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In 1998, the Detroit police, armed with a warrant, conducted a search of Booker T. Hudson's home. The police announced themselves but did not knock. They waited a few seconds, entered his home, and seized drugs and a gun. End of story, right? Wrong. There is no question Hudson was guilty of possession of various illegal substances. But there is also no question the cops messed up. Since the 1300s in England, the police have been expected to observe the "knock and announce" rule. The Detroit cops didn't knock. Their search, under U.S. law as understood until last week, was illegal. And under our law, at least until last week, evidence gathered in an illegal search must be "excluded." The so-called "exclusionary rule" derives from a little thing called Amendment IV to the Constitution of the United States. Here is how that amendment reads, in total: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants, shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." One watches TV cop shows and hears about "probable cause" and "unreasonable search and seizure." But one seldom hears about the Fourth Amendment. Well, thanks to the Fourth Amendment, which protects the right of all of us to be secure in our persons and our homes, police and prosecutors must obtain a warrant to search a home. They must show a judge probable cause to obtain that warrant -- why there is good reason to believe that illegal drugs or firearms might be in a person's house, for example. And the police must "knock and announce" before they enter the home they are to search. If they do not knock and announce, the search is unreasonable. And the evidence gathered is excluded. Last week, the U.S. Supreme Court ruled that such evidence could be used. Knock and announce did not apply to Booker T. Hudson. The decision was 5-4. Justice Antonin Scalia said the centuries-old rule, and decades of settled U.S. law reiterating it, was old-fashioned and no longer necessary. (This is "conservative" jurisprudence?) Not to worry, Scalia said: The police are better than they used to be. He said that when cops do break the rule, the citizen could simply sue in civil court. And Scalia derided "knock and announce," reducing it, so far as the exclusionary rule is concerned, to "the right not to be intruded upon in one's nightclothes." But of course the Fourth Amendment is not about the right not to be intruded on in one's nightclothes. It is about the right not to be intruded upon without due process of law. And, for centuries, due process was to knock and announce. Justice Scalia dismissed ages of legal tradition with the wave of a hand. If all searches are reasonable, by definition, the Fourth Amendment is gone; obliterated. And the government grows stronger against the individual in an era of an ever-enlarging Big Brother. If, in the time of the anti-terrorist state, no search is unreasonable, the state has absolute power. The Fourth Amendment is not about making life hard for police officers and easy for criminals. It is not about a right to "privacy," for there is no express right to privacy in the Constitution. It is about the people's right to "be secure" in their persons and homes -- the right of the individual to be secure against the state, no matter how large the state and how small the individual. The state may arrest or incarcerate the individual, but it must follow a set and orderly and expectable process. It must make its case. And its power can never be absolute. The Fourth Amendment is about the right of the single human being to be treated with dignity and respect under our law, no matter what he may have done or what a prosecutor thinks he may have done. If Justice Sandra Day O'Connor had stayed on the court, this case would have come out the other way. It had to be reconsidered in conference so her replacement, Justice Samuel Alito, could vote. O'Connor was a conservative from Arizona. She understood that state power comes at the expense of individual rights. In this case, Alito and the new chief justice, John Roberts, voted for state power. When Roberts and Alito were nominated and confirmed, the nation was assured by the president and his backers that these were no radicals. They might be conservative judges, but they believed in the Constitution. Well, thanks to their votes, one key component of the Constitution has been forever diminished. Throwing out centuries of law sounds pretty radical. It sounds far more radical than Earl Warren and Hugo Black asserting that the Constitution held the key for racial integration of our nation. Scalia is a dangerous radical, and anyone who agrees with diluting the Fourth Amendment, because of ideology, stupidity, or obsequiousness, is too. |
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