IN A DECISION THAT MIGHT HAVE gone the other way if Justice Sandra Day O'Connor hadn't retired, the U.S. Supreme Court on Thursday needlessly gutted a venerable protection for personal privacy. By a 5-4 vote -- with Samuel A. Alito Jr., O'Connor's replacement, in the majority -- the justices ruled that Detroit police who entered a suspect's home unlawfully would not suffer the usual penalty for an illegal search: exclusion of the evidence at trial.
The court upheld the conviction of Booker T. Hudson, who was arrested after police, armed with a warrant, found drugs and firearms in his apartment. So what was the problem with the search? As the state of Michigan conceded, the police violated a 4th Amendment rule requiring that they make their presence known to the target of the search before rushing in.
This "knock and announce" rule is not a newfangled creation of softheaded liberal judges. Even Justice Antonin Scalia, the author of the majority opinion in this case, conceded that "the common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one." But having identified that principle, Scalia went on to trash it by holding that the evidence the police found could be used against Hudson at trial.
Reaching that conclusion required some heavy-duty legal hair-splitting. The seizure of the evidence, Scalia wrote, did not result from the officers' refusal to announce themselves and wait more than a few seconds for the door to be opened. "Whether that preliminary misstep had occurred or not," Scalia argued, "the police would have executed the warrant they had obtained and would have discovered the gun and drugs inside the house."
Dissenting Justice Stephen Breyer countered persuasively that the question was what the officers actually did. "Although the police might have entered Hudson's home lawfully," Breyer wrote for himself and three colleagues, "they did not in fact do so. Their unlawful behavior inseparably characterizes their actual entry; that entry was a necessary condition of their presence in Hudson's home; and their presence in Hudson's home was a necessary condition of their finding and seizing the evidence."
The dispute between Scalia and Breyer is more than an abstract law school debate. It has ominous real-world consequences. If police feel they needn't announce their presence before executing a warrant, some of them won't -- sometimes endangering themselves, sometimes endangering the occupants of the residence they have arrived to search. Scalia's opinion gives the police exactly that sort of blank check by removing the best deterrent to police misconduct: the exclusion of evidence at trial.
Many Americans may shake their heads at the idea that, as the late Justice Benjamin Cardozo once complained, the "criminal is to go free because the constable has blundered." Yet holding police accountable protects not only criminals but anyone who might be the target of overreaching or reckless police conduct. One of the officers who served the warrant on Hudson said that, after announcing themselves, police waited about as long as "it took me to go in the door." Is that the way you'd want to be served with a warrant?