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June 19, 2006 - Las Vegas Review-Journal (NV)

Editorial: Police No Longer Need To Knock

Supreme Court Majority Flushes The Fourth Amendment

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The Supreme Court ruled Thursday that police can now break into homes and seize evidence without even knocking, so long as they have a warrant.

The 5-4 ruling is another signal that the court is now dominated by justices who place the convenience of police over the individual rights supposedly guaranteed by the Constitution. Dissenting justices warned Thursday that police will now feel free to ignore previous court rulings that officers with search warrants must knock and announce themselves -- giving residents at least 15 to 20 seconds to respond -- lest they run afoul of the Constitution's Fourth Amendment.

Police hardly ever lose their jobs or go to jail when they violate someone's constitutional rights, of course. The only institutional safeguard the courts had found effective in the past was the "exclusionary rule," which told police that later, in court, they would not be allowed to use evidence seized in violation of a citizen's rights. Play by the rules, or it's "case dismissed."

Writing for the majority, Justice Antonin Scalia on Thursday wadded up that exclusionary rule and flushed it. His ruling says Detroit police acknowledged violating the "reasonable wait" rule when they called out their presence at the door of Booker Hudson, failed to knock, then stormed inside three seconds to five seconds later.

"Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house," Scalia rationalized.

Suppressing the evidence would have been too high a "penalty," Scalia said, for errors by police in failing to properly announce themselves.

Court watchers noted the outcome might have been different had Justice Sandra Day O'Connor still been on the bench. She seemed ready, when the case was first argued in January, to rule in favor of Booker Hudson, whose house was searched in 1998. O'Connor had worried aloud during arguments that officers around the country might start bursting into homes.

She asked: "Is there no policy of protecting the homeowner a little bit and the sanctity of the home from this immediate entry?" She retired before the case was decided, however, and the case -- Hudson v. Michigan -- was re-argued so her replacement, Justice Samuel Alito, could participate.

The four dissenting justices pointed out that the decision erases more than 90 years of Supreme Court precedent. "It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection," Justice Stephen Breyer wrote for the dissenters.

In fact, the Fourth Amendment contains no "knock-and-announce" language. It says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," and then stipulates that "No warrants shall issue, but upon probable cause ..." The so-called "15-second rule" was already a dangerous infringement of that right.

Would most of us manage to get on some proper clothing and make it to the front door in 15 or 20 seconds if we heard a knock in the dead of night? Is it the common practice, today, of police SWAT teams dressed in helmets and bulletproof vests, with cocked shotguns at their shoulders ready to fire, to politely allow a homeowner time to fetch his bifocals and read their warrant -- checking to make sure they have the proper name and address -- while they calmly await his grudging permission to enter?

Americans are now far more likely to be awakened in their own bedrooms by shouting men pointing flashlights and cocked firearms in their faces. Will anyone be surprised if some innocent parties, confronted by such a home invasion, reach for their own bedside shotguns, with loss of life resulting? Or will we simply be told, "They brought it on themselves. All they had to do was obey the orders."

Is it better to lose our Bill of Rights, or to acknowledge that the Bill of Rights may make it darned hard to win the war on drugs -- a so-called "war" on American citizens that is barred by the Ninth Amendment, anyway?

The alternative remedies proposed Thursday by the break-and-enter gang are pathetic. Justice Anthony M. Kennedy said legislatures can intervene if police officers do not "act competently and lawfully." He also said people whose homes are wrongly searched can file a civil rights lawsuit. There are even public-interest law firms and attorneys who specialize in just such civil rights grievances, added the ever-helpful Justice Scalia. Justice Breyer replied Thursday that there is no evidence of anyone collecting much money in such cases.

This ruling comes courtesy of the court's conservative justices. But this is not conservatism. This borders on totalitarianism.

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