Funmurphys: the Blog

Hudson vs. Michigan, Walker vs. Scalia

The Post-Dispatch ran an op-ed by Samuel Walker that claimed Justice Scalia misused his research in the Hudson vs. Michigan decision that limited the exclusionary rule: that is that evidence obtained in violation of the constitution cannot be used in court.

Justice Scalia's (majority) Opinion:

This Court has rejected “[i]ndiscriminate application” of the exclusionary rule, United States v. Leon, 468 U. S. 897 , holding it applicable only “where its deterrence benefits outweigh its ‘substantial social costs,’ ” Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357 . Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining the evidence. The illegal entry here was not the but-for cause, but even if it were, but-for causation can be too attenuated to justify exclusion. Attenuation can occur not only when the causal connection is remote, but also when suppression would not serve the interest protected by the constitutional guarantee violated. The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable. Pp. 3–7.

(c) The social costs to be weighed against deterrence are considerable here. In addition to the grave adverse consequence that excluding relevant incriminating evidence always entails—the risk of releasing dangerous criminals—imposing such a massive remedy would generate a constant flood of alleged failures to observe the rule, and claims that any asserted justification for a no-knock entry had inadequate support. Another consequence would be police officers’ refraining from timely entry after knocking and announcing, producing preventable violence against the officers in some cases, and the destruction of evidence in others. Next to these social costs are the deterrence benefits. The value of deterrence depends on the strength of the incentive to commit the forbidden act. That incentive is minimal here, where ignoring knock-and-announce can realistically be expected to achieve nothing but the prevention of evidence destruction and avoidance of life-threatening resistance, dangers which suspend the requirement when there is “reasonable suspicion” that they exist, Richards v. Wisconsin, 520 U. S. 385 . Massive deterrence is hardly necessary. Contrary to Hudson’s argument that without suppression there will be no deterrence, many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline. Pp. 8–13.

Prof Walker's complaint:

First, I learned that Justice Antonin Scalia cited me to support a terrible decision, holding that the exclusionary rule -- which for decades prevented evidence obtained illegally by police from being used at trial -- no longer applies when cops enter your home without knocking.

Even worse, he twisted my main argument to reach a conclusion the exact opposite of what I spelled out.

The misuse of evidence is a serious offense in academia as well as in the courts. When your work is manipulated, it is a violation of your intellectual integrity. Since the issue at stake in the Hudson case is extremely important -- what role the Supreme Court should play in policing the police -- I felt obligated to set the record straight.

Scalia quoted my book, "Taming the System: The Control of Discretion in American Criminal Justice," on the point that there has been tremendous progress "in the education, training and supervision of police officers" since the 1961 Mapp decision, which imposed the exclusionary rule on local law enforcement.

My argument, based on the historical evidence of the last 40 years, is that the court of Chief Justice Earl Warren in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court's interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.

Scalia's opinion suggested that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing.

To the contrary, I have argued that the results reinforce the Supreme Court's continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.

The ideal approach is for the court to join the other branches of government in a mix of remedies for police misconduct: judicially mandated exclusionary rules, legislation to give citizens oversight of police and administrative reforms in training and supervision. No single remedy is sufficient to this very important task.

I have to say I don't think the Professor made his case against the Justice. The Justice claims that police misbehavior is deterred internally to the police by increased professionalism and externally by civil suits. I have no doubt that the data in the good Professor's book supports that claim; however, the Justice has a different opinion of the future of deterence with a more limited exclusionary rule than the Professor. Namely, the Justice feels that the reforms have become self supporting, wheras the Professor feels that without the spur of the exclusionary rule the police, despite the risk of civil lawsuit and their increased professionalism, will backslide. The complaint in fact boils down to "Justice Scalia has a different opinion of a future course events", not the stated complaint that "Justice Scalia misused my research".

Perhaps Prof. Walker will next take up the curious case of Goldberg vs. the Star-Tribune.

However, let's look at the substance of the decision. Let's take up Justice Breyer's dissenting (minority) opinion:

In Wilson v. Arkansas, 514 U. S. 927 (1995) , a unanimous Court held that the Fourth Amendment normally requires law enforcement officers to knock and announce their presence before entering a dwelling. Today’s opinion holds that evidence seized from a home following a violation of this requirement need not be suppressed

As a result, the Court destroys the strongest legal incentive to comply with the Constitution’s knock-and-announce requirement. And the Court does so without significant support in precedent. At least I can find no such support in the many Fourth Amendment cases the Court has decided in the near century since it first set forth the exclusionary principle in Weeks v. United States, 232 U. S. 383 (1914) . See Appendix, infra.

Today’s opinion is thus doubly troubling. It represents a significant departure from the Court’s precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection.

... [Lots of legal citations]

There may be instances in the law where text or history or tradition leaves room for a judicial decision that rests upon little more than an unvarnished judicial instinct. But this is not one of them. Rather, our Fourth Amendment traditions place high value upon protecting privacy in the home. They emphasize the need to assure that its constitutional protections are effective, lest the Amendment ‘sound the word of promise to the ear but break it to the hope.’ They include an exclusionary principle, which since Weeks has formed the centerpiece of the criminal law’s effort to ensure the practical reality of those promises. That is why the Court should assure itself that any departure from that principle is firmly grounded in logic, in history, in precedent, and in empirical fact. It has not done so. That is why, with respect, I dissent.

Let's do what it seems all Supreme Court Justices do these days - ignore precedent and examine my own unvarnished judicial instinct. The goal of the judicial system is to punish the guilty and exhonerate the innocent. Ideally we would do so perfectly, but we undertand that nothing in this life is perfect, and so in America we like to see the inevitable tradeoffs bias the system to exhonerating the innocent over punishing the guilty.

So how does the exclusionary rule fit in? If you haven't committed a crime (i.e. innocent), then there isn't any evidence to be excluded. However, if you have committed a crime, then the evidence is excluded and you get to "get out of jail free. In sum, it perversely allows the guilty to go free but does nothing for the innocent.

At first blush the exclusionary principle seems to actually run counter to what we want a judicial system to do. However, what are the other remedies for the innocent? Civil suits? Yes, in the case of great wrongs, but for the person who suffers little economic loss and only moderate or less non-economic loss such suits don't offer much remedy. That leaves us with civilian review boards and internal policing. Perhaps I'm too hard on government agencies, but my gut tells me that in either case more than the benefit of the doubt will go the police, and only the most flagrant cases will result in any discipline to the police.

The exclusionary rule reminds of the onetime taboo against children out of wedlock -- it served the broader interests of society while being, let's face it, unjust to the individuals it was directed against.

So I have to agree with Justice Breyer, and Professor Walker, that in our opinion, the exclusionary rule (as preverse as it is) is vital to keeping the police from abusing their authority and infringing on our rights. Better that one criminal go free than 10 people have their rights trampled. It is one of those rules that arises from the wisdom of experience, and I'm sorry to say Justice Scalia's reasoning in setting aside such a bright line rule is best described as airy fairy. I have to hope that if this experiment turns out to be a bust, that is if the police escalate the number of unconsititutional no-knock entries, the Supreme Court will treat this decision with as much respect for precedence it showed others and return to the strong but unpopular medicine of the exclusionary rule.