In a worrisome development, the new majority on the Supreme Court ruled June 15 in Hudson v. Michigan, that the exclusionary rule should not be applied to violations of the Fourth Amendment’s “knock and announce” rule.
At issue, the Detroit police had a warrant, but they did not knock and gave Booker T. Hudson less than five seconds before barging into his unlocked house.
The “knock and announce” rule dates back to English common law. The exclusionary rule has been enforced by the Supreme Court since it ruled in Weeks v. U.S. in 1914 that without the sanction of exclusion, which prevents illegally obtained evidence from being introduced against a criminal defendant, the Fourth Amendment “might as well be stricken from the Constitution.”
Fortunately, New York state has its own exclusionary rule so we are not directly affected by Justice Antonin Scalia’s opinion. But New York does have a dangerous affection for “noknock” warrants, which have proven deadly. Consider what happened to Alberta Spruill.
Ms. Spruill was a 57-year-old city employee who died of a heart attack on May 16, 2003, after police, acting on a bad tip, threw a concussion grenade into her apartment on W.143rd St.
Police had an affidavit from a confidential informant that a crack dealer lived in her apartment. It turned out the dealer was already in custody. The police did not bother themselves to go to her building and speak to its residents prior to the raid.
New York permits no-knock warrants to be issued upon a sworn statement that the police are looking for drugs or guns (usually drugs). Noknock warrants are supposed to be used only where there is risk that people will be hurt or evidence destroyed. But judges issue them routinely.
In City Council hearings held after Spruill’s death, Police Commissioner Ray Kelly said that, of 13,000 search warrants obtained by police from January 2001 through April 2003, a majority were no-knock warrants. He admitted that in 10 percent of the cases, no contraband was found. In the first four months of 2003, police executed 1,900 search warrants and went to the wrong address four times. They used the “flash and bang” grenades 85 times in that period.
The Legal Aid Society proposed legislation in the City Council that the NYPD gather, record and publish statistics about its use of no-knock warrants so that the public can monitor the criminal justice system. Such a bill was introduced with 16 sponsors in 2003, but it was referred to the public safety committee where it died, never to be reintroduced.
The police now require that the use of a stun grenade be approved by departmental officials and supposedly began a program to track the results of warrants. But similar policies existed on paper at the time of the Spruill raid.
It is the ease of ignoring written directives that makes the exclusionary rule so necessary. Short of grievous physical injury and demonstrable innocence, most victims of illegal police searches receive no damages for the violation of their civil rights.
This is exactly what Scalia chose to ignore when he said “times have changed,” and the exclusionary rule is no longer necessary.
The “knock and announce” rule didn’t just serve the right not to be arrested in your pajamas. It protected the public from lies by confidential informants, inadequate police investigations, interagency miscommunication and outdated information. No-knock warrants only serve to increase the dangers to the public and to officers in the line of duty, and they should be issued sparingly, if at all.