HIGH COURT BACKS NO-KNOCK SEARCH
Ruling favoring prosecutors is seen as a conservative shift on the bench
By GINA HOLLAND
Associated Press
WASHINGTON - The Supreme Court's conservative shift has paid off for police.
Justices made it easier Thursday for officers armed with search warrants to barge into homes without knocking or waiting. Evidence collected in those searches doesn't have to be thrown out, the justices decided 5-4.
The major government victory was secured with the votes of new Chief Justice John Roberts and Justice Samuel Alito, President Bush's picks for the court.
The ruling cheered conservatives, including some who were surprised after Alito's first written opinion came last month in a unanimous ruling in favor of a South Carolina death row inmate.
"He seems to be so far somewhat leaning to the prosecution side in the close cases," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. "It's nice to have your expectation confirmed."
Radley Balko, a policy analyst at the Cato Institute, said: "If you're concerned about civil liberties it doesn't bode well. I think now a pretty solid majority is going to be reliably coming down on the side of the government."
It was a significant rollback of earlier rulings protective of homeowners, even unsympathetic ones like Booker Hudson, who had a loaded gun next to him and cocaine rocks in his pocket when Detroit police entered his unlocked home in 1998 without knocking.
The court's five-member majority said that police blunders should not result in "a get-out-of-jail-free card" for defendants.
Dissenters air concerns
Dissenting justices predicted that police will now feel free to ignore previous court rulings requiring officers with search warrants to knock and announce themselves to avoid running afoul of the Constitution's Fourth Amendment ban on unreasonable searches.
"The knock-and-announce rule is dead in the United States," said David Moran, a Wayne State University professor who represented Hudson. "There are going to be a lot more doors knocked down. There are going to be a lot more people terrified and humiliated."
Supporters said the ruling will help police do their jobs.
"People who are caught red-handed with evidence of guilt have one less weapon to get off," Scheidegger said.
The case provides the clearest sign yet of the court without Justice Sandra Day O'Connor.
Hudson had lost his case in a Michigan appeals court. Justices agreed to hear his appeal last June, four days before O'Connor's surprise announcement that she was retiring.
O'Connor was still on the bench in January when his case was first argued, and she seemed ready to vote with Hudson. "Is there no policy of protecting the homeowner a little bit and the sanctity of the home from this immediate entry?" she asked.
She retired before the case was decided, and a new argument was held this spring so that her successor, Alito, could participate, apparently to break a 4-4 tie.
Kennedy moderating force
Four justices, including Alito and Roberts, would have given prosecutors a more sweeping victory but did not have the vote of Justice Anthony M. Kennedy, a moderate conservative.
Kennedy joined in most of the ruling but wrote to explain that he did not support ending the knock requirement.
"It bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry," said Kennedy, who is expected to be an important swing voter at the court.
Kennedy said that legislatures can intervene if police officers do not "act competently and lawfully." He also said that people whose homes are wrongly searched can file a civil rights lawsuit.
Justice Antonin Scalia, writing for the majority, said that there are public-interest law firms and attorneys who specialize in civil rights grievances.
Detroit police acknowledge violating the knock-and-announce rule when they called out their presence at Hudson's door, failed to knock, then went inside three seconds to five seconds later.
The court has endorsed longer waits, of 15 seconds to 20 seconds. Hudson was convicted of drug possession.
"Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house," Scalia wrote for the majority.
Four justices complained in the dissent that the decision erases more than 90 years of Supreme Court precedent.
"It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection," Justice Stephen Breyer wrote for himself and Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.
Breyer said that though police departments can be sued, there is no evidence of anyone collecting much money in such cases.
The case is Hudson v. Michigan, 04-1360.
