Thursday, June 15, 2006

Knock, knock: Whoops, we're already in.

So, apparently, according to Tony Scalia--insert relevant expletive here--and four of his buddies on the Supreme Court, it is too much to ask that police with search warrants knock and wait 15-20 seconds before breaking down the doors of the homes they are permitted to search. You see, the Constitution (Amendment IV) has been interpreted since the beginning of the Republic as guaranteeing that police who are executing such warrants knock and announce themselves; i.e., a search warrant is a warrant to search, not to break in and ransack, otherwise we could not, as the Amendment promises, be secure in our property and houses. And, since laws without penalties aren't really laws at all, the courts have interpreted this to mean that if the police don't announce themselves and don't give people a chance to come to the door, they can't use the evidence they obtain. If the police violate my rights, in other words, it becomes harder for them to make their case.
In a majority decision today, Scalia (writing for four of the majority--Kennedy wrote a concurring opinion) stated that, since the police forces are much more professionalized than they were in the past, it just isn't fair to throw out this evidence when they forget to knock or announce themselves. Make sure you understand the logic--because the police are more professional than they were in the past, we should not penalize them at all for when they act unprofessionally. He, of course, did not deny the constitutional principle that the police must knock and announce themselves, he simply stated that there is no reason to impose any penalty when they fail to do so.
Imagine that you are a police officer executing a warrant on a suspected drug house. If you are also a rational police officer you are probably going to suspect that if you announce yourself, the residents of the house will try to destroy evidence. Now you know that there will be no penalty for not announcing yourself. Will you ever knock?
If the so-called originalists don't even care about the rights that have always been found in the Constitution, where are we headed? And, this is the Court we are stuck with for some time to come.

13 comments:

RottweilerTOM said...

Well put! But you know this "activist majority's" plung into law & order, is a response to the utter unprofessional, and incompetence of our "trained" police and detectives for decades of letting the criminals walk. So suppose police have the probable cause and 2) they arrive and knock AND ANNOUNCE (by the way eshewing from announcing their presence is what is more scarier for me) wouldn't a trained and professional officer find or discover the illegality most of the time when confronted with it and make the proper arrest? So you therefore weigh, will your arrest and conviction be more stronger by breaking in without warning on the one hand versus knocking on the door and annoucing to a place you most likely will find the illegality in place anyway??? Obviouisly the former has much more dire consequences to everything we cherish in this Republic, our right to privacy!!!

What the Scalia Court accomplished was getting to the ends at all costs, while ignoring the means to which is most sacred to me: my privacy in my own home!!!

Tyler said...

That is exactly what is scariest to me, too, Tom. Not only am I almost always in the bathroom or in some state of undress when anyone comes to the dress, the UPS man, the postman, etc., but, since the police have been having a hard time figuring out whether they are at the right or wrong address, I am worried about what happens when they bust into my home (unannounced) but they really have a warrant for the place next door. Of course, Scalia doesn't worry about that, since the idea of a police state doesn't appear to trouble him and his ilk at all.

Tyler said...

Of course, I meant when they come to the door, not to the dress.

RottweilerTOM said...

The Cato Institute proffered a amicus curiae brief that evidenced too many times police go to the WRONG address in the first place, so how Alito and Roberts whom I have more faith than Scalia for a reasoned opinion, missed this is beyond me!!!

And we shouldn't be "victimized" by the neighborhood we live in. While I live in Northpark it is quite conceivable a police officer knowing the region, would mistake my residence with one down the street in the alley where I know some nefarious behavior is underway.

Of course, if a Hot cop breaks in then my whole sensitivity to this issue is out the window...(I AM SO GAY)!!!!!

RottweilerTOM said...

I have a solution to my fears. I am getting ANOTHER rottweiler so let the Scalia types try to break in out of mistaken identity!!!!

Tyler said...

Well, you need another one, because honestly, Enya would be more likely to lick them or see if they had any food than attack.

I have no more faith in Alito (architect of the theory of the current imperial presidency, with the ability to interpret Congress' intentions for itself and unanswerable to the courts) than Scalia. I think we are sunk for a long time to come.

Freedom is definitely on the march away from the private citizen.

John said...

I can kind of see the other side of this issue. Our legal system operates on the idea that it is better to let a criminal go free than to convict an innocent person, but the worst that could happen to you if the police mistakenly broke down your door is that you’d have to get a new door. Unless they actually caught you in the act of mailing out kiddie porn while doing coke off a hooker’s vajay-jay, nothing they found would be admissible evidence since there was no search warrant for your house. (Although I could be wrong about that; my knowledge of the law is based entirely on CSI re-runs.) On the other hand, if the police are at the right house, you can flush your whole stash down a toilet in 20 seconds, so is it better to let a criminal go free than to inconvenience an innocent man?

Not saying I totally buy into it, but that is probably along the lines of the law enforcement side of the argument.

And I agree, more rotties. They are the best dogs.

Tyler said...

It's better to let an innocent man occasionally go free than to have created a society in which I know that the police could, at any moment, break down my door, or every conversation, no matter how banal, might be overheard by the government, or where we imprison people who may just have been in the wrong place at the wrong time for three or four years without judicial recourse. Not a big fan of the all-encroaching police state. And, as a rule, I am suspicious of the "if you're not doing anything wrong, you have nothing to fear" defense.

John said...

I agree, and I'm no more in favor of the government's steady usurpation of my rights over the past five years than you, but there's a huge difference between the police being able to break down your door and come after you, and the police accidentally breaking down your door while looking for someone else (which they can still do now anyway, they just have to knock first.) It's fun to argue Orwellian worst-case scenarios, but that not what this amounts to.

Tyler said...

Actually,part of the point is that they don't have to knock first. Another part of the point is that the Court seems to be of the opinion that even when the police engage in poor and technically illegal conduct, this does not mean that the fruits of this conduct are in any way suspect. Why be the cop who respects civil liberties when you get more evidence (and there's no penalty) for not respecting them?
And, in spite of Scalia et al's faith in our professional police force, I grew up in a place where a good percentage of the police were little better than thugs with uniforms. And, since just such a situation is what led to the Bowers and Hardwick case, where the police entered the wrong house, but in the process found a man committing sodomy and then prosecuted him for it, I am more than a little worried about the implications for the police entering homes willy-nilly, especially with a majority on the Court now who don't believe that what one does in one's bedroom with all and only consenting adults is immune from criminalization. I think now is a time when we need to become especially jealous of our privacy and liberty.
Orwellian situations don't come about all at once, they start with small and insignificant ceding of our rights with little or no objections.
And, just because I'm paranoid....

RottweilerTOM said...

I would like to add, due to political pressures et. al. for prosecution of simply in nefarious situations (i.e. I drive with Tyler, he gets pulled over for a alleged dui, I am in his car at the same time with my pants down (sorry Fernando) Tyler gets ticketed and arrested for a DUI, the militant cop who despises homosexuals issues me a ticket for public nudity at (at the least) so the inherent police power to issue me a ticket or make an arrest is not only a powerful tool but the pressure on the arresting officer no matter that he despises homos is so overwhelming that he has now two issues he can report to his officer evidencing that he is "doing his job." Simplistic yet this theory would easily apply to a drug neighborhood, the cops have a search warrant after very little convincing to a judge, goes to the wrong drug house (which happens routinely) and see's Bower and Hardwick making love or having sex, the pressure is to come up with something to negate the negligent actions of the officers for the "inconvenience."

John said...

Actually,part of the point is that they don't have to knock first.

Actually, they do. And if they don't, you can still sue the city for violating due process, you just can't have your criminal case thrown out. Which, I think, is the spirit of this ruling: the deterrent for violating procedural code does not also need be a reward for criminals.

And, since just such a situation is what led to the Bowers and Hardwick case, where the police entered the wrong house, but in the process found a man committing sodomy and then prosecuted him for it,

If the officers had broken into a house in which a rape or murder were taking place and stopped that, would you still be lamenting it? It is, and should be, the duty of the police stop a crime when they see it. The issue with Bowers and Hardwick is not police procedure, but sodomy laws, since the police wouldn't have been able to arrest the men if homosexual behavior hadn't been illegal in the first place. More importantly, that happened before this ruling, so whatever protection the knock and wait rule provided us with was in place at the time, and still didn't do anything.


I am more than a little worried about the implications for the police entering homes willy-nilly,

Again, this ruling doesn't give police the right to enter into houses without a warrant, or even that they don't have to announce themselves. It simply means that if the police have probable cause to believe you have committed a crime and will have evidence of it at your house, obtain a warrant from a judge to search your house, and then find that evidence at your house, you don't get to skip jail because they didn't knock first. If they do forget to knock first, you can sue the pants off of them in a civil court for violating your civil rights, but you still have to pay for the crime you committed.

Tyler said...

No, I wouldn't be troubled by the police stopping a rape or murder in process, but I would be troubled by them going door to door and peeking in, just to make sure that none are happening. And, while I don't think that this ruling is tantamount to allowing that, I think it is a step in that direction (especially when taken together with the recent trend in the winnowing of civil rights). And I wonder what the ultimate implications of this kind of ruling are for, for instance, confessions elicited under duress. By the same reasoning, these should be admissible--of course, I could always sue afterward for having been beaten, whether I am or am not guilty. Now, of course, I don't want the guilty to go free, but because I care about liberty, I also want the police and the state pretty heavily bound.
The advantage of the guilty getting to skip jail when the police screw up is that it gives a real (not ten years down the road in a civil suit that no convicted felon will ever win) impetus not to violate civil liberties.