Supreme Court gives police more power

Police who burst into a private building without first knocking and announcing their presence can use evidence they discover in a criminal case.

In a boost to aggressive police tactics and a setback to the privacy rights of business and home owners, the US Supreme Court has rejected the legal principle that evidence obtained in violation of the so-called knock-and-announce rule must be excluded from use at a trial.

Instead, the high court said in a 5-to-4 decision announced Thursday that such evidence can be used at trial. The social costs of excluding evidence because of a violation of the knock-and-announce rule are considerable, the high court said.

"Resort to the massive remedy of suppressing evidence of guilt is unjustified," writes Justice Antonin Scalia for the majority. He was joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.

The decision marks a rejection – in the context of knock-and-announce – of a basic safeguard in the criminal justice system established in the 1960s by the high court under then Chief Justice Earl Warren. That court adopted the approach that violations of certain procedural requirements by law enforcement officials could carry the heavy penalty of exclusion of evidence from use at a trial.

The process created an incentive for police officers to not only know the law, but to scrupulously follow it while carrying out their criminal investigations.

"The court destroys the strongest legal incentive to comply with the Constitution's knock-and-announce requirement," Justice Stephen Breyer writes in a dissent, joined by three other justices.

He says he could find no legal precedent supporting the high court's ruling in any of the Fourth Amendment privacy cases decided since 1914. "It represents a significant departure from the court's precedents," Justice Breyer writes. "And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection."

The decision is "very disturbing," says David Moran, a law professor at Wayne State University Law School who argued the case at the Supreme Court. "It seems to rethink the entire exclusionary rule, which is the only thing that has caused the police for the past 50 years to generally comply with the Fourth Amendment."

The decision comes in a case called Hudson v. Michigan. It stems from an August 1998 search by seven Detroit police officers of the home of Booker Hudson. The police obtained a warrant to search for weapons and drugs at Mr. Hudson's home. When they arrived at the front door, an officer shouted: "Police, search warrant." They paused for three to five seconds before one of the officers turned the doorknob and entered the home through the unlocked front door. They did not knock, nor did they wait to see if anyone would answer the door in response to their shout, according to briefs filed in the case.

Police rushed into the house and saw Hudson seated in a chair in the living room. Five other men and women were running throughout the house, the briefs say. In the search that followed, police discovered in the chair in which Hudson had been sitting crack cocaine in plastic bags and a loaded revolver. In Hudson's pockets, police found five rocks of cocaine and $225 in cash.

Hudson was charged with possession with intent to deliver cocaine and possession of a firearm while committing a crime. He was convicted and sentenced to 18 months probation.

On appeal, his lawyer argued that the gun and drugs should have been suppressed because of the improper tactics used by police during the search. The state appeals court upheld the conviction and the Michigan Supreme Court declined to hear the case.

In affirming the conviction, the US Supreme Court said that applying the exclusionary rule to knock-and-announce violations is not "worth a lot" as a deterrent. Instead, it creates an incentive for criminal defendants to attack police conduct, Scalia writes.

"The cost of entering this lottery would be small, but the jackpot enormous; suppression of all evidence, amounting in many cases to a get-out-of-jail-free card," Scalia writes.

• Linda Feldmann contributed to this report.