but toss away the crook as well, for goodness sake.
posted
I read about one case where the FBI obtained a warrant to search a ranch for a marijuana grow. They executed the warrant, then accidentally shot the owner before finding that there was no illegal activity going on. An investigation found out that the Feds had obtained an estimate on the value of the ranch the previous week, and were eyeing it for appropriation.
On the one hand, there could have been drugs there, and it wasn't an illegal search- but they did kill an innocent man, and their motivations were innapropriate to say the least.
I would go with a middle ground policy where evidence can be used if it is found to be obtained in good faith by the police. There would have to be very strict overview by the legal system, and harsh penalties for bad faith police work. I think the way it is now, they get the evidence on good faith sometimes, but they rarely get punished when they violate the public's trust, so the worst that can happen to a cop who willingly flouts the rules is that he doesn't bag the alleged criminal. This would only encourage cops to be good at breaking the rules, rather than diligent in adhering to them.
Posts: 9912 | Registered: Nov 2005
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quote:If the police bust into a house and there is no crime, they should be fired and sued.
What if they have very good reason to believe someone is being killed inside.
quote:We weren't exactly living in a police state in the 1800's before miranda rights et al materialized in the constitution, to my knowledge.
Prior to Mapp v. Ohio, which extended the exclusionary rule to the states, most states essentially acted as if the 4th amendment didn't exist.
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posted
Yes, what if there are horrid yells coming from inside. The source could be a couple making loud sex to a horror movie, but it could certainly warrant suspicioun.
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posted
Cato was a roman governor who ruled that husbands could do anything to their cheating wives... (shares some random historical trivia)
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quote: If the police bust into a house and there is no crime, they should be fired and sued. If a cop busts illegally into a house based on no evidence and find evidence of serious crimes, that evicence should dang well be admissible in court--Why should you allow criminals to continue to prey on innocent people? The goal of the criminal justice system is the JUSTICE, not the SYSTEM! We weren't exactly living in a police state in the 1800's before miranda rights et al materialized in the constitution, to my knowledge.
Niki:
You are wrong here in my opinion. We the people of the United States of America have protections from our government. Those fragile protections are what balance the power the government has over us. Those freedoms are sacred and what keep this country from deteriorating.
The rule of law must be followed. Justice is law, law is the system.
I have the right to privacy. I can do whatever I want in my house. Even if I am doing something illegal, by the police being allowed to break into my house for capricious reasons, my freedom has been abridged.
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