Hudson, Booker v. Michigan (06/15/2006)

Question presented: Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a 4th Amendment "knock and announce" violation, as the 7th Circuit Court of Appeals and the Michigan Supreme Court have held, or is evidence subject to suppression after such violations, as the 6th and 8th Circuits, the Arkansas Supreme Court and the Maryland Court of Appeals have held?

BY DANIEL WELCH, MEDILL NEWS SERVICE

On a Thursday afternoon in August 1998, Booker Hudson, Jr. sat in the front room of his Detroit home. Suddenly seven Detroit police officers burst through Hudson's front door and ordered him to freeze.

They had a search warrant for drugs, and Officer Jamal Good found five rocks of crack cocaine in Hudson's pocket. After the police found more drugs and a gun elsewhere in the house, Hudson was charged in Wayne County Circuit Court with possession of cocaine with intent to deliver and illegal firearm possession.

Hudson's attorney, Richard Korn, moved to suppress the evidence found in the home, arguing the police had violated Hudson's 4th Amendment rights by ignoring the knock and announce requirement upon entering his home.

Good testified at an evidentiary hearing that the officers didn't knock on the front door and waited three to five seconds after announcing themselves as the police before they entered. The prosecutor in the case acknowledged that three to five seconds wasn't a reasonable warning for Hudson to answer the door, and conceded the officers violated the knock and announce requirement.

"One officer said, ‘Yeah, I've been shot at before,' and that's why he didn't want to wait," said Timothy Baughman, chief of appeals for the Wayne County Prosecutor's Office.

While Hudson's case was in the trial court, the Michigan Supreme Court ruled in People v. Stevens that evidence found after a knock and announce violation need not necessarily be suppressed.

In spite of Stevens, the trial court judge ruled the evidence found in Hudson's home should be suppressed and dismissed the charges.

"The judge didn't want to apply People v. Stevens," Baughman said. "Basically, the judge said the precedent wouldn't apply in this case."

The Michigan Court of Appeals reversed the suppression order on May 1, 2001, agreeing with the prosecution that the trial judge's ruling was in disagreement with Stevens.

Back in circuit court, a judge found after a two-day bench trial that the prosecution hadn't proven the gun or the drugs found in Hudson's home belonged to him. The judge did sentence Hudson to 18 months probation for the cocaine found in his pocket.

Hudson appealed again, as Korn argued that the conviction was unconstitutional because even the drugs in Hudson's pocket should have been suppressed as evidence after the knock and announce violation. The Michigan Court of Appeals affirmed the conviction without oral argument in June 2004, citing Stevens as the binding precedent for allowing the evidence. The Michigan Supreme Court denied Hudson's leave to appeal.

On June 27, 2005, the U.S. Supreme Court accepted review in the case.

Wayne State University Law School professor David Moran, who will argue Hudson's case, says the 4th Amendment's protection against "unreasonable searches and seizures" is at stake. At issue in this case is whether evidence obtained after a knock and announce violation is the fruit of an "unreasonable" entry, and therefore subject to suppression.

A point of contention in the case is the inevitable discovery doctrine, which requires the police to demonstrate that the evidence could have been discovered through a source other than the constitutional violation, thereby establishing that the discovery was inevitable.

Baughman says this case is not about inevitable discovery at all, arguing instead there is no causation between the entry and the seizure. He argues the Court would be wrong in treating an error in the timing of entry the same as it would treat a more egregious mistake, like failing to obtain a search warrant.

"The entry itself was not illegal; the issue is the manner of entry," Baughman said. "[The officers] were going to go in anyway. The fact that they didn't wait doesn't reverse that."

"The police misconduct had nothing to do with the discovery of evidence," he said.

Moran disagrees, arguing that the evidence was the direct reward of the violation.

"I reject the notion that finding evidence inside the home is independent of the method of entering the home," Moran said.

The 7th Circuit Court of Appeals has agreed with the Michigan Court of Appeals in similar cases, but the 6th and 8th circuits have ruled that evidence obtained after knock and announce violations should be suppressed. Moran said at least 24 states share this standard.

Moran hopes the Supreme Court will reaffirm two cases which he says set a precedent for suppressing evidence, Miller v. U.S. (1958) and Sabbath v. U.S. (1968). In deciding Miller, the Court noted the requirement is "deeply rooted in our heritage and should not be given grudging application."

Moran expects Baughman to argue that remedies other than suppression should be applied, like civil or criminal penalties against the officers, but he said these options fall woefully short.

"The criminal prosecution of officers is never going to happen," he said, citing Mapp v. Ohio (1961), which called other remedies "worthless and futile."

Moran added that he could find only two cases in which a knock and announce victim won a civil lawsuit against the police, and in those cases the victim was awarded only $1.

Baughman questioned the wisdom of giving suspects time to flush drugs down the toilet – or worse, to take the warning time to arm themselves.

Moran said the risks of permitting the violation outweigh the benefits in this case.

"That stuff can happen, but that's one of the costs of living in a free society," he said. "Sometimes the Constitution protects criminals." He added violations may be appropriate if the police have reason to believe that suspects are armed or will try to destroy evidence.

Both attorneys fear the precedent that would be set should they lose the case.

Baughman argues that if the only remedy available for a violation is suppression of evidence, defense attorneys will try to take advantage of the lack of other remedies and successfully exclude credible evidence.

"If your only tool is a hammer, everything looks like a nail," he said.

Moran's fear is that the police will no longer be required to enter a home lawfully.

"The police and prosecution in this case have from day one conceded that the knock and announce requirement was violated," Moran said. "And their attitude is, ‘So what?' If we lose, that will be the national attitude."

On Jan. 9, 2006, oral arguments were heard in the case, and then three months later, on April 19, the case was restored to the calendar for reargument.

On June 15, 2006, the Court issued its divided opinion, concluding 5-4 that although the entry was a knock-and-announce violation, in balancing social costs against deterrence, the exclusionary rule was an inappropriate remedy for such a violation.

Justice Antonin Scalia wrote the Court's majority opinion.

In Scalia's opinion, he characterized the federal exclusionary rule, which dates back to Weeks v. U.S. in 1914 as a rule with serious social costs that the Court has on occasion allowed to be over-extended.

Suppression of evidence," he wrote, "has always been our last resort, not our first impulse."

Justice Anthony Kennedy joined the majority, but cautioned not to read the majority opinion too broadly:

"Two points should be underscored with respect to today's decision. First, the knock-and-announce requirement protects rights and expectations linked to ancient principles in our constitutional order ...The Court's decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law's concern," Kennedy wrote. "Second, the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression."

The dissenters were not so easily appeased. Justice Stephen Breyer wrote the dissent for himself and Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg.

"Today's opinion holds that evidence seized from a home following a violation of this requirement need not be suppressed," wrote Breyer."As a result, the Court destroys the strongest legal incentive to comply with the Constitution's knock-and-announce requirement. And the Court does so without significant support in precedent... Today's opinion is thus doubly troubling. It represents a significant departure from the Court's precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection."

In an attempt to underscore the departure, the dissent includes an appendix enumerating 41 cases since Weeks v. U.S. in 1914 that have required "suppression of evidence seized (or remanding for lower court to make suppression determination) in a private home following an illegal arrest or search."