Hudson and the future
Hudson v. Michigan did not help things much. In that case, the Supreme Court held that drugs or other evidence seized at a home could be used in a trial even if police failed to knock and announce their presence in violation of such a requirement. This ruling was a major shift in Supreme Court rulings on illegal searches by police.
http://www.law.cornell.edu/supct/html/04-1360.ZS.html
That 5-4 decision in
Hudson undercut the rule that evidence found during an unlawful search cannot be used. The decision also indicates that the Court is more likely to rule in favor of the government in such cases with Justice Samuel Alito in the place of retired justice Sandra Day O'Connor.
O'Connor, who was on the court when the case was first argued, had worried about "the sanctity of the home." Alito, on the other hand, sided fully with Justice Antonin Scalia's majority opinion, which emphasized that tossing out evidence acquired in violation of the knock-and-announce rule — but with a valid warrant — could mean "releasing dangerous criminals."
In dissent, Justice Stephen Breyer called the majority’s decision "doubly troubling."
"It represents a significant departure from the court's precedents. It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection." Breyer wrote in his dissent, joined by John Paul Stevens, David Souter and Ruth Bader Ginsburg.
In
Hudson, officers had a warrant to search for drugs and firearms. They called out their presence and, after three to five seconds, entered through an unlocked front door.
Hudson tried to suppress the cocaine that police found, failed and was convicted of drug possession. On appeal, he argued that unless tainted evidence is suppressed, police will not be deterred from barging into homes.
O'Connor was sympathetic at oral argument.
After she retired, the eight remaining justices were deadlocked. The case was re-argued with Alito on the court. His vote gave Scalia the majority. Joining them were Chief Justice John Roberts and Justices Clarence Thomas and Anthony Kennedy.
Scalia maintained that police are sufficiently deterred from improper searches by the right of occupants to bring a
Bivens action. In 1971, the U.S. Supreme Court allowed claims against federal officials who violate an individual's constitutional rights in
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). A
Bivens action is the federal equivalent of a 1983 action and would apply to employees of the Public Health Service, the CDC, and other federal agencies.
Bivens actions, 1983 actions, and related actions against public health officials have similar requirements.
In his dissent, Breyer countered that such lawsuits are rare and often do not bring much relief for victims.
Note that the issue of self defense is specifically noted in the majority opinion. Justice Scalia said this in Part III.A: "One of those interests is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident."
Unfortunately, Justice Scalia’s hostility to whole chapters of 20th-century jurisprudence extends to the notion of self-defense. A lawsuit, in the form of a
Bivens action, seems to be his solution.
Having never fired a Bivens, I will stick with S&W or Colt.
The exclusionary rule's primary purpose is to serve as a deterrent against Fourth Amendment violations. If police know that breaking a particular Fourth Amendment protection will result in the suppression of any evidence they find, there's strong incentive for them to follow the law. Without the application of the exclusionary rule, there really isn’t any effective sanction for police who violate it the 4th Amendment or the announcement requirement. For a while post-
Richards, we seemed to be stepping back from the “assault” type of entry in ordinary cases. Now, post –
Hudson, we may see more of these dangerous searches, conducted by SWAT teams with no prior announcement. And we know that in some of these the “targets” will be innocents, that at best they will be terrorized, some will suffer injury, and some will lose their lives.