Think Police Can’t Use Illegally Obtained Evidence Against You? Think Again.

Think Police Can’t Use Illegally Obtained Evidence Against You? Think Again.

Think Police Can’t Use Illegally Obtained Evidence Against You? Think Again.

Thanks to the Roberts Court, there’s no penalty for ignoring a key 4th Amendment protection.


Hudson v. Michigan (2006) is one in a series of cases in which
 the Roberts Court has blessed police officers with extraordinary power. This power authorizes cops to engage in the kind of violent and undemocratic policing that make places like Ferguson and Baltimore look less like American cities and more like the outposts of some totalitarian regime.

The scandal, it turns out, is not bad-apple cops. The scandal is that the conservative justices on the Roberts Court have provided the legal framework for black lives not to matter to the police.

The Constitution be damned: This was apparently the perspective of a Detroit police officer named Jamal Good, who admitted that he routinely violated the long-standing requirement that police “knock and announce” their presence before entering a home. Good found that the Fourth Amendment—with its pesky insistence that searches be reasonable—limited his ability to obtain evidence, so he simply ignored it.

Usually, the Supreme Court decides whether there has been a violation of the Constitution. In Hudson, the Court faced a different question: When a cop admits that he has broken the rules, should there be any meaningful sanction? The issue was whether the classic remedy for Fourth Amendment violations—the “exclusionary rule,” which renders evidence collected through unconstitutional means inadmissible in criminal court—applies to the knock-and-announce rule. In a 5–4 decision, the Court held that it does not.

This holding is an affront to the concept of living in a civilized society. The idea that the police may not barge into a home without some warning has ancient roots. The knock-and-announce requirement has necessary exceptions, including when the police might endanger themselves or risk the destruction of evidence by announcing their presence. But the Court had said, just 11 years before Hudson, that knock-and-announce is a “basic principle” of Fourth Amendment jurisprudence.

To be sure, Hudson does not officially strike down the rule. The Court simply rendered it toothless by assuring the police that there will not be any major sanction if they do not comply with it.

One might think this was bad enough. But frequently in criminal-procedure cases, the conservatives go maximalist, not minimalist. Thus Justice Antonin Scalia, writing for the majority, took the opportunity to mount a full-on assault on the exclusionary rule itself.

This was not the surly and bombastic Scalia of recent term; this was the reasonable-sounding and earnest Scalia, who can be very persuasive. It is not until you read Justice Stephen Breyer’s dissent that you realize Scalia’s opinion is made up of elegant lies.

The first lie is about whether the police have any meaningful incentive to follow the knock-and-announce requirement after Hudson. Scalia “assumes” that they do, because they can still be sued. In other words, the person whose home Good illegally entered should obtain a lawyer, who can persuade a jury to award damages.

That ain’t gonna happen, and Scalia knows it. It’s the rare lawyer who would take such a case: Even if the plaintiff won, the damages would be so low that they wouldn’t cover the costs of litigation—and the plaintiff would probably lose. Jurors are not especially sympathetic to people like Booker T. Hudson, who, Good’s unconstitutional search revealed, was in possession of cocaine and a gun.

This is why, in a landmark case in 1961, Mapp v. Ohio, the Supreme Court decided that the exclusionary rule was the only effective way to enforce the Fourth Amendment. Without the remedy of throwing out evidence at trial, the Court said, the amendment is just “a form of words.”

Since Mapp, Scalia argued, there have been “wide-ranging reforms in the education, training, and supervision of police officers.” That claim was laughable to African-Americans when Scalia wrote it in 2006, and since then it has come to seem laughable to many other Americans as well. That brings us to the second lie. Scalia cited a report by the esteemed criminal-justice scholar Samuel Walker to support his idea that the exclusionary rule was no longer necessary to make the police comply with the Constitution. After the case came down, Walker wrote an op-ed titled “Thanks for Nothing, Nino,” in which he stated that Scalia had “twisted my main argument to reach a conclusion the exact opposite of what I spelled out in this and other studies.”

Scalia’s third lie is that the exclusionary rule is intended to be the remedy of last resort. To the contrary, as Breyer’s dissent noted, there were only two kinds of cases in which the rule had not been applied, and Hudson didn’t fit into either group. To drive the point home, Breyer attached an appendix listing every case in which the Court had applied the exclusionary rule since 1914, when it was created.

But Scalia is not especially interested in law. He is interested in power, which on the Supreme Court means five votes. Hudson can thus be seen as a signature victory in a long-running conservative campaign to abolish the exclusionary rule.

Just two weeks after the case was decided, Chief Justice John Roberts (who helped launch the campaign as a young lawyer in the Reagan administration) scored another victory by refusing to apply the exclusionary rule to a foreign national who’d been arrested in violation of an international treaty. Two years later, he created an even bigger exception, holding that the rule does not apply when the police make “good faith” mistakes.

The news is not all bad. The Roberts Court has been wary of the privacy-invading capabilities of new technology, requiring the police to obtain warrants before they can use GPS devices to conduct prolonged surveillance and before they search smartphones.

But when it comes to Fourth Amendment jurisprudence, and to criminal-justice matters more generally, the steadier drumbeat has been on the other side. Take, for example, Connick v. Thompson, a 2011 case involving an innocent man who had been wrongly convicted of murder on the basis of illegally withheld evidence. The 5–4 conservative majority held that prosecutors couldn’t be liable for “a single act of wrongdoing” and reversed a jury’s award of $14 million to John Thompson for the 18 years he spent on death row.

There is also Bowles v. Russell, a 2007 case in which the conservative justices ruled that federal procedures prohibited an appellate court from granting an appeal to Keith Bowles, who had been convicted of murder, because he had filed his motion too late—even though the district court had mistakenly given him the wrong deadline.

As Justice David Souter wrote in dissent on Bowles, “It is intolerable for a judicial system to treat people this way.” History may record that line as the appropriate epitaph for many of the criminal-justice decisions by the Roberts Court.

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