Supreme Court Alters Knock and Announce Rule

Supreme Court Alters Knock and Announce Rule

by Beverly Rice, December 2009

"Police! Search warrant!"

The words that came from the other side of Booker Hudson's front door were more than just an unexpected surprise. They were also a test of America's Constitutional privacy rights. Hudson's evening at home with friends was interrupted by the police loudly announcing their presence. Seconds later, the door opened and in walked police officers who found Hudson amid 23 bags of cocaine and a gun.

At his trial, Hudson's lawyers successfully suppressed the evidence found that fateful night, on the grounds that it was obtained via an unreasonable search. The case was appealed to the Michigan Supreme Court, which overruled that decision, stating that disallowing the evidence was not an appropriate remedy for violating proper search procedure.

The Supreme Court agreed with Michigan's high court, and in a 5-4 decision ruled police do not have to knock to gain access to homes if they have a search warrant. Furthermore, evidence discovered in the search can be used in court.

The majority opinion on the Court said the cost of a criminal getting off on a technicality such as the police's failure to knock outweighed the benefit stemming from concern of a violation of privacy rights or the knock and announce rule.

Knock Down for Knock and Announce

The ruling was a blow to the knock and announce rule established by the Supreme Court in the 1960's. At that time, the Court imposed an exclusionary rule which made evidence obtained in an improper search inadmissible in a trial.

The knock and announce rule required police to knock first, announce themselves, and wait a reasonable time for someone to answer the door. In the Hudson case, police announced themselves without knocking and waited mere seconds before entering - not enough time for a person to get to the door and open it.

With the Court's new ruling, the only penalties police face for not adhering to knock and announce are administrative discipline or a lawsuit for damages to property. However, the evidence they obtained in the search is admissible in court.

Dissenting Voices

The four dissenting justices in the case believed the ruling destroys the practical value of knock and announce. By failing to enforce the exclusionary rule, the police have little incentive to comply with proper search protocol. Even Justice Kennedy, who voted yea, wrote a separate opinion, saying the exclusionary rule is settled and not in doubt; the issue is whether police failure to give proper warning, even with a warrant, merited an extension of the exclusionary rule.

Defense attorneys and civil liberties advocates contend the Supreme Court's decision supports aggressive police tactics and erodes privacy rights of homeowners and businesses. In addition, administrative discipline and civil lawsuits are weak deterrents to force police to comply with the knock and announce rule.

Opponents also fear lax enforcement of knock and announce will lead to more mistaken raids on the wrong house. Such mistakes can turn deadly as frightened citizens return fire on police and police retaliate on innocent victims.

Conflicting Rulings

While the Supreme Court weakened privacy protection and the exclusionary rule in the Hudson case, earlier this year it championed privacy rights and the exclusionary rule in its decision on a Georgia Supreme Court matter.

In a 5-3 decision, justices upheld the Georgia high court's ruling that police need a search warrant to enter a couple's home, or permission from both partners to gain access. Without a warrant or mutual consent, the exclusionary rule would be enforced. The ruling affected other states whose courts had said police needed the consent of only one partner.

The Court's ruling did not affect police authority to enter a premises when there is probable cause to believe a person is in danger. Nor did it change the right of police to enter a home with the consent of one partner when the other is asleep or absent.

The Georgia case involved a child custody dispute between Janet and Scott Randolph. Mrs. Randolph called the police and when the officers arrived she told them where they could find her husband's stash of cocaine. Mr. Randolph returned while the police were there and did not consent to a search of the house.

The police began to collect evidence anyway but stopped on advice of the D.A. and obtained a search warrant. They returned with a warrant and collected more evidence which was used to charge Scott Randolph with drug possession. The Georgia court ruled the drugs could not be used as evidence because they were seized illegally.

In its decision, the Supreme Court found that consent of only one partner is inadequate because it is a generally accepted social expectation that each partner has a say in who can enter the couple's living space. Therefore, the warrantless search based on the consent of one party is unreasonable and unconstitutional.

Contradiction or Consistency?

The Supreme Court's two rulings appear at first to be contradictory but on second glance, they are not. In the Hudson case, the police had a search warrant; they just failed to allow enough time for Hudson to answer the door. Given the amount of drugs found in the search, the Court determined it would be foolish to invoke the exclusionary rule simply because one step in knock and announce protocol was missed.

In the Georgia matter, the police came to the house because of a domestic dispute. They had no warrant to search for any contraband, nor did they have the consent of both Randolphs to enter the premises. Although the officers did stop to get a search warrant, this was after the fact. Perhaps it would have been wiser if they had handled the domestic dispute and returned later with a search warrant, as they had probable cause to get one issued since the wife told them drugs were in the house.

At the heart of this debate is an age-old question: Where do we draw the line between upholding a citizen's right to privacy and society's right to live without crime? While the Supreme Court continually tries to strike a balance and maintain the Constitution's Bill of Rights, only time will tell how an unannounced entrance will affect privacy rights in the United States.