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Supreme Court Approves No-Knock Warrants

By a 5-4 vote, the Supreme Court ruled today that police do not have to knock before entering a home subject to a search warrant. Both John Roberts and Samuel Alito voted with the majority, making this quite likely the first major Constitutional case directly impacted by the changes in the Supreme Court over the past year.

WASHINGTON — The Supreme Court ruled Thursday that police armed with a warrant can barge into homes and seize evidence even if they don’t knock, a huge government victory that was decided by President Bush’s new justices.

The 5-4 ruling signals the court’s conservative shift following the departure of moderate Sandra Day O’Connor.

The case tested previous court rulings that police armed with warrants generally must knock and announce themselves or they run afoul of the Constitution’s Fourth Amendment ban on unreasonable searches.

Justice Antonin Scalia, writing for the majority, said Detroit police acknowledge violating that rule when they called out their presence at a man’s door then went 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 wrote.

But suppressing evidence is too high of a penalty, Scalia said, for errors by police in failing to properly announce themselves.

The outcome might have been different if O’Connor were still 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 that officers around the country might start bursting into homes to execute search warrants. She asked: “Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?”

She retired before the case was decided, and a new argument was held so that Justice Samuel Alito could participate in deliberations. Alito and Bush’s other Supreme Court pick, Chief Justice John Roberts, both supported Scalia’s opinion.

As a practical matter, there doesn’t seem to me to be any reason why police should be required to knock on the door of a home and announce their presence when they have already obtained a search warrant. Depending on the case, this may give persons inside the opportunity to destroy evidence or arm themselves to prepare for the officers’ entry. By obtaining the warrant, the police have already demonstrated to a judge probable cause to believe that evidence exists inside the home, that, I would think, is all they need and all the Fourth Amendment requires.

The dissent, quite obviously, disagrees:

In a dissent, four justices complained 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 himself and the three other liberal members.

Breyer said that police will feel free to enter homes without knocking and waiting a short time if they know that there is no punishment for it.

There’s only one problem with Justice Breyer’s position; there is no knock and announce requirement anywhere in the Constitution. Here’s what the Fourth Amendment actually 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 no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

That’s it. The rest is Judge-created law that has no basis in the text of the Amendment. Maybe I’m missing something here, and I’d be willing to reconsider, but I don’t see what the big deal is with this decision.

Others posting on the decision:

Orin Kerr has some initial thoughts on the decision and its compatibility with the Court’s 4th Amendment precedent.

At Cato@Liberty, Randy Balko clearly thinks this was wrongly decided, and points to his April 2006 article at Slate for the reasons why.

2 Responses to “Supreme Court Approves No-Knock Warrants”

  1. KipEsquire says:

    Let’s also keep in mind that the warrant was for a weapon as well as narcotics. This was an extremely dangerous incident for the police.

    I challenge anyone to argue with a straight face that there is, or should be, a Fourth Amendment right to “lock and load.”

  2. Knock-and-Announce Case Not a Libertarian Outrage

    I have very little to say about the Supreme Court’s ruling in Hudson v. Booker, 04-1360 (PDF – 51 pages) — narrowly holding that the exclusionary rule is not an absolute and…

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