HUDSON v. MICHIGAN

Print this transcript Transcript: 

Argument of David A. Moran

Chief Justice Roberts: We'll hear argument in Hudson versus Michigan.

Mr. Moran.

Mr. Moran: Mr. Chief Justice, and may it please the Court--

Over the last 50 years, courts in virtually every American jurisdiction have suppressed evidence seized inside homes following knock and announce violations... including this Court, on two occasions.

Those suppression orders reflect an understanding of two points key to this appeal.

The first point is that the manner of entry... and, in particular, a knock and announce violation... is not somehow independent of the police activity that occurs inside the house.

And, as this Court directly recognized in Wilson, the reasonableness of police activity inside a home is dependent on the manner of the police entry.

Justice O'Connor: May I ask you whether there are statutes in various States that allow an officer to get a no knock warrant?

Mr. Moran: Yes, there are, Justice O'Connor.

Justice O'Connor: And does Michigan have such a statute?

Mr. Moran: I do not believe so, Justice O'Connor.

Justice O'Connor: How common are those statutes?

Mr. Moran: I believe about half the States have such no knock... no knock statutes.

So, in Michigan, a police officer... if the... if the circumstances on the scene justify a no knock entry, then the officer is permitted, by case law and, of course, by the precedents of this Court, to go ahead and do so.

Justice O'Connor: Why would an officer, without such permission, want to make a no knock entry while possessing a warrant--

Mr. Moran: Well--

Justice O'Connor: --a search warrant?

Mr. Moran: --as this case illustrates, sometimes officers believe that it is to their advantage to perform a no knock entry, or to fail to comply with the knock and announce requirement.

And that is why--

Justice O'Connor: Why?

Mr. Moran: --Well, Officer Good apparently thought that his safety would be better served he if disregarded the knock and announce requirement; and so, he candidly testified, at the evidentiary hearing, that it's essentially his policy, in drug cases, to go in without a... without performing the necessary knock and announce.

And that was 1 year after the... this Court's decision in Richards, saying that there is no per se exclusion of drug cases from the knock and announce requirement.

But that brings me to the second reason why courts have almost universally, until the Stevens case in 1999, held that suppression of evidence is necessary, and that is deterrence; because, without the suppression of evidence, there is very little chance that the officers will be deterred from routinely violating the knock and announce requirement, from adopting a sort of personal violation of the requirement, just as--

Justice Scalia: I don't know, I'd be worried... you know, bust in somebody's door... that the homeowner wouldn't shoot me.

Without announcing that I'm the police, he had every reason to believe he's under attack.

Isn't that a considerable deterrent?

Mr. Moran: --Yes, that's the one purpose of the knock and announce requirement that doesn't protect the homeowner's interest, that protects the officer's interest--

Justice Scalia: Exactly.

Mr. Moran: --against being shot.

Justice Scalia: Right.

Mr. Moran: However, what we'll see then, if there is no exclusion of evidence following knock and announce rules, are entries precisely like the one we have here, where the officers will, in fact, announce... they yell, "Police, search warrant"... but then they'll immediately go in.

Officer Good said that he went in real fast.

He went in, and it took him just a few seconds to get in the door.

So, that's what they'll do.

They'll announce... some officers will announce, because they'll want the--

Justice Scalia: Yes.

Mr. Moran: --people inside to know that they're police, but they will not wait for a refusal, and they certainly will not wait for a reasonable amount of time for some--

Justice Scalia: I'm not sure I agree with a point that you make in your brief that civil actions simply are of no use.

That might have been the case when we first adopted the exclusionary rule, but our docket is crowded with 1983 cases brought by prisoners, brought by convicted felons, and many of these cases are successful below.

What reason is there to believe that that wouldn't be an adequate deterrent?

Mr. Moran: --Simply, Justice Scalia, that, as far as we can determine, no one wins a knock and announce case, or we haven't been able to find a single case in which someone has actually recovered damages for a knock and announce violation.

So, if this--

Justice Ginsburg: Is that because the damages are slight or because there's a defense that is successful?

What has been the defense in these tort cases?

Mr. Moran: --Both, Justice Ginsburg.

First of all, in many cases, such as this one, where the police don't actually destroy the door, it would be very hard to quantify the damages, and it would be very hard to find a lawyer to take a case such as this.

But the second barrier is the various immunities, tort immunities.

In Section 1983 actions, there are qualified immunities that make it difficult to win a suit.

And because it is not a bright line as to when the police officers have to knock and announce, and when they do not... that is, Is there a reasonable suspicion that a quick entry or a no knock entry will be met with violence or that the evidence will be destroyed +/?

courts tend to be very generous in granting qualified immunity to officers... that is, concluding that some reasonable officers might have concluded that it was justified to dispense with the knock and announcement requirement.

Justice Scalia: Of course, that same problem exists if the consequence is exclusion of evidence.

Courts are going to view it the same way.

You're not going to avoid that problem by excluding evidence.

Mr. Moran: Well, there... but there is not a qualified immunity defense to the exclusionary rule.

Justice Scalia: Well--

Mr. Moran: And so, if the Court concluded--

Justice Scalia: --Well, I mean, your point is, it's very hard to tell whether they waited long enough, right?

And that's why they don't win a lot of these cases.

But the same thing is going to be true if the consequence of not waiting long enough is the exclusion of the evidence.

The court is going to be very... it's going to be very difficult to tell if they waited long enough, and, as you say, the court is likely to say, you know, "Let it go".

Mr. Moran: --That's true, to some extent, Justice Scalia, but, as an empirical matter, I've cited many cases, in my brief, over the last 50 years where courts from a vast majority of American jurisdictions have found knock and announce violations in criminal cases, and have, therefore, excluded the evidence, including this Court, on two occasions, 1958 and 1968.

So, courts do find knock and announce violations in criminal cases.

Justice Scalia: Our two cases did not... did not raise that issue.

The issue was not decided in those cases, was it?

Mr. Moran: The issue of a knock and announce--

Justice Scalia: Right.

Mr. Moran: --violation leading to exclusion of evidence--

Justice Scalia: Right.

Mr. Moran: --was decided.

The... there was not an inevitable discovery issue raised in those two cases, because those cases predated the inevitable discovery doctrine.

But, of course, in 1958 and 1968, this Court was very familiar with the independent source doctrine.

And, really, the argument that the Michigan Supreme Court has adopted... they call it an inevitable discovery argument; it's really an independent source doctrine.

Chief Justice Roberts: You don't... you don't dispute the application of the inevitable discovery principle here, do you?

Mr. Moran: Not at all, Justice... Mr. Chief Justice.

Chief Justice Roberts: Okay.

Mr. Moran: No, the--

Chief Justice Roberts: And you don't dispute that the purpose of the knock and announce rule is not to allow the targets of the search to dispose of evidence, or anything of that sort.

Mr. Moran: --Absolutely not.

The purpose of the knock and announce rule is to protect the homeowner's privacy rights.

It's one of the core parts of the right of the people to be secure in their homes against unreasonable police invasions.

Chief Justice Roberts: Well, but it's a limited privacy right, of course.

These people have a warrant, right?

Mr. Moran: That's correct.

Chief Justice Roberts: So, how would you describe the privacy interest that the knock and announce rule is protecting?

Mr. Moran: Well, I think this Court has described it well in the... in its most recent cases... in Banks and Richards, in particular, as well as Ramirez and Wilson... that it is a right against being terrified by having the police come in.

It is a right against being embarrassed.

People might be in all stages of undress or in compromising positions when the police come in.

And it is a right against having one's door destroyed.

The English cases, the early English cases, first recognized that it's a right against having one's--

Chief Justice Roberts: So, it doesn't go at all to the items that are the target of the warrant.

Mr. Moran: --No.

Chief Justice Roberts: And so, why should the remedy for the violation be to exclude those items?

The privacy that's protected isn't the cocaine, the weapons, the other items that were discovered.

Mr. Moran: Well, with respect, Mr. Chief Justice, I think you could say the same thing about the warrant requirement.

The purpose of the warrant requirement is also to protect the sanctity and the privacy of the home; it's not to protect contraband that one might have in the home, or whatever it is that the police are looking for.

It's--

Chief Justice Roberts: No, it's to protect privacy in the possessions and papers and effects.

And these are possessions, papers, and effects.

It goes right to what the police are trying to seize, and you have an independent magistrate make a determination that there's probable cause to believe it, et cetera, et cetera.

The knock and announce rule is an entirely... concerned with entirely different things.

And yet, you're enforcing it by excluding the papers, effects, and possessions.

Mr. Moran: --And I think the courts have recognized that it's necessary to enforce it that way, because other methods of enforcing it will not work.

But--

Justice Kennedy: Well, but just--

Mr. Moran: --I think it's--

Justice Kennedy: --just on the point of the causal relation that the Chief Justice was exploring, I mean, there is a causal relation in a but for sense.

We know that.

Mr. Moran: --Yes.

Justice Kennedy: I suppose the position of the Respondent is that the minute there's an entry after the knock violation... the no knock violation... the minute there's an entry, that injury ceases, so that it's different from a warrantless rummaging around through drawers and so forth.

I suppose that would be their argument.

Mr. Moran: I think that is their argument, Justice Kennedy, and I respectfully disagree with it.

As a historical matter, even the early English cases recognized that when an officer illegally entered... a sheriff illegally entered a home with a valid writ, that officer became a trespasser, and the activity that he performed in the home was, therefore, illegal.

In the reply brief, I cited several early American cases, from the 1830s and 1840s, holding that when an officer had a valid writ to seize a debtor's goods, but illegally entered the home, then that writ became no good; and, therefore, the officer... the sheriff, in those cases... could be sued, not only for the illegal entry, but also for the seizure of the goods that he had a valid warrant, or a valid writ, to seize, and that that--

Justice Scalia: Yes, but here it was a warrant to enter the home, not to seize particular goods.

So, the entry of the home was not illegal.

The entering of the home was perfectly okay.

What was illegal was not knocking and announcing in advance.

It seems to me that's quite a different... quite a different issue, and the causality is quite different.

Mr. Moran: --Well, Justice Scalia, I respectfully disagree that the entry was not illegal.

I believe the entry was illegal, because what a warrant authorizes an... a... an officer to do is to make a legal entry.

It does not allow the officer to enter however he pleases; it allows the officer to make an entry that complies with the law... in particular, the fourth amendment.

And so, the entry was illegal.

They could have performed a legal entry.

Justice Scalia: I understand that, but the essence of the violation was not the entering; whereas, in the cases, the old common law cases you're talking about, the essence of the violation was the entering.

Here, the entering was perfectly okay; it was the manner of it, the failure to give the advance notice, that made it bad.

And that, it seems to me, creates a different situation.

Mr. Moran: I think, starting in Semayne's case, the Court recognized that even if the officer would have a right to knock down the door after a refusal of entry was obtained, that if the officer did not wait for that refusal, then the entry was illegal.

And so, I think the common law cases do support... the old English common law cases, starting with Semayne's case... do support the notion that the entry... the entry does become illegal if the officer does not wait for the refusal.

And in this case, of course, the officer did not wait at all for any refusal, candidly admitted that he went in as soon as he could get through the door, as quickly as he could.

Justice Ginsburg: Mr. Moran, would you clarify an answer you gave to Justice O'Connor at the outset of the argument?

You said there is no statutory right to get a no knock warrant.

But did you say, as a matter of case law and practice, that can be done in Michigan?

Mr. Moran: I don't believe so.

I don't believe that Michigan still allows for no knock warrants.

But officers, of course, can perform no knock entries when arriving at the scene, the circumstances justify a no knock entry.

Chief Justice Roberts: You mean, if you had a case where the reason you were arresting the guy is because he's shot through the door the last three times somebody knocked and announced, you still have to knock and announce, under Michigan law?

Mr. Moran: No, I don't think so, Mr. Chief Justice.

I think, in that case, that would satisfy the Richards standard.

In that case, the officer would have particularized suspicions amounting--

Chief Justice Roberts: But he couldn't get a warrant saying that.

Mr. Moran: --I don't believe Michigan has a procedure for granting no knock warrants, not--

Justice Breyer: But that's... that's actually what's disturbing me about this, because I thought the knock and announce rule was a rule that would allow a policeman to go in without knocking and announcing when he has reasonable grounds for thinking he might get shot if he didn't.

So, I... as I read the briefs, I thought maybe that's not how it's being implemented, that the policemen are supposed to run the risk of being shot.

I didn't think that was the situation.

So, I'd appreciate your explaining that to me.

Mr. Moran: --Well, in Richards, this Court said that if there are particular facts about this particular entry that would make an officer have reasonable suspicions that he is going to be shot at or the evidence is going to be destroyed, then the officer may dispense with the knock and announce requirement.

There were no such suspicions in this case, and that's why the prosecution conceded, at the outset and at every step since, that it was a knock and announce violation.

The officers had no information about this particular--

Justice Breyer: Would it be sufficient if the officer says,

"One, this is a drug gang; two, they don't let people into the house whom they don't know; and, three, they have guns? "

Mr. Moran: --That might be sufficient, after Richards, but that's not the facts of this case.

We have none of those facts in this case.

They were serving a warrant, and they had no information that they were going to be in particular danger.

They had no information, for example, that there were drugs, stored near the toilet, that were going to be flushed down.

Justice Stevens: Let me just be sure I understand the hypothetical case, where, three times before, there had been warrants served, and, each time, the homeowner shot at the officer, the fourth time, they could go in without waiting.

Mr. Moran: I think that would be an easy case, Justice Stevens.

Justice Stevens: You think it would, okay.

Mr. Moran: Because then you would have particular facts about this particular residence and the people involved.

I think that would be a very easy case for a no knock entry.

We--

Chief Justice Roberts: But you can't get a warrant that says he can do that.

Mr. Moran: --I don't believe Michigan has that procedure.

Perhaps Mr. Baughman can correct me.

He's a... he's with the prosecuting attorney's office.

But I don't believe Michigan has that procedure.

Not all States do have that procedure.

And, instead, States that don't have that procedure simply leave it to the officer to determine if there are those facts that justify a no knock entry.

So, there are many entries in Michigan, that occur all the time, that do not comply with the knock and announce requirement.

And that's fine, because the officer does, in fact, have the particularized facts justifying a no knock entry.

Justice Kennedy: We've been down this route before in other cases, like Wilson, but it's still a troublesome measure.

It's hard for me to believe that if a person has drugs in the pockets of his trousers or on the... next to the chair where he's sitting, that he wouldn't immediately run and try to dispose them.

I just think that it's ordinary behavior.

And, if that's so, then it would follow that you never have to knock if you're looking for drugs that might be on the person.

Do you have any comment as to that?

Mr. Moran: Well, then that would... this Court, I think, would have to reverse Richards, because Richards said that the fact that it's a felony drug investigation does not justify a blanket exclusion from the knock and announce requirement.

And this Court unanimously held, in Richards, that the knock and announce requirement applies in felony drug cases--

Justice Kennedy: But--

Mr. Moran: --unless--

Justice Kennedy: --But if we say that a likelihood... or that the... or substantial probability that the evidence will be destroyed allows the no knock, why won't that be true in every drug case, other than for what we said in Richards?

Mr. Moran: --Well, because in Richards--

Justice Kennedy: I mean, do people say,

"Oh, they've got me now. "

"I won't get rid of the drugs? "

Mr. Moran: --Well, first of all, Justice Kennedy, I think the law presumes that homeowners will either make an explicit refusal, "No", or will answer the door; and primarily that they'll do the latter.

The presumption of the homeowner that we're talking about is an innocent homeowner, somebody who is either... has nothing to do with whatever the police are looking for.

There are many cases where the police are looking for goods that are not connected to the people who are home.

Justice Kennedy: Well, when there's probable cause to enter, there's no presumption of innocence, is there, or am I wrong?

Mr. Moran: Well, it... with... probable cause is a standard at somewhere around 50 percent, and a very large number of warrants are executed on the homes of people who have nothing, or people who... there is something that the police are looking for, but they don't have anything to do with it; they're third party homeowners.

And, for that reason, the knock and announce requirement recognizes that many, many warrants... many, many searches... will be executed on the homes of perfectly upstanding, innocent people.

And--

Chief Justice Roberts: Do you have... do you have any empirical basis for your statement that many warrants are executed and they don't find anything?

Mr. Moran: --Well, I don't have any statistics.

I'm sure the FBI keeps statistics on at least Federal warrants.

But it's true that in a large number of warrants, the police don't find what they're looking for, because probable cause is a standard that is not particularly high.

Chief Justice Roberts: Do you have any basis for your statement that, in a large number, they don't find what they're... anything that they're looking for?

Mr. Moran: I don't have any empirical evidence, but certainly lots and lots of anecdotal evidence, from reading newspaper accounts of police--

Justice Stevens: And you--

Mr. Moran: --searches.

Justice Stevens: --you don't dispute the fact that presumption of innocence... the presumption of innocence survives an indictment, doesn't it?

Mr. Moran: It does, and I think it--

Justice Stevens: Yes.

Mr. Moran: --survives the search warrant.

Justice Stevens: So probable cause is not enough to eliminate the presumption of innocence.

Mr. Moran: I certainly would argue that--

Justice Stevens: Yes.

Mr. Moran: --Justice Stevens, that probable cause it not a very high standard.

And in... many search warrants are, in fact, served on the homes of people who are not suspected, because they're thought to be the place where stuff was stored, but not be the people who are suspected of doing anything wrong in the first place.

Justice Ginsburg: In--

Justice Scalia: Mr. Moran, these old common law cases you referred to, which held that a failure to knock and announce renders the entry unlawful, what was the consequence, in those cases?

Mr. Moran: Those were cases in which, typically, the sheriff was sued for trespassing.

Justice Scalia: Right.

And the evidence would... if found, was not excluded, right?

Mr. Moran: No.

There was--

Justice Scalia: So, if we wanted to be faithful to those common law cases, we wouldn't exclude the evidence.

Mr. Moran: --I think things have changed, Justice Scalia, since those common law days, for that reason.

Justice Scalia: Well, then you shouldn't have cited the common law case.

[Laughter]

Mr. Moran: Well, Justice Stevens... I mean, excuse me, Justice Scalia, things have changed, in the sense, first of all, that in those days there was a common law writ of trespass.

If one were to file, in Michigan, a complaint for trespass against the sheriff, one would be laughed out of court today, because all that you have is a tort suit, which you have to show an extreme violation... I cited the Michigan statute that requires extreme recklessness on the part of the police officer.

The second point is that in those days the sheriffs were... there were adequate means to control the behavior of sheriffs, because they were seen as arms of the judiciary.

That, of course, was before the rise of the independent police forces that we have today.

And so, the exclusionary rule, of course, was adopted in the late 1800s, early 1900s... in part, in response to the changing circumstances of the police.

The police were no longer under the direct control of the judiciary; and so, different remedies were necessary in order to assure compliance with constitutional rights.

Justice Ginsburg: --In the courts that have allowed this action to go forward, has the rationale been that there is no other effective deterrent to ignoring or violating the knock and announce rule?

Mr. Moran: Yes, Justice Ginsburg.

At last count now, 11 State and Federal appellate courts have directly rejected the Michigan Supreme Court's reasoning.

The Idaho Court of Appeals just joined the list 2 weeks ago, in a... in a case that I... is not cited, because it's so recent.

And they have uniformly... I believe all 11 of those cases have said that,

"Were we to hold otherwise, the knock and announce rule would become meaningless. "

a worry that this Court expressed in Richards.

This Court was very concerned, in Richards, that simply excluding drug cases from the knock and announce rule would make the knock and announce rule meaningless.

And these courts have noted that statement... the courts that came out... this... the decisions that came out after Richards, and have said,

"If that is meaningless, then it would be especially meaningless if we were to exclude the entire knock and announce rule from the exclusionary rule, that there would be virtually no reason for police officers ever to comply with a knock and announce requirement. "

And so, I think the deterrence rationale is a large part of this, and that's what distinguishes this case from the inevitable discovery cases, which the Michigan Supreme Court relied on.

Justice Scalia: Well, I suppose there are a lot of other violations of constitutional rights by the police that are very hard to get at, and that cannot be remedied.

And I suppose we could punish them by excluding all the evidence, as well.

We don't do so, simply because there's no causality.

We insist upon a causal connection between the two.

It's not enough just to say the... this is the only way to stop the police from making the violation.

Mr. Moran: No, it is not enough, but what is critical in this case is that the knock and announce violation goes to the manner of entry, and the Court has long recognized that the two predicates for seizure of goods inside a home, or arrest inside a home, are authority to enter the home, which is not contested here, and a lawful entry.

And if either one of those two predicates is missing, then you have grounds to suppress the evidence; that is, the evidence inside the home is in the fruit of the unlawful entry.

Justice Scalia: What about our opinion in Ramirez, where the manner of entry was such that there was damage to property?

Mr. Moran: I--

Justice Scalia: We didn't exclude the evidence there, did we?

Mr. Moran: --No.

First of all, this Court didn't find that there was a violation in the... in the damage in property; this Court found no... did not find, as a matter of law, any fourth amendment violation.

But I read the Ramirez... that language from Ramirez as saying that as long as the entry remains lawful... and, in Ramirez, the entry was lawful, because there were valid grounds to dispense with the knock and announce requirement.

You had a known dangerous fugitive, who had bragged that he wouldn't be taken alive.

And so, there was every reason for the officers to dispense with the knock and announce requirement.

Therefore, the entry was legal.

They had both authority... that is, the warrant... and they had a valid entry... that is, a no knock entry that was justified by reasonable suspicion that the officers would be met with violence if they did knock and announce their presence.

And so, we... in Ramirez, we have a lawful entry.

The language that's quoted from Ramirez directly says, "the entry remains lawful", or words to that effect.

And you have a different case if you had--

Justice Scalia: Well, what had happened?

Had they broken a window on the way in?

Is that--

Mr. Moran: --That's correct.

Justice Scalia: --Well, the entry remains lawful, despite the fact that the manner of the entry, which included the breaking of a window, was unlawful.

I think what the Court meant was not, as you're portraying it, that, objectively, the entry was lawful.

I think they were speaking as a matter of law, despite the fact that the breaking of the window was wrong, the entry was lawful.

Just as your opponent is saying here despite the fact that there was no knock and announce, the entry was lawful.

Mr. Moran: Justice Scalia, I don't see any language in Ramirez saying that the breaking of the window was unlawful.

I think the breaking of the window... I read the Ramirez opinion as saying the breaking--

Justice Stevens: But even if it was unlawful, it was not unconstitutional.

Mr. Moran: --It wasn't... certainly wasn't unconstitutional.

Often, when the police perform a valid no knock entry, they will damage property.

Typically, they will destroy the door.

And so, the breaking of the window in Ramirez, I don't believe was unlawful.

I believe it was perfectly valid way for the officer to perform the entry; that is, to put the gun through the window in the garage area in order to prevent... they believed that the homeowner had guns there and was going to use the... run to the guns in order to repel the entry.

And so, I believe it was a perfectly lawful entry.

I think what Ramirez was saying was that not all fourth amendment violations bear fruit.

And I agree with that.

We do not have... we do not propound here a theory of everything, having to do with all fourth amendment violations and the fruit that they propound.

We simply say that, with a knock and announce violation that makes the entry unlawful, the evidence found inside the home, and only inside the home, is the fruit of that violation, unless there truly is an inevitable discovery or independent source argument; that is, something independent of the entry, which can't be done here, when the police simply barge in and, in a matter of seconds, perhaps minutes, find the evidence.

So, the--

Justice O'Connor: Mr. Moran, is it undisputed by you that the client would not have disposed of the drugs if the police had waited a few seconds?

Mr. Moran: --Yes, we presume that he would have come to the door.

He was just a few feet from the door, in fact.

He was right in front of the door.

We presume that he would have come to the door, answered the door, admitted the police, and the police would... then would have performed the search.

If the Court has no further questions, I'd like to reserve the balance of my time.

Chief Justice Roberts: Thank you, Mr. Moran.

Mr. Moran: Thank you, Mr. Chief Justice.

Argument of Timothy A. Baughman

Chief Justice Roberts: Mr. Baughman.

Mr. Baughman: Mr. Chief Justice, and may it please the Court--

The metaphor of "fruit of the poisonous tree" is frequently employed when the exclusionary rule is discussed.

And that metaphor is apt.

It is apt, because the sanction of exclusion, which is not, itself, constitutionally required, is designed to deter, and to deter in a specific way to deter by depriving the police of the result... the fruit, the product, the evidentiary advantage that has been gained by their improper conduct.

And so--

Justice O'Connor: Would you agree there is a knock and announce requirement--

Mr. Baughman: --Yes.

Justice O'Connor: --even though there is a warrant?

Mr. Baughman: Yes.

Justice O'Connor: And do you agree that that was violated here, that there wasn't really a knock and announce here?

Mr. Baughman: Yes, there was a... an announcement, but a failure to wait.

There's not... the announcement principles require--

Justice O'Connor: All right.

Mr. Baughman: --not only an--

Justice O'Connor: Now, is exclusion of evidence in these circumstances a deterrent, so that the police would be less likely to do that?

Mr. Baughman: --It may be.

Justice O'Connor: Yes.

Mr. Baughman: But I believe that, before the question of deterrence is reached, the question of causality must be addressed.

This Court has always said that causation is a necessary, though not always sufficient, predicate, for a application of the exclusionary rule.

The way this Court has put it is that it is clear that implementation of the exclusionary rule in particular cases begins with the premise that the challenged evidence is, in some sense, the product of the improper police activity.

So, I believe--

Justice Souter: Well, isn't it--

Mr. Baughman: --the question--

Justice Souter: --the product, here?

I mean, if they had not... if they had not entered, they would not have gotten their evidence.

Their entry, because it violated knock and announce, was unlawful.

So, it is a product, isn't it?

Mr. Baughman: --I think... I think where I would disagree, Your Honor, is that the entry is lawful... in fact, it's not simply authorized, it's commanded by judicial order.

The use of force--

Justice Souter: Well, an entry that conformed with knock and announce would have been lawful.

This entry didn't.

This entry was unreasonable.

So, I don't see how your argument fits the facts.

Mr. Baughman: --The way I distinguish it, and what I... where I believe the distinction lies is that what was improper was not the fact of entry; what was improper was the use of force in entry.

The--

Justice Souter: Well, but--

Mr. Baughman: --knock and announce--

Justice Souter: --I mean, how do you make that distinction?

I mean, it's like the... you know, the Cheshire cat and a... and the smile; you can't distinguish the two.

There was one entry, and that entry violated the knock and announce rule.

Mr. Baughman: --Well, again, the use of force in making the entry violated the knock and announce rule.

The entry itself was commanded by the order of the court.

Justice Breyer: Well, how is that different from saying the entry is lawful, its only problem is, it was done without a warrant?

I mean, you know, he's--

Mr. Baughman: Because if they're--

Justice Breyer: --inside the building; just, unfortunately, the means wasn't right.

No warrant.

Mr. Baughman: --No, if--

Justice Breyer: The means wasn't right.

No knock and announce.

Mr. Baughman: --If there is no warrant, there is no judicial command to enter, so the entry is completely unjustified.

Here, we have not set the appropriate--

Justice Stevens: Well, but you might have probable cause, but just not have the... have the warrant.

So, what is the difference between having probable cause to enter, but failing to get a warrant, and having a warrant, but failing to knock and announce?

Mr. Baughman: --Because the fourth amendment commands that the police not enter without judicial authorization.

The police don't get to make the probable cause decision in advance.

And we wish to have a judge make that decision, so we won't, in hindsight, say,

"Had you gone to the judge, the judge would have found probable cause, so we'll ratify what you did after the fact. "

The entry itself... not just the manner of entry... the entry is invalid, unless the judge authorizes it, or unless some exception exists.

Justice Stevens: Is it your view the entry was lawful or unlawful, in this case?

Mr. Baughman: The fact of entry was lawful.

Justice Stevens: No.

Justice Breyer: So, in fact--

Justice Stevens: No--

Justice Breyer: --if they had a bazooka--

Justice Stevens: --that's not the question.

The actually... actual entry was lawful, yes?

Mr. Baughman: The entry was lawful.

Justice Stevens: Oh, okay.

Justice Breyer: --And the same would be true if what they had was a bazooka, and blew the house up.

[Laughter]

Mr. Baughman: Yes.

Justice Breyer: Yes, okay.

Mr. Baughman: Yes.

The entry would be lawful.

The manner of entry would be unlawful.

And the consequence of that entry would turn on what force was used.

As, in this case, they opened the door and walked in.

There was no... there was no injury to person, there was no injury to property.

Justice Souter: So, basically, your argument rests on the fact that we can draw a distinction between entry and manner of entry.

Mr. Baughman: Yes.

My principle that I am advocating is that any police error in the execution of a search, or in the accomplishment of a search, bears fruit only in relation to the purpose, or purposes, served by the principle violated.

One--

Chief Justice Roberts: It's a--

Mr. Baughman: --has to ask--

Chief Justice Roberts: --It's a... it's a strong argument, on the other side, that if we adopt your position, the officers would have no incentive, other than their own judgment about their personal safety, whether to comply with the knock and announce rule.

Mr. Baughman: --That is if one assumes that the civil remedy... that the 1983 actions has no teeth and has no force, and I don't believe that's true at all.

Justice Ginsburg: What is the experience in Michigan?

The Michigan Supreme Court has had this rule for some time, that you don't exclude the evidence.

Mr. Baughman: Uh huh.

Justice Ginsburg: How many successful 1983 actions have there been--

Mr. Baughman: I am not... I am not aware of any.

On the other hand, like Mr. Moran, I... other than anecdotal evidence, I have no statistical evidence that the police are violating the knock and announce principle since the decision in Stevens.

Justice Ginsburg: --But you have not even one case that you can cite where a 1983 remedy was resorted to and was successful.

Mr. Baughman: In Michigan, I don't.

There are cases cited in our brief where, in fact, there are actions... such actions brought.

There are several recent decisions in the Seventh Circuit, for example, where qualified immunity was denied on a knock and announce violation in the cases in the District Court for trial or settlement.

And there may be many cases that don't make the reports, what actions are brought and settled.

Justice Ginsburg: But you're not aware of any case--

Mr. Baughman: I am not aware of any case--

Justice Ginsburg: --where anyone has recovered--

Mr. Baughman: --And, again, I think Mr. Moran correctly points out, in... many of these cases are resolved by finding that the Richards v. Wisconsin exceptions have been met.

It is not, to me, remarkable that there are not a lot of civil actions.

I believe there are not a lot of violations, because, while no knock entries may occur, they are justified, under Richards v. Wisconsin, in most cases.

This case is an aberration.

Justice Ginsburg: --On the no knock warrant, do you agree that it's not possible to get one in Michigan?

Mr. Baughman: Yes, there is no statute in Michigan where one can go to the judge in advance and say,

"Here are the facts, known to me already, before I even get to the scene, that should justify a no knock. "

That doesn't exist in Michigan.

Michigan follows Richards v. Wisconsin, and, in... had case law, even in advance of that, which simply said,

"Whether known in advance, or whether the facts occurred at the time of the execution of the warrant, if the Richards exceptions are met, you can go in without knocking and announcing. "

So, we do follow that rule.

You just simply can't get advance judicial authorization.

It doesn't exist.

But it is certainly permissible, and it... as Mr. Moran indicated, it happens on a fairly regular basis, because, unlike Mr. Moran, I believe the notion that... even in this case, I'm not saying there was no violation; there was a violation, because the police didn't know in advance that the defendant was sitting in a chair with the cocaine in his pocket, on the chair in front of him, and a gun by his side.

I think that he would have answered the door.

It's highly speculative, and somewhat fanciful, in that circumstance.

Chief Justice Roberts: Do they get to make... do they get to make "inevitable" arguments on their side?

I mean, let's say, as what happened here, or as seemingly happened, the fellow is found near the chair with the drugs.

Can't they argue,

"Well, if you had knocked and you had waited 10 seconds, he would have gotten up from the chair and gone somewhere else? "

And you wouldn't have been able to argue, at trial,

"He was sitting in the chair with the drugs. "

Mr. Baughman: That's true, but the drugs were... in this case, the drugs were in his pocket.

So, it wouldn't have helped him.

Chief Justice Roberts: There was something in the chair, right?

I mean, the--

Mr. Baughman: There was--

Chief Justice Roberts: --the gun, or what--

Mr. Baughman: --The gun was in the... in the chair, but he was only convicted for the drugs in his pocket.

Chief Justice Roberts: --Hmm.

Mr. Baughman: I don't think he... he could say,

"If you would have... I would have gotten up and answered the door; and, therefore, you wouldn't have had to come in without knocking, you wouldn't have had to break the door, you wouldn't have had to scare me. "

Chief Justice Roberts: You wouldn't have been able to tell the jury,

"I was standing next to the chair, because if I had... I obviously would have gotten away from the chair, because I knew that's where the gun was. "

Mr. Baughman: That's... that may well be.

And I want to be clear, I am not here arguing that this Court should decide that there is no circumstance possible where something that occurs in the premises is not causally connected to the failure to knock and announce.

All I'm asking the Court to decide is that causation is required before the exclusionary rule is implemented, and physical evidence found within a proper search of... search of proper scope, pursuant to the warrant, that that is not causally connected to the... to the knock and announce violation.

There may be other--

Justice Scalia: So, you... so, you think it's possible that the defendant could argue that the evidence should be excluded because,

"Had he knocked and announced, I would have run to the toilet and flushed it down, rather than-- "

Mr. Baughman: --No.

Justice Scalia: --"# answering the"--

Mr. Baughman: No, I--

Justice Scalia: --Well, why not?

Mr. Baughman: --I think the only thing he could--

Justice Scalia: That's causal.

Mr. Baughman: --But I think you have to tie the causal connection to the purposes... as I have tried to indicated... to the purpose, or purposes, served by the principle violated.

What is the purpose of knocking and announcing?

And I think... Your Honor indicated... it's to protect against injury to the police, injury of people inside, and property.

It has no purpose to protect against the invasion of the privacy of the dwelling and the discovery of the evidence.

In fact, if the police knew in advance that the defendant might flush the drugs down the toilet, they wouldn't have to knock and announce at all.

So, I think we have to relate the causal question to, What is the principle violated?

What purposes does it serve?

And, in the case of knock and announce, it does not serve the purpose of allowing evidence to be destroyed.

That, in fact, serves as an exception to knocking and announcing at all.

Justice Souter: What do you say the purpose of knock and announce is?

Mr. Baughman: This Court has identified it on several occasions as to avoid unnecessary violence to the property, avoid unnecessary possible injury to people, both to the officers who are executing the warrant and people inside, and to allow the person inside to prepare to answer... as Mr. Moran indicated, if they might be in a state of undress or something, they could avoid that embarrassment.

Justice Souter: So, I take it your argument is that, except in cases in which the people inside the house are not dressed, or cases in which there is, in fact, a gun battle of some sort, that a knock and announce violation will, in fact, never be the cause of any damage at all.

Mr. Baughman: It will never be the cause of the discovery of the physical evidence found--

Justice Souter: No, no, it... no, but it'll never be the cause of any compensable damage at all.

Mr. Baughman: --Well, if a--

Justice Souter: Because I take it your argument is what you can recover from requires causation.

And what I mean by "causation" is the causation of the harms which the rule is intended to avoid.

Mr. Baughman: --Correct.

Justice Souter: And if the only harms that the rule is intended to avoid is the exposure of nakedness and violence, once inside, and there are cases without nakedness or without violence, then, in those cases, there will never be a recovery.

Mr. Baughman: Oh, in those cases, correct.

In cases where there is violence, there will be recovery.

In a case such as the instant one, where there is no nakedness, there is no violence, they simply opened an unlocked door, I would say, yes, there would be no recovery, in that circumstance; there would be no damages.

There may be cases... and this is why not... I'm not arguing there was no knock and announce violation, in that the police shouldn't knock and announce, because, in different cases, the consequences may be dramatic, they may be severe, and damages may be severely assessed.

Justice Souter: But, basically, your rule is, the police are entitled to take the chance.

If they... if they get inside, and people have got their clothes on and there's no gun battle, no problem; nothing that the police are exposed to, either by an exclusionary rule or by a civil recovery.

And if they want to take that chance, if they want to take the chance that somebody will not be dressed or a gun will be pulled, basically that's their option.

Mr. Baughman: I think, as in other situations where this Court does not apply the exclusionary rule, simply on a deterrence basis... because the Court does not always apply the exclusionary rule, even when there would be deterrence... that that is correct.

Chief Justice Roberts: Well, that's not true.

I mean, there are going to be situations, or at least possible, where evidence is going to be a... causally connected to a violation of the knock and announce rule, right?

The situation... the warrant is because these people were involved in a shootout with the... you know, the Johnson gang; they knock the door down and somebody yells,

"Look out, it's the Johnson gang. "

Mr. Baughman: Yes.

Chief Justice Roberts: And if they had knocked and announced, and "It's the police", they wouldn't have that statement that's incriminating.

Now, you would agree that that statement would be excluded because of the violation, right?

Mr. Baughman: Yes, exactly.

That was precisely the point I was going to make, in terms of a hypothetical.

We're not arguing... as I tried to indicate earlier, we're not arguing that you need to resolve every question today about what is, or is not, causally related.

And there are circumstances where a spontaneous declaration... you know, the police break through the door, and the defendant says,

"The drugs are in the closet. "

and you want to use that declaration to tie him to the drugs... that may well be causally connected.

All we're asking today is for this Court to decide that the items... the physical evidence found within a proper scope, a search of proper scope of the warrant that's being executed... is not causally connected.

Other questions of spontaneous declarations, tying the defendant by position to the chair, those may present different issues.

But the drugs that were named in the search warrant as items to be searched for and seized are not causally connected; they are the fruit of the execution of the judicial command, not of the knock and announce violation.

Justice Stevens: I can understand the requirement there be causal connection.

Are there cases in which courts have held that there was a knock and announce violation, and there is a general remedy of exclusion, unless... except when there's a causal connection; but, in fact, the evidence was admitted because it was not causally connected to the entry?

Mr. Baughman: I'm not away of any.

Justice Stevens: I mean, I can understand the hypothetical, but it seems to me it's really a hypothetical.

Mr. Baughman: Yeah.

And I think the reason that that exists is because, up til today... and Mr. Moran's correct, most courts go the other way... up until the Stevens case, the assumption had been... and I think the assumption has come from Miller and Sabbath... the assumption has been, if there's a knock and announce violation, you exclude the evidence.

So, questions of causation have not been explored until the Stevens case, and then the Seventh Circuit, in several opinions, has also reached the same conclusion.

But I think Sabbath and Miller present very different circumstances.

Sabbath and Miller, as the Court will recall, were arrest cases.

And the arrest situation does not translate into the execution of a search warrant, because knock and announce serves a different purpose, an additional purpose, in the arrest situation, that is not served when... in the search situation.

Justice Breyer: Oh, I see your argument now.

I think your argument is, most of the fourth amendment rules are really designed to prevent warrantless entries.

But this one isn't.

Mr. Baughman: That's correct.

Justice Breyer: This one is designed to prevent damage to property--

Mr. Baughman: That's correct.

Justice Breyer: --et cetera.

So, let's not have the exclusionary rule and rely on the damage remedy where that kind of thing actually occurs, which isn't often.

Mr. Baughman: That's correct.

Justice Breyer: And if we buy that principle, suppose we were to apply it in the Miranda area... purpose of a Miranda warning is really to make certain he can have a lawyer, if he wants one, for example.

So, now we prove this guy wouldn't have asked for a lawyer anyway.

All the evidence comes in.

I mean, it's an interesting principle.

I see the logic.

But it seems to me to have a lot of implications that this Court has never bought.

Mr. Baughman: I think it's much more speculative in the... in the fifth amendment area, but I think--

Justice Breyer: I can't think of any other area, fifth or fourth, where we've bought it.

And I've tried to explain, in the question, why we haven't bought it.

Now, you go ahead.

Mr. Baughman: --But I think to not accept causation as a requirement, which I think this Court has always done... as I said at the outset, this Court has said that implementation of the exclusionary rule is premised on the evidence being the product of the police misconduct.

To not do that, to not have a causation requirement, I believe, severs this Court's current exclusionary rule doctrines from its moorings.

There are many circumstances that this Court has, at this point, at least, seen fit to rest with the lower courts, such as the execution of a search warrant.

You search within proper scope, you're looking for computer monitors, you find them, but, as you're executing, you open a desk drawer and you shut it, you exceed the scope of the warrant.

The law is pretty uniform, currently, that you don't suppress the computer monitors because you exceeded the scope by opening the drawer.

If you found drugs in the drawer, you make... you'd exclude those.

But you don't exclude the monitors, because there's not a causal connection between the wrong in exceeding the scope of the warrant and the discovery of the monitors.

All those cases are up for grabs again if this Court severs the causation requirement from the application of the exclusionary rule.

And that's just one example; there are others.

This Court has always required that there be a causal connection, and I believe that it should simply continue to do so.

We're not asking this Court to overrule any cases, to create any really new principles, we're simply asking this Court to understand that Sabbath and Miller were knock and announce for arrests.

With an arrest situation, if a person surrenders at the door, you don't go in and search the premises thoroughly.

There's a different purpose served in arrest.

With a search warrant, knock and announce has no purpose of protecting the privacy of the dwelling itself with the discovery of the items named in the warrant, and they shouldn't be suppressed.

Things that are causally connected can be left to an argument that may be made by counsel in different situations, but, as to the items named in the warrant... contraband, fruit, spirits, instrumentalities... that should not be suppressed.

It is simply not causally connected to the entry, and we would ask this Court to so hold.

Thank you.

Argument of David B. Salmons

Chief Justice Roberts: Thank you, Counsel.

Mr. Salmons.

Mr. Salmons: Thank you, Mr. Chief Justice, and may it please the Court--

The knock and announce rule, unlike the warrant and probable cause requirements, does not protect the individual's privacy interest in the items to be searched, and does not relate to the officer's authority to conduct the search and obtain the evidence.

An unannounced or premature entry, therefore, does not detract from the officer's legal authority reflected in the warrant to enter and conduct a search.

Instead, as this Court held in Segura, an untainted warrant provides an independent source for the search, even where the entry is illegal.

There was only one entry in the Segura case, since the officers remained in the apartment until a warrant was finally obtained.

Justice Breyer: It depends, of course, on whether you... what you're doing.

Now I see what you're doing.

You're applying a kind of Palsgraf causation analysis within the risk... I think that's what you're doing... to saying it's outside, it's not a cause.

You're saying... you don't say it's not a necessary condition of his being there.

It is.

You do say,

"Well, the being in the room there is not within the risk, the reason for which we have a knock and announce rule. "

But, of course, that's a matter of judgment.

I mean, you could say the purpose of the cause... of the knock and announce rule is to keep people out of there without knocking and announcing.

And if that's the purpose of it, it's right within the risk, right cause.

Mr. Salmons: Your Honor--

Justice Breyer: You just are looking at the harms that his being there in that room without announcing might bring about.

That doesn't mean that's why we don't have the rule.

We have the rule to keep him out of there without announcing.

Mr. Salmons: --Your Honor, there are... there are several reasons why the Court has... the Court has articulated several reasons for why there is the knock and announce rule.

We think the important point, though, with regard to the Segura case is that the entry, in Segura, was unlawful both because the officers did not announce and because they did not have a warrant.

They, nonetheless, stayed there for 20 hours, and, when they finally did obtain a warrant, they conducted the search.

And this Court had no difficulty in saying that, even though the initial entry was unlawful, the warrant authorized search... the warrant was an independent source for the search, and that the legality with regard to the initial entry was, quote,

"wholly irrelevant to the evidence that was obtained pursuant to the warrant. "

And we would submit that it would be an odd fourth amendment rule that would allow admission of the evidence where the officers failed to obtain a warrant.

They entered without a warrant and without announcement, and only later obtained one, as in Segura; and then suppress all evidence, in this case, where the officers did obtain a warrant in advance, and their only illegality was the much more minor one of entering a few moments prematurely.

Justice Souter: What was the--

Mr. Salmons: Nothing in this Court's cases--

Justice Souter: --I'm sorry, I didn't mean to interrupt.

Mr. Salmons: --No, that's fine, Your Honor.

Justice Souter: I was going to say, What was... what were the grounds upon which the warrant, in Segura, was obtained?

Mr. Salmons: The warrant, in Segura, was obtained by... based on evidence that was in existence prior to the unlawful entry, so that it was an untainted warrant.

Justice Souter: So, it didn't... it didn't depend on the entry or anything gained as a result of the entry, right?

Mr. Salmons: Well, of course, the officers... once that warrant was obtained, officers would have to enter the apartment in order to conduct a search--

Justice Souter: Right, but the--

Mr. Salmons: --here, except for the fact that--

Justice Souter: --but the--

Mr. Salmons: --they had already entered illegally and were already present illegally--

Justice Souter: --Right, but the warrant--

Mr. Salmons: --in the apartment.

Justice Souter: --the warrant... the warrant itself didn't depend on anything they had gained as a result of the entry.

There was no--

Mr. Salmons: That's correct--

Justice Souter: --kind of causal--

Mr. Salmons: --in Segura.

Justice Souter: --continuum there.

Mr. Salmons: That's absolutely correct, and that's--

Justice Breyer: So, you do--

Justice Souter: Isn't--

Mr. Salmons: --a requirement for--

Justice Souter: --Isn't that the difference, though, with this case?

Because, here, there is a causal continuum, at least, as Justice Breyer said, a but for causal continuum.

They wouldn't have been in the apartment but for the entry.

And so, the authority of the warrant and the manner of executing the warrant are not divisible the way they were in Segura.

Mr. Salmons: --Your Honor, with respect, I think that's... it would be an improper reading of Segura.

There was an illegal entry, in Segura, that was just as necessary in order to conduct the search and obtain evidence in that case as there was at premature entry here.

Justice Souter: But, in Segura, the court issuing the subsequent warrant says,

"You can... you can go in there and do this. "

The court... by the way, I... maybe this makes it even easier... did the court, in Secuga, know that they were in the apartment?

Mr. Salmons: No, Your Honor.

Justice Souter: Okay.

Mr. Salmons: Their... they had no knowledge of the illegality, and the evidence that was... that was the basis for the affidavit for the warrant was untainted by the illegal entry.

But, of course, the same is true here, there was... there is no allegation at all that--

Justice Breyer: --No, no--

Mr. Salmons: --the warrant in this case--

Justice Breyer: --the difference is--

Mr. Salmons: --is tainted.

Justice Breyer: --All right, look, this... you know, I'd appreciate your explaining this... this seems to me what you're saying in your brief was the inevitable discovery.

The inevitable discovery rule, in my... the way... the way I've thought of it, and I'd like you to correct me if I haven't thought of it correctly... to use a kind of analogy, it's like a primitive tribe that beats a tomtom every morning so the sun comes up.

Hey, the sun's going to come up anyway, and the bodies are going to be discovered anyway, in those cases.

And, in Segura, the warrant is going to be issued anyway.

So, it isn't a question of whether it would have been issued if they had behaved properly, it's a question of what will really happen in the absence of the illegality.

Mr. Salmons: Well--

Justice Breyer: Now, that's what I thought inevitable discovery here was, and, in the absence of these people entering the apartment illegally, they wouldn't have found a thing, because--

Mr. Salmons: --Well, Your Honor--

Justice Breyer: --there was nothing else in motion.

Mr. Salmons: --Your Honor, with respect, that is... that is directly at odds with the way the Court, in Segura, approached--

Justice Breyer: Now, which--

Mr. Salmons: --the question.

Justice Breyer: --case is contrary to what I said?

Mr. Salmons: I think Segura is contrary to that.

Justice Breyer: Segura?

Mr. Salmons: I think Murray--

Justice Breyer: You have just said--

Mr. Salmons: --is contrary to that.

Justice Breyer: --that, in Segura, they would have gotten in, anyway, under a legal warrant that had nothing whatsoever to do with the illegal entry.

Mr. Salmons: In fact, that is precisely the analysis--

Justice Breyer: The sun rose, anyway.

Mr. Salmons: --that's precisely the analysis the Court ordered... took in Segura.

It said, if there had been no illegal entry, the officers--

Justice Breyer: Right.

Mr. Salmons: --would have obtained the evidence--

Justice Breyer: Exact--

Mr. Salmons: --the same way--

Justice Breyer: --No.

Well--

Mr. Salmons: --because they had--

Justice Breyer: --not "would have".

Did.

Mr. Salmons: --Well, Your... I'm just informing Your Honor what the Segura case says.

It says the court... the courts would have found... excuse me... the officers would have found the same evidence that they found pursuant to the warrant if they had complied with the fourth amendment.

That's because the court viewed the... that warrant as a separate independent source for the authority to enter and conduct a search.

One would have to posit, I guess, that the officers in this case, if they... if they would rather not execute the warrant than delay a few additional moments before entering, but I think that would not be a very realistic hypothesis.

Justice Ginsburg: Then your--

Mr. Salmons: Now, with regard--

Justice Ginsburg: --position is that you never... if you have a warrant, then you can seize what the warrant lists.

So, if you have a warrant, then there is never a reason that the police would have to knock and announce, because the warrant gives them independent authority to enter.

That seems to be what you're saying, that as long as you have a warrant, there... the knock and announce does not have to be complied with.

Mr. Salmons: --No, Your Honor.

The knock and announce requirement is... we take no issue with that.

That is required by the fourth amendment.

With regard--

Justice O'Connor: Well--

Mr. Salmons: --to deterrence--

Justice O'Connor: --but in this very case you had an officer who said it was his regular policy--

Mr. Salmons: --Well--

Justice O'Connor: --never to knock and announce--

Mr. Salmons: --That's not--

Justice O'Connor: --to just go in.

So, if the rule you propose is adopted, then every police officer in America can follow the same policy.

Is there no policy protecting the homeowner a little bit--

Mr. Salmons: --Of course the--

Justice O'Connor: --and the sanctity of the home--

Mr. Salmons: --Of course there is--

Justice O'Connor: --from this immediate--

Mr. Salmons: --Your Honor, and that is not--

Justice O'Connor: --entry?

Mr. Salmons: --our position.

And we, respectfully, would argue that that's not an appropriate way to conduct the deterrence analysis.

Even just on the terms of deterrence, we think that suppression here would be a disproportionate remedy.

And that's because, as this Court has repeatedly recognized, the officers already have an incentive, inherent in the nature of the circumstances, to announce and delay some period of time before entry.

Now, there may be--

Justice Souter: But what--

Mr. Salmons: --not--

Justice Souter: --Wait a minute.

What is this incentive inherent in the circumstances?

Mr. Salmons: --It's not to be mistaken for an intruder and shot at, Your Honor.

Justice Souter: Well, it doesn't seem to work.

Mr. Salmons: Well--

Justice Souter: I mean, you've got... this is a case in which the officer testifies,

"It never works, I always go in. "

Mr. Salmons: --That's not really... I mean, to be fair, Your Honor, that's not what he testified to, exactly.

What he said was, he's been shot at several times, and he went in early, in this case, in part because of his safety concerns.

But he didn't speak to any broader policy.

Justice Souter: When is it going--

Mr. Salmons: But, in any event, the--

Justice Souter: --I mean, what reason do we have to believe that this incentive inherent in circumstances is ever going to work in the absence of an exclusionary rule?

Mr. Salmons: --Well, Your Honor, I think... I think there are several reasons.

One... and, again, this Court... these are... all of the things I'm going to list come from this Court's cases, including Nix and Murray and Segura, where the Court has applied the doctrines we ask the Court to apply here.

And what you have is, you have the inherent incentive to knock and announce, because of their own safety concerns.

We think the only thing that might not cover, in terms of deterrence, would be the additional few moments you may want them to wait.

They will announce, and they will delay some period of time.

Now, in the absence of concerns about safety or destruction of evidence, the officers have nothing to gain by entering prematurely.

And so, in doing a deterrence analysis, I think it's important to keep that in mind.

It's not like there's a huge gain for the officers--

Justice Souter: Why don't they--

Mr. Salmons: --when they don't have legitimate concerns.

Justice Souter: --Why don't they have something to gain?

If they're right that there is evidence inside, they gain.

They're... I mean, they're perfectly rational--

Mr. Salmons: Well--

Justice Souter: --in this.

They gain a greater chance of getting that evidence than if they let a few seconds elapse and the evidence can be flushed away.

Mr. Salmons: --To be sure, Your Honor, there are times when they may miscalculate the nature of the concerns about safety and destruction of evidence, but, in cases where there aren't those concerns, they have nothing to gain.

And, in addition, entering prematurely may make them a defendant in 1983 or Bivens actions, which I'm sure that no officer--

Justice Souter: For--

Mr. Salmons: --relishes and--

Justice Souter: --For which there is no record of any recovery in any court in the United States, isn't that correct?

Mr. Salmons: --May I answer, Your Honor?

Chief Justice Roberts: Sure.

Mr. Salmons: Your Honor, I would... I would disagree with that.

And I would point the Court, in particular, to a recent case out of the Seventh Circuit, Jones versus Wilhelm.

The Seventh Circuit has announced the position... it decided the position that we advocate.

There are many cases, Your Honor... the courts... the courts are replete with them... where people--

Chief Justice Roberts: Thank--

Mr. Salmons: --bring those types of claims, and win, and then they settle.

Chief Justice Roberts: --Thank you, Counsel.

Mr. Salmons: Thank you.

Rebuttal of David A. Moran

Chief Justice Roberts: Mr. Moran, you have 4 minutes remaining.

Mr. Moran: Thank you, Mr. Chief Justice.

First of all, as to the evidence that is causally connected to the knock and announce violation, there are two reasons why the remote possibility of such evidence will never deter police officers from violating the knock and announce requirement.

The first is that it's very remote.

I'm not aware of a single case in American history where there has been identified such evidence that is directly causally related only to the knock and announce violation.

But the second reason, more fundamental, is that even if there were such evidence, by definition the possibility of finding such evidence will not deter the police from committing a knock and announce violation, because they wouldn't have found that evidence had they complied with the knock and announce requirement.

In other words, the police would only gain that evidence by committing the knock and announce violation, so there would be nothing lost in going ahead and risking an excited utterance that they wouldn't be able to use, because, by definition, they wouldn't be getting that excited utterance, anyway.

I think it's important, with the solicitor general's brief, to rebut the claim that Miller and Sabbath had something to do with the fact that there was no warrant in those cases.

Nothing in Miller and Sabbath turned on the absence of a warrant.

And, in fact, in Miller the Court specifically said,

"The requirements stated in Semayne's case still obtains. "

"It applies, as the Government here concedes, whether the arrest is to be made by virtue of a warrant or when officers are authorized to make an arrest for a felony without a warrant. "

The Government conceded, in Miller, that whether there was a warrant or not had nothing to do with the knock and announce violation in that case.

Justice Scalia: I thought the Government's distinction was based on the fact that they were arrest cases.

I thought that's the distinction they were making.

Mr. Moran: Perhaps I misread their brief, Justice Scalia, but I thought it was that there was an absence of a warrant.

Of course, this is an arrest case, as well.

The... Mr. Hudson was seized, and was searched, incident to arrest.

And so, this was also an arrest case, much like Miller and Sabbath.

As for the causal connection argument, if this Court were to accept it, I listed, in my principal brief, a litany of cases that I think would have to be overruled... Katz, Knowles, Silverthorne Lumber... for that matter, Kyllo.

All those cases say that it doesn't matter that the Government has a clear, lawful route to get the evidence; the fact that they didn't follow that clear, lawful route prevents the Government from using that evidence.

And it's impossible to explain how Mr. Baughman's causation theory is consonant with all of those cases.

Chief Justice Roberts: Well--

Mr. Moran: I think--

Chief Justice Roberts: --Well, isn't the... isn't the reason it's consonant is because, in those cases, there is a... the connection, in terms of the purposes of the rule that was violated and the evidence that was seized?

Mr. Moran: --Mr. Chief Justice, I think the same thing applies here.

I think that the knock and announce rule is about the sanctity of the home.

And this Court could not have said it any more clearly in Wilson, that the reasonableness of a search or seizure inside a home is connected to the method of entry.

In fact, the Court said it three times, in Wilson, in various ways.

And so, I think it is the purpose of the knock and announce rule, is to protect the homeowner's right of privacy against shock, fright, and embarrassment that can come with a precipitous police entry.

Chief Justice Roberts: But not the general privacy of the home, because you don't dispute that if he had waited an additional 4 seconds, he could have entered the home and executed the warrant.

Mr. Moran: No, we don't dispute that at all, Mr. Chief Justice.

Finally, I have to ask why this Court has decided all these knock and announce cases in the last 10 years, if my opponents are right.

This Court shouldn't have... they're all criminal cases, and this Court should have simply said the Petitioners or Respondents, as the case may be, cannot obtain the relief they are seeking, because the knock and announce rule is not causally related to the evidence that they're trying to suppress.

And so, if this Court were to adopt my opponent's position, the knock and announce rule will become a dead letter.

There will be virtually no cases, there will be virtually no more development of this rule.

This Court would have been wrong in Miller, it would have been wrong in Sabbath, and it was wrong to reach the substantive constitutional questions it reached in Banks, Richards, Ramirez, and Wilson.

And all the other courts, the... virtually every State currently suppressing evidence seized after a knock and announce... well, they would have to be wrong, too.

And so, a lot of courts, including this Court, have been wrong a lot of times, if my opponent is correct.

Finally, one last word on Segura.

Segura is the sort of case where one can make a respectable inevitable discovery... in fact, a winning inevitable discovery or independent source argument.

But the key thing in Segura is, this Court did not disturb the fact that the evidence that was seized during the initial entry was suppressed, because that was directly connected to the unlawful entry.

And so, the evidence that the police initially seized, before the 19-hour wait in Segura, was suppressed.

Thank you, Mr. Chief Justice.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.

Print this transcript Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

1 BOOKER T. HUDSON, JR., Petitioner v. MICHIGAN.

No. 04-1360

May 18, 2006

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:00 a.m.

APPEARANCES: DAVID A. MORAN, ESQ., Detroit, Michigan; on behalf of the Petitioner.

TIMOTHY A. BAUGHMAN, ESQ., Detroit, Michigan; on behalf of the Respondent.

DAVID B. SALMONS, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Respondent.

PROCEEDINGS

(10:00 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument now in Hudson v. Michigan.

Mr. Moran.

ORAL ARGUMENT OF DAVID A. MORAN

ON BEHALF OF THE PETITIONER

MR. MORAN: Mr. Chief Justice, and may it please the Court:

For centuries the knock and announce rule has been a core part of the right of the people to be secure in their houses from unreasonable searches and seizures. It reflects the notion that when the government has the right to enter a house, whether to perform an arrest, to search for evidence, or to seize goods, that the people should have the right to answer the door in a dignified manner, except in an emergency, and to avoid the unnecessarily gratuitous embarrassment and shock that often follows a precipitous police entry.

CHIEF JUSTICE ROBERTS: So wouldn't it be more accurate to say that it's protected the right to be free from unreasonable entry as opposed to unreasonable search and seizure?

MR. MORAN: Well, this Court has recognized in Wilson, consistent with the common law authorities, Mr. Chief Justice, that they are connected, that the entry directly affects the reasonableness of the search and seizure that occurs within. And that's why this Court in Miller and in Sabbath suppressed the evidence following knock and announce violations. But in Wilson, this Court directly stated that the common law, the Fourth Amendment, -- the common law that informs the Fourth Amendment, directly demonstrates that the Framers thought that the method of entry directly affects whether a search or seizure inside a home is reasonable.

JUSTICE KENNEDY: So -- so in your view, there has to be a 4- to 6-hour search for complex financial records, business documents. There's a warrant. The search is otherwise proper. They forget to knock. They say, oh, you know, we are police officers. There's a discussion for a while. But -- anything seized after that is -- must be suppressed.

MR. MORAN: If there is --

JUSTICE KENNEDY: It just seems to me in the hypothetical I put -- and there's obviously a reason I put it -- is there's just no causal link between the -- the suppression and -- and the failure to knock.

MR. MORAN: Your Honor, the evidence inside -- the evidence is seized inside. The seizure of the evidence inside is directly related to the manner of entry, just as there's a direct causal link between when the officers come in without a warrant when they should have gotten a warrant first. They thought there was an exigent --

JUSTICE KENNEDY: Well, but you say directly related. That -- that assumes the very point that I have in mind. I don't know why it's directly related.

MR. MORAN: Well, going back to Wilson, this Court said in Wilson, if I might quote from Wilson, that the -- the common law search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announce their presence and authority prior to entering.

JUSTICE KENNEDY: It depends -- it depends in part.

MR. MORAN: It depends in part, certainly. There are other factors as well, but the reasonableness of the search depends in part.

The issue --

JUSTICE SCALIA: Counsel, what -- what do you do with our opinion in -- in 1986 in Segura v. United States, which seems to me to contradict your assertion that you cannot separate, for purposes of the exclusionary rule, the manner of entry from the search? In that case, the -- the policemen entered without a search warrant. So the entry was clearly a violation. They left two officers in the room and other officers went back and got a search warrant. When they returned with the search warrant, the two officers who were in the room proceeded to do a search, and we admitted the evidence. It seems to me that in that case, we -- we did succeed in -- in separating the -- the entry from the subsequent search, and I don't know why -- why we can't do the same thing here.

MR. MORAN: Because there were exceptional circumstances, Justice Scalia, in Segura.

JUSTICE SCALIA: What -- what were the exceptional circumstances?

MR. MORAN: A 19-hour delay and a warrant that was obtained that had nothing to do with the initial entry. That was in no way dependent on the initial entry.

JUSTICE SCALIA: We're still, it would seem to me -- I don't know -- the warrant wasn't dependent on the initial entry? You could also say the initial entry wasn't the product of the -- of the later warrant.

MR. MORAN: The initial entry was not the product of the later warrant, but once this Court ruled --

JUSTICE SCALIA: And therefore was unlawful.

MR. MORAN: That's right. The -- the initial entry wasn't lawful.

JUSTICE SCALIA: But we didn't hold -- but we didn't hold that.

MR. MORAN: Well, but this -- the Government in Segura never contested the fact that the evidence that was seen and seized during the initial entry should be suppressed. And that's all we're asking for here.

JUSTICE SCALIA: Excuse me? No, I don't understand that.

MR. MORAN: When the officers went in initially in Segura, some evidence was seen and seized at that time, and the Government did not contest that that evidence should not --

JUSTICE SCALIA: No. I'm talking about only the evidence that -- that was the product of the search conducted after the warrant was delivered.

MR. MORAN: That's right.

JUSTICE SCALIA: And that evidence was admitted in.

MR. MORAN: Right, but the --

JUSTICE SCALIA: Even though the entry of those officers was an unlawful entry.

MR. MORAN: The entry -- the initial entry was an unlawful entry. When they came back with the warrant --

JUSTICE SCALIA: Well, no, no. The -- there was no subsequent entry. You said the initial entry was unlawful. Those officers stayed there. Their presence there was the product of an unlawful entry.

MR. MORAN: Their presence was, yes.

JUSTICE SCALIA: Their presence was the product of an unlawful entry, and nonetheless, we admitted in the -- the material that they obtained in the search after a warrant had been obtained.

MR. MORAN: I -- I read Segura as saying that the presence -- the later presence of the warrant, which was in no way tainted by the initial entry, made the officers' presence in the home retroactively lawful from that point. It was unlawful until that point, which is why the Government did not contest the -- the point that all the evidence that was seized during the initial entry up to the point when the warrant was issued had to be suppressed. That's all we're asking for here.

I can imagine hypotheticals in which you have a knock and announce violation and then something happens like in Segura or like in Murray, where you have later action that creates an independent source. But in your typical --

JUSTICE KENNEDY: Suppose the -- suppose the officer -- excuse me, we forgot to knock, but we are police officers. We do have a warrant. We're going to proceed with a search. Please don't be alarmed. We're going to -- does that do it?

MR. MORAN: That might do it. That would be a different case than the case we have here --

JUSTICE KENNEDY: Well, but your -- your point is -- is there -- is that they have to go out and come back in again.

MR. MORAN: You would have to create some sort of analogy to Murray and Segura. Murray and Segura are exceptional cases. There are very rare cases when the Government breaks in and then realizes we shouldn't have done that. We should go get a warrant.

JUSTICE KENNEDY: I agree. Segura -- I forget what it is in torts. It's kind of a supervening, independent cause or something like that.

MR. MORAN: Yes. Yes. And -- and you can have -- imagine such hypotheticals in the knock and announce context. And in the Moreno case in the Ninth Circuit, you have one where you have a knock and announce violation committed in the outer door. No evidence is found in the outer door, but then the officers properly knock and announce at the inner door, and the Court in the Ninth Circuit held that that was proper to seize that. We have no problem with that. That -- that seems like a proper result because ultimately the purposes of the knock and announce rule were vindicated when the officers knocked and announced at the inner door before -- before forcing entry.

CHIEF JUSTICE ROBERTS: Mr. Moran, how -- how long do you think the officers had to wait before they could have entered?

MR. MORAN: In this case?

CHIEF JUSTICE ROBERTS: Yes.

MR. MORAN: From Banks, somewhere closer to 15 seconds. 15 to 20 seconds was --

CHIEF JUSTICE ROBERTS: What would -- if they had done that, what would have been different from what happened in this case?

MR. MORAN: Mr. Hudson presumably would have gotten up from his chair, would have come to the door, would have admitted the officers, and then after --

CHIEF JUSTICE ROBERTS: Why do you presume that? Someone sitting in a chair with gun -- with a gun and the drugs you say would have gotten up and said, oh, it's the police. Let's see what they want?

MR. MORAN: We presume that people act lawfully in response to commands from the police. We do not presume that people will act unlawfully. If the police have evidence or information that someone will, in fact, act unlawfully by trying to dispose of the evidence or by --

CHIEF JUSTICE ROBERTS: Isn't a good sign of what might have happened what actually happened when the police came in, which was there was an effort to hide the evidence?

MR. MORAN: The record does not disclose any effort on Mr. Hudson's part to hide any evidence, Your Honor.

CHIEF JUSTICE ROBERTS: I thought -- where -- where were the drugs found?

MR. MORAN: The rocks of crack cocaine, for which he was convicted, were found in his left front pants pocket.

CHIEF JUSTICE ROBERTS: Where was the gun found?

MR. MORAN: The gun was in the chair.

CHIEF JUSTICE ROBERTS: In the chair?

MR. MORAN: In the chair. There was no evidence that there was any secreting of evidence in this case.

CHIEF JUSTICE ROBERTS: Is there any reason to suppose that if the officers had waited 15 seconds instead of the 3 to 4, that they wouldn't have found the same evidence?

MR. MORAN: It's always possible, Your Honor, but we don't presume that. Just as in Segura, the Court said --

CHIEF JUSTICE ROBERTS: Well, the only -- the only reason they wouldn't have found the same evidence, I take it, is if they -- if -- if the defendants had had additional time to dispose of it.

MR. MORAN: We don't contest that they would have found the same evidence, no. We do not argue that Mr. Hudson or any of the other people in the house would have destroyed the evidence.

JUSTICE SCALIA: Is --

MR. MORAN: We certainly don't make that argument.

JUSTICE SCALIA: Is in the chair the same thing as on the chair?

MR. MORAN: I --

JUSTICE SCALIA: You tell me something is in the chair. Did they stuff it -- stuff it in the cushion or what?

MR. MORAN: It's not really clear from the record, Justice Scalia.

JUSTICE SCALIA: Yes. So I -- I --

MR. MORAN: It's in -- in the chair.

JUSTICE SCALIA: I think it's pretty clear you don't talk of something as being in the chair. It's on the chair unless you stuff it in the chair. I assume he stuffed it behind a pillow or something.

MR. MORAN: I'm not completely clear exactly where in the chair it was.

JUSTICE SCALIA: English is English. You said it was in the chair.

MR. MORAN: In the chair.

JUSTICE SCALIA: Okay.

MR. MORAN: 49 of the 50 States currently suppress evidence following knock and announce violations, just as this Court did in -- in Miller and Sabbath.

JUSTICE ALITO: Well, what do you think is the standard for determining what sort of causal connection there has to be in order to have suppression here?

MR. MORAN: We go back to the Wong Sun fruits test. Is the evidence that was recovered the direct fruit of the violation? In other words, is there a clear, logical connection? Now, my opponent --

JUSTICE ALITO: What's the purpose of the causal connection requirement? What's the reason for having it?

MR. MORAN: Well, it's so -- it's so that there is a -- an obvious connection. Before the court takes the step of -- of excluding evidence, there should be some connection, some clear connection, between the violation and the evidence recovered. But my --

JUSTICE ALITO: And what's the reason for requiring a clear connection?

MR. MORAN: I suppose that it's simply the matter of logic, that evidence that's completely unrelated to a violation nobody would think should be -- should be excluded. But evidence --

JUSTICE ALITO: But why?

MR. MORAN: Well, it's -- it's unrelated. So if, for example, the police break into my house and -- and find evidence -- find nothing in my house -- they illegally break into my house, but then they -- they do a proper warrant search of my office and find evidence, I -- I don't -- I don't see any connection between the illegal search of my house and the legal search of my office, assuming that it was not the fruit of the illegal search of my house.

JUSTICE ALITO: But why? Isn't the reason just a -- just a question of crafting an appropriate remedy for -- an appropriate deterrence --

MR. MORAN: Yes.

JUSTICE ALITO: -- for violations?

MR. MORAN: Exactly. It -- the whole point is deterrence. And so you wouldn't deter the officers who illegally broke into my house by excluding the evidence from my office if -- if -- it may even well be different --

JUSTICE SCALIA: Sure you would. Sure you would.

MR. MORAN: Well, it may well even be a different --

JUSTICE SCALIA: I mean, you'd deterred him more if you threw the whole case out, but we don't do that.

MR. MORAN: No, we don't.

JUSTICE SCALIA: Yes.

MR. MORAN: We -- we limit --

JUSTICE SCALIA: I mean, we -- we insist that the deterrence somehow be related --

MR. MORAN: We do.

JUSTICE SCALIA: -- to the -- and -- and the related usually means that the acquisition of the evidence was the product of the violation. It was caused by the violation. And -- and for that reason, we keep it out.

And here, it's -- it's hard to say that this was caused by the fact that they -- that they entered in a few seconds too soon. So he would have answered the door and they would have seen the stuff.

MR. MORAN: What the knock and announce violation causes, Justice Scalia, is the officer to be illegally in the home. Going back to the common law authorities, the courts have long recognized -- American courts have long recognized that an officer who illegally enters a home, even with a valid writ or a valid piece of paper allowing him to be in the home, if the manner of entry is illegal, he is a trespasser. His entry is -- is void ab initio. And so in that sense, the entry is the cause of the illegal --

JUSTICE SCALIA: Although you say it can be retroactively validated.

MR. MORAN: After Segura --

JUSTICE SCALIA: Yes, in Segura, you can retroactively validate it by -- by getting a warrant afterwards.

Could it be -- have been retroactively validated by knocking and announcing afterwards? I'm -- I'm sorry we came in too soon, and they run back to the door and they knock and announce and wait -- wait 10 seconds.

MR. MORAN: Again, I --

JUSTICE SCALIA: Would that do the job?

MR. MORAN: I concede that it's possible that you can come up with a Segura-type hypothetical. I think the easiest one is the Moreno case from the Ninth Circuit.

JUSTICE SCALIA: The hypothetical sounds ridiculous only if one accepts your explanation of Segura, that -- that it was somehow a retroactive validation.

MR. MORAN: Well --

JUSTICE BREYER: Sorry. I have laryngitis. Can you hear me all right?

MR. MORAN: Yes, I can, Justice Breyer.

JUSTICE BREYER: Why is it retroactive validation? I would have thought Segura and those cases are Silverthorne cases.

MR. MORAN: It is. It's an --

JUSTICE BREYER: All that it is is it's an independent chain of events.

MR. MORAN: It's an independent source.

JUSTICE BREYER: An independent chain of events that almost certainly would have led to the discovery of the evidence despite -- not without -- despite the unlawful entry. And if that's so, all we have is a -- is a set of cases where deterrence is most unlikely to play any significant role because no policeman could possibly counter that kind of thing getting the evidence in --

MR. MORAN: And that's exactly right. And -- and the situation we have in Michigan now is that officers know to a certainty that if they violate the knock and announce rule, nothing will happen. And so that's why in all the other States --

CHIEF JUSTICE ROBERTS: That's not true. There are cases where the violation of the knock and announce rule gives rise to evidence that may be admitted and that would presumably be excluded if you can show that the seizure is related to the violation. The problem here is that the evidence that is being suppressed, as -- as you've suggested, that there's no question that it would have been available if the officers had waited 15 seconds as opposed to 4 seconds.

MR. MORAN: Mr. Chief Justice, none of the parties has been able to identify any cases in which you can point to evidence and say this -- this evidence was produced by the knock and announce violation and nothing else in the house --

CHIEF JUSTICE ROBERTS: The Solicitor General hypothesized one in the amicus briefs. If somebody -- you know, they -- they burst in and someone screams, you know, run away, it's the police, that excited utterance caused by the absence of a knock and announce would presumably be related to the violation and could be suppressed. That doesn't mean that the gun and the drugs that are found in the room is in the same category.

MR. MORAN: If I may make two responses to that. First, the Solicitor General hypothesized such a case but has not identified a single case where that's ever happened. It's purely hypothetical.

But the second point is that excluding that evidence would have no deterrent effect whatsoever because by -- by definition, that's evidence that the police would only get by committing the knock and announce violation. So the police lose nothing by risking the possibility that somebody will make an excited utterance and then say, okay, we won't get to use that excited utterance, but we would never have gotten that excited utterance in the first place. That's not deterrence, Mr. Chief Justice. That's restitution. That's like saying that I can be deterred from stealing something by being told that if I'm caught, I'll have to give it back.

CHIEF JUSTICE ROBERTS: What it is is recognizing that if there is a fruit of the illegal act, it is suppressed so that there is a cost to the illegal act. What it's saying is that not everything that happens after the illegal act is a fruit of the illegal act.

MR. MORAN: I think your question, Mr. Chief Justice, really goes to the worst position language in Nix, and the point is, from our brief, is that this Court has placed the prosecution in the worst position than it would have been had the police acted lawfully dozens, possibly scores, of time -- times.

All the cases in which the Court has noted that the police easily could have obtained a warrant. Most recently in Georgia v. Randolph, where this Court noted that there were two lawful methods for the police to get the cocaine -- the cocaine residue on the straw, but still suppressed the evidence. The police and the prosecution do get placed in a worse position, and that's necessary for deterrence. What --

JUSTICE GINSBURG: Would it have been possible for these police to get a no-knock warrant?

MR. MORAN: It might well have been. I was asked this question last time, Justice Ginsburg, and I'd like to modify my answer. In Michigan, there is no statute governing no-knock warrants, and there's -- there are also no court decisions governing no-knock warrants. And there never will be under the People v. Stevens regime.

One of the nice things that's happened in -- in -- since Wilson v. Arkansas, in fact, before Wilson v. Arkansas in many States, is courts have developed -- developed procedures for police officers to get no- knock warrants, to go to the police and ask for a no- knock warrant.

JUSTICE KENNEDY: Well, what about in this case, which is Justice Ginsburg's question? If the police said, we have reasonable grounds to -- to believe that he has a weapon and we're also looking for drugs that are easily disposable, would that be grounds for knocking -- for not -- for dispensing with the knock requirement?

MR. MORAN: Could the -- could a judge have issued such a warrant in Michigan? Is that your question?

JUSTICE KENNEDY: Well, let's take it step by step. Suppose the police articulate this at the outset --

MR. MORAN: It could well --

JUSTICE KENNEDY: -- and under -- under State procedures, they're allowed to make the on-the-spot judgment. Would that -- would those facts suffice to allow them to enter without the knock?

MR. MORAN: If they had specific information along those lines, that -- that there was evidence hidden in places or -- or stored in places where it could easily be disposed --

JUSTICE STEVENS: Well, is that correct? I thought in most States, there has to be a statute that authorizes a non-knock warrant.

MR. MORAN: In most States --

JUSTICE STEVENS: And that most States do have such statutes. And we got this case because Michigan chooses to go on on a separate path.

MR. MORAN: Most States do have statutes, but a few States by court decision have allowed for the issuance of no-knock warrants. My point --

JUSTICE SOUTER: Even -- even if Michigan doesn't, I mean, that has nothing -- as I understand it, that -- that doesn't affect the -- the answer to the Federal question that we have because, as I understand it, we -- we can -- we can take as good law that even with a warrant that does not have a no-knock authorization, if the police have a justification for going in without knocking, so far as the Fourth Amendment is concerned, the search is still good.

MR. MORAN: That's right.

JUSTICE SOUTER: Isn't that correct?

MR. MORAN: Absolutely.

JUSTICE SOUTER: So what we're really arguing is what -- what is Michigan law on the subject, but the -- the issue we've got is not Michigan law.

MR. MORAN: That's right. And this case comes to us in the posture in which --

JUSTICE GINSBURG: But this is a -- this is a place -- a case in which the warrant was for drugs. Is that not so?

MR. MORAN: It was.

JUSTICE KENNEDY: Well, so in -- in this case, they could have entered in your view if they had specific knowledge of the gun and disposable contraband.

MR. MORAN: Yes, after Banks and -- and Richards, especially Richards, if the police had reasonable suspicion that you had contraband in a position where it could be easily disposed and if they had information about the weapons that could be used to resist the police entry, then yes, there could have been a -- a legal no-knock entry.

JUSTICE SCALIA: What about just the former without the latter? I thought the former alone would be enough.

MR. MORAN: Either would be. That's correct, Justice Scalia.

JUSTICE GINSBURG: Going back to my question, isn't it then a reasonable assumption, based on the police experience in case after case, that where there -- where narcotics are housed, there is often a gun and there is ease of disposal, couldn't the police simply say this is a narcotics search and therefore we don't need to knock and announce because those circumstances will be present in most cases?

MR. MORAN: No, because this Court unanimously foreclosed that argument in Richards v. Wisconsin by holding that there must be a particularized showing for the particular case. That particularized showing I will gladly concede will be easier to make in a narcotics case than it would be in a -- in a stolen property case.

But it wasn't made in this case, and this case comes to this Court on the posture that the prosecution has conceded, at every step of the way, that that particularized showing was not made here and that, therefore, there was a knock and announce violation.

CHIEF JUSTICE ROBERTS: I'm sorry. A particularized showing of what?

MR. MORAN: That in this particular case, it's likely that the drugs would be in an easily disposable situation and that the occupants would be armed and ready to resist the police entry. And there was no such showing made here.

CHIEF JUSTICE ROBERTS: I --

MR. MORAN: The prosecution didn't even attempt to make such a showing.

CHIEF JUSTICE ROBERTS: I'm vaguely recalling cases from the court of appeals in the D.C. Circuit that accepted a presumption that if there are drugs around, there are likely to be firearms around. Are you saying that that's inconsistent with the Richards decision?

MR. MORAN: That might not be inconsistent, but the -- the -- to follow that up with, therefore, you can do a no-knock entry automatically is inconsistent with the Richards decision.

The --

JUSTICE STEVENS: May I ask this question? As I understand it, the prosecutor conceded a violation of the knock and announce rule.

MR. MORAN: Yes.

JUSTICE STEVENS: And I'm just wondering. In Michigan, since there's no adverse effect to it, do the prosecutors routinely concede that there's a violation because there's no point in litigating it I suppose?

MR. MORAN: Well, I don't even think we get that far, Justice Stevens. Motions to suppress aren't filed. There's no point filing a motion to suppress except for the -- the fact that this case is pending in this Court. There's no point for --

JUSTICE STEVENS: So that if the issue arises, you can assume the prosecutor will always say, yes, we'll assume there was a violation. There would be no reason not to assume that.

MR. MORAN: That's right.

JUSTICE STEVENS: So you'll never really litigate in Michigan how far they can go before they violate the rule.

MR. MORAN: It's a dead letter in Michigan.

JUSTICE SCALIA: But I assume that lawsuits are allowable if -- if knock and announce is -- is not observed, and if you intrude upon someone in a state undress.

MR. MORAN: Michigan --

JUSTICE SCALIA: Isn't a civil lawsuit bringable?

MR. MORAN: Michigan has a particularly vigorous State immunity statute that makes it effectively impossible to sue for a -- a knock and announce violation. I have not found a single Michigan case in which anyone has successfully sued for a knock and announce violation.

You can sue in Federal court under section 1983, but there you run into various doctrines, especially including qualified immunity.

I made the claim the first time and it still hasn't been contradicted by my opponents. We've not been able to find any cases, published or unpublished, in which anyone has collected anything other than nominal damages anywhere in the United States --

CHIEF JUSTICE ROBERTS: But those doctrines that you're talking about would be overridden on the hypothetical that you want us to be concerned about. In other words, you're saying if you don't suppress the evidence, there's going to be no incentive to comply with the law. So they're going to deliberately violate the law. Well, if they're deliberately violating the law, qualified immunity isn't going to help them very much.

MR. MORAN: Qualified immunity would still protect them to the extent that any reasonable officer could have thought that a -- a no-knock entry was valid. I cited a number of cases, for example, where innocent people have been shot following entries into wrong doors, and qualified immunity has been granted to the officers.

JUSTICE SCALIA: Wait a minute. The government is not arguing here that -- that it's valid. It's just arguing that though it is invalid, the punishment for it should not be to let the criminal go. That's -- that's all they're saying.

MR. MORAN: That -- that is their argument.

JUSTICE SCALIA: The punishment for the invalidity should not be the -- the inadmissibility of all of the evidence of the crime that was found.

MR. MORAN: That --

JUSTICE SCALIA: Well, that's quite different from saying that it's -- that it's valid. So I think they acknowledge that -- that a lawsuit against an officer who knowingly dispenses with -- with knock and announce because, as you say, he says there's -- there's no consequence, but there is a consequence. He can be sued.

MR. MORAN: I assume --

JUSTICE SCALIA: And sometimes he may be going into the wrong house and the person suing him may not be a criminal, but may be some -- some innocent -- innocent bystander.

And -- and what about -- you know, you say there's no incentive to knock and announce. There -- there may -- you don't know any Michigan cases in which a -- a civil suit has succeeded, but I know numerous cases in which police who -- who burst in without knocking and announcing expose themselves to danger, that is, to being shot at by a -- by a householder who doesn't know that they are the police. Isn't that enough of -- of an incentive, the fact that you may lose your life?

MR. MORAN: No, Your Honor, because I think what some officers will do is exactly what Officer Good did in this case, which is shout police and then burst in immediately. So they'll do the announce part, which protects the police, to some extent, from being shot, but they will skip the rest of the knock and announce requirement, which is to wait some reasonable amount of time to allow the householder to make himself more dignified, to get to the door, to answer the door, to admit the police in a dignified manner.

You raise the point that lots of innocent people are subject to search warrants. Thousands of cases every year of -- of people who didn't do anything either --

JUSTICE ALITO: Well, I think you said the -- you thought the police here had to wait what? 15 seconds? What was the figure you gave?

MR. MORAN: Well, from Banks, this Court ruled that 15 seconds -- 15 to 20 seconds was an appropriate time for a drug search.

JUSTICE ALITO: Suppose they waited 10 seconds. And so there would be a -- a constitutional violation? Why would suppression be appropriate in that situation? Why would it be in any way proportional to the -- to the violation that occurred?

MR. MORAN: Well, if it was 10 seconds, Justice Alito, the government still might have an argument. 15 seconds was enough in Banks. The Court did not say --

JUSTICE ALITO: Well, wherever the line is, suppose they're just -- they're just slightly on the wrong side of the line?

MR. MORAN: I think as a practical matter, that if the police are just very slightly on the wrong side of the line, the courts are not likely to hold that there was a knock and announce violation. But when you have a flagrant violation like here --

JUSTICE ALITO: Then you're -- you're contradicting the premise.

MR. MORAN: Well, in a case like -- in a -- if a court were to hold that the police did violate the knock and announce requirement by coming in -- by coming in, by not giving the person a reasonable amount of time to come to the door or to make himself presentable, then yes, the evidence should be suppressed because those officers need to be deterred. The -- the exclusionary rule is all about deterrence, and is there any method that will deter officers from violating the knock and announce requirement other than excluding the evidence by teaching them through example that next time you need to wait longer? You need to wait a reasonable amount of time for someone to come to the door unless you have facts suggesting that waiting a reasonable amount of time would defeat the purposes of the search.

JUSTICE SCALIA: What about -- you talk about deterrence. What about their not getting promoted? I assume that -- that police departments, even if you have some maverick officers, that the administration of the police department teaches them that they have to knock and announce. Or if it doesn't teach them that, then you do have a 1983 cause of action against the city, not just the officers. And that -- you know, that's a deep pocket.

MR. MORAN: I very seriously doubt officers such as Officer Good will not be promoted because of the violation that he committed --

JUSTICE SCALIA: Why? Really?

MR. MORAN: -- in a case like this.

JUSTICE SCALIA: You -- you know, I'm the police commissioner and I have a policy that you -- you obey the law, you knock and announce, and -- and I know that this particular officer disregards it all the time. You really think that's not going to go in his record?

MR. MORAN: I do, Justice Scalia, and I think it's inconsistent with Mapp in which the Court recognized that other remedies have proven completely futile in enforcing the -- the Fourth Amendment.

JUSTICE SCALIA: Mapp was a long time ago. It was before 1983 was being used, wasn't it?

MR. MORAN: It was before 1983 was --

JUSTICE SCALIA: You bet you.

MR. MORAN: -- being used. But I don't think section 1983 has changed the landscape here. I -- I don't think Mapp is ripe for overruling, and in fact, the Criminal Justice Legal Foundation, one of the amici for the other side, concedes that tort remedies cannot, at this time, substitute for the exclusionary rule.

If there are no other question, I'll reserve the balance of my time.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Moran.

Mr. Baughman, we'll hear now from you.

ORAL ARGUMENT OF TIMOTHY A. BAUGHMAN

ON BEHALF OF THE RESPONDENT

MR. BAUGHMAN: Mr. Chief Justice, and may it please the Court:

Justice Robert Jackson once said that when he was arguing cases before the Court, he always gave three arguments: the well-structured argument he rehearsed, the disjointed and confused argument he delivered to the Court, and the brilliant argument he thought of in the car on the way home. I have the rare opportunity to deliver the argument I thought of in the car on the way home.

(Laughter.)

MR. BAUGHMAN: But I'm going to refrain, mindful of the fact that this is our -- our second time through and try to hone in on -- on what I think are some critical points.

A search warrant, a judicial command, must be obtained from a neutral and detached magistrate. It must particularly describe the place to be searched and the things to be seized, and it must be issued based on probable cause drawn from information which is sworn to are affirmed -- or affirmed. If these requirements are met, the privacy of the described premises will be invaded, and any privilege the occupants might have to withhold evidence or contraband from the police is abrogated.

But that command must be executed in a reasonable fashion. And so the police may not bring third parties into the premises who are unnecessary to the execution of the warrant. They may not search in places where the items described may not be found. They may not cause unnecessary damage to property, and they may not use force to accomplish the entry unless consent to enter is denied either explicitly or implicitly or unless entering immediately is reasonable under the circumstances to avoid the destruction of the evidence or harm to the officers.

If no valid warrant exists in the first place, then -- and no exception exists, then the privacy of the dwelling has been unlawfully invaded. It never should have happened. But if a valid warrant exists and some error occurs in its execution, it is not the invasion of privacy which should not have occurred that is commanded by the warrant.

JUSTICE SOUTER: And you -- you concede that there was error in execution here? You concede that there was a violation because -- technically because there was no knock?

MR. BAUGHMAN: Yes.

JUSTICE SOUTER: Why do you concede that? You've got a case in which, as I understand it, not only was the evidence but the warrant itself an indication not only that drugs were present, but that guns were present. It's perfectly true we don't have a general rule that anytime you do a drug search, you can do a no-knock, but in this case you had specific evidence that there were firearms there. And based on what I've seen in the case, I don't know why Michigan did not argue that, in fact, it was justified to go in without knocking.

And I'll be candid to say you -- to tell you that the fact that Michigan does not make that argument suggests to me that Michigan is trying to structure a case in which it's going to have the best shot to -- to get the exclusionary rule out of the way here. Why don't you claim that the search was lawful?

MR. BAUGHMAN: Well, let me first say this case was not structured to try -- to try to -- to get it here on our -- on our part. I think initially the prosecutor handling the hearing here reached the conclusion that Richards precluded an argument that a no -- that the failure to knock and announce was justified here. But --

JUSTICE SOUTER: Well, Richards precluded a general rule, but it didn't preclude you from arguing in a specific case, and it's the fact that the prosecutor and, hence, all the way up the line to you do not argue that is -- is what I don't understand.

MR. BAUGHMAN: Well, again, I -- I think it would be an interesting argument to revisit Richards on this proposition.

JUSTICE SOUTER: I don't think we have to revisit Richards. I -- I think what -- what I'm -- what I'm concerned is that you don't make an argument based on the evidence in this case that you had probable cause to believe that there were going to be guns facing you when -- when you went in the door and therefore the knock was not required.

MR. BAUGHMAN: Again, I think the -- the belief of the prosecutors, as the case went forward, was that because that belief, the -- you're correct. Guns were described as things to be seized in the warrant. The probable cause for that was not any specific knowledge about a gun in the house. It was the officer's general experience that when I execute search warrants for drugs, guns tend to be there. Richards seems to say, at least it certainly could be argued, that's not sufficient. You can't make that decision based on experience that drugs and guns go together.

JUSTICE SOUTER: Well, are you suggesting -- did -- did the warrant -- I don't know this. I should but I don't. Did the warrant authorize seizure of guns as well as --

MR. BAUGHMAN: Yes, it did.

JUSTICE SOUTER: -- drugs? Well, are you suggesting that the -- the gun portion of the authorization was, in fact, invalid?

MR. BAUGHMAN: No. I -- I don't because I believe probable cause can be based on the experience of officers --

JUSTICE SOUTER: Okay.

MR. BAUGHMAN: -- without specific knowledge of the --

JUSTICE SOUTER: If -- so -- in any case, at -- at the moment that you got the warrant, you -- you had, in fact, a -- a finding by a trial court, or a -- whoever the issuing magistrate was, that there was probable cause to believe that you were going to confront guns as well as drugs inside. And -- and Richards does not seem to me to be a good reason, under those circumstances, to concede that you didn't have a basis for -- for dispensing with the knock.

MR. BAUGHMAN: It may not have been a good reason, but it was the reason in that the prosecutors believed that the rejection of the drugs and guns always go together as justifying a crime. Not knocking and announcing in Richards meant that the determination in this case that guns were on the premises based on the officer's experience that drugs and guns go together, not any specific knowledge about a gun was inadequate then to forgive knocking and announcing. That may have been a misjudgment, but it was a belief that Richards foreclosed that. It was not an attempt to set the case up. We had the Stevens case in Michigan.

JUSTICE KENNEDY: Well -- well, do you think just as an empirical matter that in most cases where there's known to be guns plus drugs, the police will enter without knocking?

MR. BAUGHMAN: No. I -- I don't believe that's the case. I think if there's specific knowledge that there are guns on the premises, yes, absolutely.

JUSTICE KENNEDY: There's -- there's specific knowledge.

MR. BAUGHMAN: Yes. They knew -- I think then they would enter without knocking. If -- if the --

JUSTICE SOUTER: There was specific knowledge here.

MR. BAUGHMAN: Well, no, it's knowledge based on experience.

JUSTICE SOUTER: Well, you got a -- you got a warrant --

JUSTICE KENNEDY: It's in the warrant.

JUSTICE SOUTER: -- that said look for them.

That's about as specific as you can get.

MR. BAUGHMAN: I understand but the facts in the affidavit justifying looking for guns was in my experience drugs and guns go together.

JUSTICE SOUTER: Well, you can't have it both ways.

JUSTICE STEVENS: But, nevertheless, was not there a finding that there was probable cause that there was a gun there?

MR. BAUGHMAN: Yes.

JUSTICE STEVENS: All right.

MR. BAUGHMAN: I would be happy to -- to, in a different case, make the argument that although Richards says a court cannot say that knock and announce is forgiven every time a drug warrant is executed on the theory that experience teaches that drugs and guns go together. I'd be happy to argue that that holding does not apply when a judge determines, in issuing the warrant, that drugs and guns go together, so I'm putting it in the warrant. I'd be happy to argue that case.

At this time --

JUSTICE SCALIA: Don't argue it to me. It doesn't make much sense.

(Laughter.)

MR. BAUGHMAN: Prosecutors believed that Richards couldn't be avoided by putting the drugs and guns go together into the warrant instead of --

JUSTICE STEVENS: May I ask this?

MR. BAUGHMAN: -- the judge --

JUSTICE STEVENS: May I ask this question about the practice in Michigan? Since People against Stevens and People against Vasquez have been decided, are there any cases, other than this one, in which a prosecutor has raised the knock and announce argument that got litigated all the way to the appellate court?

MR. BAUGHMAN: Yes, there have been a handful of cases where defense attorneys have filed a motion, despite People v. Stevens, and then they -- they have lost because of Stevens.

JUSTICE STEVENS: So but there really is no incentive for the prosecutor to fight -- argue about this anymore in Michigan, is there?

MR. BAUGHMAN: No. Now, in the criminal case, the prosecutor is responsible -- be, as it was in this case, although the judge refused to follow Stevens --

JUSTICE STEVENS: Well, it concedes there's a violation.

MR. BAUGHMAN: -- there should be no hearing.

They're not conceding the violation. They're simply saying the -- a violation is irrelevant to the question of the admission of the evidence, so we should not litigate it.

JUSTICE STEVENS: So there's no point in litigating it.

MR. BAUGHMAN: Exactly.

JUSTICE STEVENS: So it's a functional equivalent of conceding a violation in every case because there's simply no effective remedy here.

MR. BAUGHMAN: Well --

JUSTICE STEVENS: No effective remedy in the litigation itself.

MR. BAUGHMAN: In the criminal --

JUSTICE STEVENS: Of course, there's always the possibility that the officer will be disciplined by his very zealous superior, I guess.

MR. BAUGHMAN: Or -- or civil litigation. There is no -- there is no exclusion. Yes, that's correct.

JUSTICE SOUTER: Do you -- do you dispute -- your -- your brother on the other side said in his argument that he had not heard a dispute about this. But do you dispute his claim that there has never been any -- at least in recent history, any -- any civil judgment actually rendered against anyone in the officer's position?

MR. BAUGHMAN: I -- I am not aware of one from Michigan. I am aware that there have been civil judgments against officers from other jurisdictions. I'm not aware of one in Michigan. I know there have -- there are some suits that have been brought in the Eastern District that are pending. And -- and part of the difficulty is civil suits can be brought. They can be settled. There can even be trials and damages awarded, and they won't be in the reports. They're not in the F. Supp. 's. They're not in the --

JUSTICE SOUTER: But we don't -- we don't have any indication that there's an effective deterrence then in civil suits. Maybe there will be some day, but we haven't seen it yet in Michigan, I take it.

MR. BAUGHMAN: I think one could also make the argument that that cuts the other way. The fact that there are not a lot of reported decisions may mean there's not a lot of violations going on, that the police are not routinely kicking down doors without knocking and announcing when they should, and that's why they're not being sued.

JUSTICE SOUTER: And it may mean that -- that potential plaintiffs say if the courts are winking at this in the criminal case, we don't have much chance of getting a -- a verdict in a civil case.

MR. BAUGHMAN: No. It's not --

JUSTICE SOUTER: We don't know, but that might be the case too, mightn't it?

MR. BAUGHMAN: It might be, but it's not been my experience that either -- either the criminals or certainly innocent parties, people -- probable cause, after all, doesn't mean certainty. People who have had damage done or physical injury occur have been -- are shy about suing the government in those circumstances.

JUSTICE SCALIA: Is there any evidence that the citizens -- that Michiganders are less litigious than people in other States?

MR. BAUGHMAN: That certainly hasn't been my experience and certainly not in my county.

JUSTICE SCALIA: So -- so the mere existence of suits in other States ought to suffice as something --

JUSTICE KENNEDY: I -- I --

JUSTICE SCALIA: -- that's -- that's a deterrent. Shouldn't it?

MR. BAUGHMAN: I would -- I would think so.

JUSTICE KENNEDY: I still don't understand where -- where we are with guns. You -- you have a specific finding in a warrant that says there's probable cause there's going to be a gun, and there's drugs. I take it your position is that this allows you to enter without knocking.

MR. BAUGHMAN: It would be my position. I would have thought, as the prosecutor thought here, that a probable cause finding that guns are in the house, based not on any specific knowledge about guns, but based on experience in similar circumstances, was not sufficient to satisfy Richards in terms of not knocking. I would certainly make the argument that it ought to be, but I would have not criticized the prosecutor --

JUSTICE STEVENS: But why would you bother making the argument? The evidence can't be suppressed. I don't understand why -- why would there ever be any litigation over this issue in a criminal case?

MR. BAUGHMAN: And -- and I think Your Honor is correct. The prosecutor's point in this case was we shouldn't litigate --

JUSTICE STEVENS: And can you cite me any other example of a -- a violation of the Fourth Amendment? Maybe we shouldn't have held it's a violation. I understand that argument. Is there any other area of Fourth Amendment law in which the violation of the Fourth Amendment is not followed by a suppression ruling?

MR. BAUGHMAN: Well, certainly. Let me give an example. One of the circumstances that I indicated that the police -- a manner in which the police must behave when reasonably executing a warrant is not to look in places where the items sought cannot be found. If the police were searching a house for stolen computer monitors, a large object, and as they were searching for them, they opened the desk drawer where the monitor could not be and they shut it, and they found computer monitors in the home, the -- this Court has never addressed the question, that I'm aware of, but the law is uniform in the country that you would not suppress the computer monitors.

JUSTICE BREYER: Well, now you're talking about other cases in other courts. I looked through with my law clerks 300 cases since Weeks, not Mapp, Weeks. That's what we're talking about, 1914. I couldn't find in 300 cases one single Supreme Court case that did not suppress evidence where there was a Fourth Amendment violation with one exception. The exception is there are sets of cases where deterrence is really not a factor. For example, good faith; for example, it isn't going into a criminal proceeding. Okay?

Now, what I'd like you to do is to tell me if I missed some, which is certainly possible, or second, if you want us to change the rule and go back 300 years or 300 cases back before 1914, or are you going to tell us that deterrence doesn't play a role here or whatever you want? I want to put to you the state of the art as far as I can see it.

MR. BAUGHMAN: It would be my position that in all of those cases, there was a causal connection between the evidence found in the --

JUSTICE BREYER: Well, there's a causal connection absolutely here. It is a but-for connection.

MR. BAUGHMAN: Well --

JUSTICE BREYER: This person being in the room and a child of 2 would know that if you get into a room, as a result of your being in that room, you're likely to find evidence. So it's both but for and it fits within the problem. There we are.

That's the same, by the way, as it is with making a false oath to a magistrate. You make a false oath to a magistrate. That permits the magistrate to get into the house with -- the policeman gets in there with a warrant. It doesn't take the court long to suppress that. About a second. And -- and how -- how is this somehow different?

MR. BAUGHMAN: Let me try to give a couple of examples from different situations to make my point that there is a difference.

JUSTICE SCALIA: Well, give some cases first. He's talking about actual cases.

MR. BAUGHMAN: I --

JUSTICE SCALIA: I mean, isn't it possible that if his law clerk overlooked Segura, he overlooked other cases as well.

JUSTICE BREYER: No. He read Segura. We read Segura, which happens to be a case --

JUSTICE SCALIA: There was unquestionably, was there not, a violation of the Fourth Amendment in Segura?

MR. BAUGHMAN: Your Honor is correct, and I am confident that when the officers returned with the search warrant, with the officers already inside, they did not knock and announce when they when they returned to the --

JUSTICE BREYER: He is not -- well --

CHIEF JUSTICE ROBERTS: Isn't that an example where there's a violation of the Fourth Amendment that is brought up and yet suppression is not the --

MR. BAUGHMAN: Because of the habeas concerns of comity that this Court has, that's correct. It is also not suppressed.

JUSTICE BREYER: -- important exception. The exception which comes from Silverthorne is when there is an independent chain of events such that it will be -- not could be, but would be -- in fact, discovered anyway, despite the unlawfulness -- Silverthorne -- Holmes says, of course, you don't keep it out then because that's not going to impact deterrence. Now, that's Segura. That's Silverthorne. That's case after case. Of course, I accept that. And if you can show that this case somehow fits within that chain, fine. Then I -- then I maybe appear I have my mind made up on this, but I'm open to change.

MR. BAUGHMAN: Well, let -- let me try a couple of examples that --

(Laughter. )

MR. BAUGHMAN: -- that I -- that I hope might make the point. It is -- and my -- my belief is -- it's common in human experience that things can be accomplished either by command or by permission when the manner of doing so, the manner in which they end up being accomplished is subject to criticism. And let me give a couple quick examples.

If, when she was young, I sent my daughter to her room -- and that was rare, but if I sent her to her room and she stomped up the stairs and slammed the door, she would be in further difficulty not because she carried out my command by going to her room, but because she stomped up the stairs.

If a young athlete is told by his coach, catch the ball with two hands and he catches it with one, he is admonished not because he caught the ball but because he caught it with one hand.

And if a football player taunts the opposing team as he crosses the goal line, he gets a penalty not because he crossed the goal line, but because he taunted the other team.

These strictures are not prerequisites to the conduct. I do not tell my daughter go to your room but only if you don't stomp up the stairs --

JUSTICE BREYER: No, no. That's -- I -- I understand that point from your brief and I'm glad that you brought it up. But I have never -- I have never seen Fourth Amendment matters cut that finely. I have never seen the courts say I want to go back to the reason why this policeman is unlawfully in the room and then try to connect each piece of evidence with that reason. Rather, they ask is he unreasonably and unconstitutionally in the room.

So my concern about that, which I'd like you to address, is if we took that approach, I think we'd be doing it for the first time, and we'd let a kind of computer virus loose in the Fourth Amendment. I don't know what the implications of that are. I can't tell you what you're saying is illogical. It's not illogical. It's conceivable, but it strikes me as risky and unprecedented.

MR. BAUGHMAN: I think as -- as -- in the examples I gave, knock and announce works the same way. These are not prerequisites. They're rules of conduct. They are principles of behavior. It's not do this only if you behave in this manner. It's do this and behave in this manner while doing it. And if you don't behave in the manner we have prescribed, the question is what flows from that misbehavior, not from the achievement of the end.

JUSTICE STEVENS: It seems to me that your example it's -- stomping up the stairs is like failing to knock and announce.

MR. BAUGHMAN: That's correct, and -- and the police are not illegally on the premises and my daughter --

JUSTICE STEVENS: And so there should be a deterrent for the stomping up the stairs, and you've got no deterrent for the knock and announce.

MR. BAUGHMAN: Well, and part of what -- part of what I wanted to say also to Justice Breyer and I think also works here is it's -- the suggestion seems to be that knock -- that a Fourth Amendment violation -- the question of whether one has occurred and the question of whether or not the -- to apply the exclusionary rule are one in the same. And this Court has never said that. To me that would be a dramatic changing of the law of this Court. This Court has always said those are separate questions, and I think petitioner's argument conflates the two.

We first ask whether there has been a constitutional violation and then we say -- this Court has said the premise for application of the exclusionary sanction is whether or not the challenged evidence is the product of the illegal government activity. So once we establish that there has been a constitutional error, the question becomes is the challenged evidence the product of it. And just like the touchdown is not the product of the taunting, the entry into the premises is not the product of the failure to knock and announce. It's the product of a warrant, which the judge issued commanding the police to enter.

JUSTICE SOUTER: Isn't -- isn't the problem that in -- in fact, it's the product of both? The warrant alone does not get the police officer into -- into the building. It -- it is in fact the entry that gets the police officer into the building, the execution of the warrant. The judge has to do something. The police officer has to do something.

And the question that I think we face when we say is the later search the product of the entry, is -- is what your -- what -- I think a point that -- that counsel on the other side was making. It's a pragmatic point. Where do we draw the line of causation? And his answer is -- and I think the -- the answer of the cases that Justice Breyer was -- was referring to -- is this. We draw it in a way that will allow us to deter illegal police conduct, and if we engage in this slicing process of causation that you talk about, there will be no deterrent for the violation of the no-knock rule. If instead we say, yes, this is enough the product that we ought to deter -- that we ought to -- to respond to it in a way that will deter the no-knock and therefore we find causation and we get deterrence. What is fallacious about that argument?

MR. BAUGHMAN: There's nothing fallacious about the argument if one accepts that excluding the truth in -- in a criminal proceeding is a fair tradeoff in that circumstance --

JUSTICE SOUTER: We do that every single time we exclude a piece of evidence in every suppression case, don't we?

MR. BAUGHMAN: But -- but the Court has --

JUSTICE SOUTER: Don't -- don't we?

MR. BAUGHMAN: Yes, we do. But the Court has said that because that's a dramatic thing to do, because it -- it has a high societal cost, it should only be done when there is a causal connection, when the evidence is the product of the police wrongdoing.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Baughman.

MR. BAUGHMAN: I thank the Court.

CHIEF JUSTICE ROBERTS: Mr. Salmons.

ORAL ARGUMENT OF DAVID B. SALMONS

ON BEHALF OF THE UNITED STATES,

AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

MR. SALMONS: Thank you, Mr. Chief Justice, and may it please the Court:

Suppression would not be an appropriate remedy in this context for two primary reasons. The first is if the knock and announce rule does not protect the individual's privacy interest in the underlying items seized and, instead, it seeks to limit discrete risks related to the execution of warrants that property will be damaged, that officers will be mistaken for intruders, or that occupants will be caught in embarrassing situations. That makes the knock and announce rule similar to other Fourth Amendment requirements related to the manner of executing warrants such as --

JUSTICE SOUTER: Well, what -- what do you say to Justice Breyer's argument that we haven't previously analyzed suppression by tracing or trying to trace the causal connection between a particular piece of evidence and a particular reason for the rule that was broken? What we have said in the past is if the rule or the standard is violated and the search is therefore unreasonable, the evidence doesn't come in.

You're proposing a -- a different causal analysis. You're proposing a causal analysis that requires the connection between a piece of evidence and the particular reason for one of these standards in every case in which suppression is -- is requested.

Number one, do you agree that that -- that would be a departure, as Justice Breyer suggested? And number two, what would be the justification for that?

MR. SALMONS: It would not be a departure, Your Honor. In fact, that's common practice in the Fourth Amendment area. This Court, for example, in New York v. Harris looked to the purposes of the rule against arrest in the home absent a warrant and to conclude that it wasn't appropriate to suppress a statement made at the station even though it assumed that there was but-for causation. And this Court in Cruz did a similar analysis. It's very common to look to the purposes served --

JUSTICE BREYER: It's common, when you have a chain of causal connection, to say it ends somewhere. It's common, and in Harris, it ended once they left the home and now they're over in the station.

MR. SALMONS: But --

JUSTICE BREYER: This isn't over in the station. This is in the home. You speak of interests, but this doesn't interests.

What about Boyd? I mean, the most famous statement in Fourth Amendment history to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense. But it is the invasion of his indivisible right of personal security, personal liberty, and private property.

Now, I thought -- 1886 -- that's what's governed these cases for about 100 -- and far more, a century and a half or a quarter. And -- and the -- then suddenly you say, well, it's this interest in the one or the other one. I mean, doesn't that describe it?

MR. SALMONS: No, Your Honor. I mean, certainly that's -- that is one of the principles underlying the Fourth Amendment, but this Court has looked to the types of considerations I'm discussing, and I will give you some examples. And we think, in fact, the knock and announce rule is very analogous to -- for example, to a claim of unnecessary property damage or to a claim that the officers brought the media along when they shouldn't or that they used excessive force.

CHIEF JUSTICE ROBERTS: There's no doubt in here that an invasion of the home was authorized by the warrant. Right?

MR. SALMONS: That's correct.

CHIEF JUSTICE ROBERTS: The interest we're talking about is not the sanctity of the drawers. It is 10 seconds that the officers should have waited additionally, according to the -- to your brother.

MR. SALMONS: That's correct. The illegality --

JUSTICE BREYER: Correct? I'm sorry. That is correct? I -- I thought that this warrant does not say you can enter the house without knocking.

I mean, I have a warrant. This warrant lets me search the house in daytime. I search it in nighttime. Is my search authorized?

MR. SALMONS: I don't think that would be a warrantless search or I don't think that would be a violation. That might be --

JUSTICE BREYER: I have a warrant --

MR. SALMONS: -- of the manner of execution.

But again, if I may --

JUSTICE BREYER: What -- what happens with my example? I'm curious. That's not a rhetorical question.

I have a warrant which says, search 1618 5th Street. I search 1518 5th Street. Was it a warrant -- a warrant back search?

MR. SALMONS: Well --

JUSTICE BREYER: I don't have a warrant to search 1518. I don't have a warrant that allows me to come in in the middle of the night when it says day, and I don't have a warrant here that allows me to come in without knocking. So where's the warrant?

MR. SALMONS: I think the question in that case, Your Honor, would be about reasonable reliance on the warrant and whether it was a reasonable mistake. And if it wasn't, then it would be a warrantless search.

And if I may just focus the Court -- attention on the claim of unnecessary property damage. We think that's quite analogous here in part because the typical -- in the typical case, a premature or unannounced entry will be a forcible entry. But whether the claim is that the officers entered a few moments prematurely or that they unnecessarily used a battering ram on the door, in either case the -- the violation doesn't relate to the privacy interests and the items to be seized and shouldn't result in suppression. And in addition to that --

JUSTICE SOUTER: Well, it does relate to the privacy interests, and we've seen the explanation. One of the reasons for requiring the knock is that there is enough respect for a person's home, a person's privacy to say the police should not barge in like an invading army.

MR. SALMONS: Well, that certainly is --

JUSTICE SOUTER: That is a respect for privacy.

MR. SALMONS: That -- that certainly is true, Your Honor, but that -- that is not a protection --

JUSTICE SOUTER: And that is involved -- and that is -- that is the whole point of -- of knock and announce, isn't it?

MR. SALMONS: No, Your Honor. The point of knock and announce is a more limited privacy. It's not related to the privacy of the items to be seized. That's separate. And that's why it makes it like the claim of unnecessary --

JUSTICE SOUTER: We're talking about the privacy of individual in his home, and the reasonableness of the search depends upon the reasonableness of invading the individual's privacy in his home. Is that not the general rule?

MR. SALMONS: No, Your Honor. I think what -- what focuses in terms of suppression is whether the government has obtained an evidentiary advantage as a consequence of the illegality. Here, the illegality was the failure to delay a few additional moments before entry.

JUSTICE SOUTER: Then there will never be a suppression of -- of evidence specified in a warrant when the warrant's no-knock component is violated --

MR. SALMONS: But --

JUSTICE SOUTER: -- because we -- we will say -- in every single time, following your argument, you will -- we will say the -- the violation had nothing to do with the authorization to seize the evidence. The violation simply had to do with the -- with the -- the niceties and the risks involved in entering. So if we accept your argument, no-knock is -- is a dead duck, isn't it?

MR. SALMONS: I don't think so, Your Honor. If I may try to explain. I think as a general matter, with regard to physical evidence in the home that's within the scope of the search warrant, that you're -- you're probably right. Most of the time, that evidence will come in.

We think that there are probably at least two areas that might lead to suppression in these cases. One is the -- the type of statements that the Chief Justice mentioned earlier. Another might be what you might call proximity evidence, that the officers went in prematurely and as a result, they saw a --

JUSTICE STEVENS: Mr. Salmons, may I ask you this -- this question? If you'd been the prosecutor in this case and you had -- knew that the evidence would be suppressed if there were a constitutional violation, would you have conceded that there was a constitutional violation in this case?

MR. SALMONS: Well, I don't think -- I think there is a reasonable argument that could be --

JUSTICE STEVENS: Yes or no.

MR. SALMONS: I'm -- I'm attempting to answer that, Your Honor. I think there's a reasonable argument that could be made in this case that there wasn't a violation. I think it was probably a sort of strategy.

JUSTICE STEVENS: So you would not have conceded.

MR. SALMONS: I can't -- I can't second guess their strategy here to concede it.

JUSTICE STEVENS: But you would not have conceded. If you -- if you thought there was a reasonable argument, you would not have conceded that there was a violation, would you?

MR. SALMONS: I think I probably would have argued in the alternative, Your Honor. I think that's probably the safest --

JUSTICE KENNEDY: Can you tell me what -- what happens if there's a violation of the daytime warrant provision in -- in a search warrant and the search is at night? Do we suppress?

MR. SALMONS: I think generally no, Your Honor. I think -- and I would -- I would --

JUSTICE KENNEDY: Are there cases -- are there cases on that?

MR. SALMONS: I -- not in this Court. There -- there may be in the court of appeals. I think the way that the Court would analyze that would be, again, along the same lines.

Now, certainly in jurisdictions that haven't adopted the rule that we're articulating here, the courts may suppress. But we think under the principles we're articulating, that suppression probably would not be appropriate there.

JUSTICE SOUTER: No, but apparently you're saying we would not suppress because as long as the warrant specified the items to be seized and they didn't go beyond that, there was no causal connection between the fact that they broke in and disturbed people in the night, when they were not authorized to, and their ultimate obtaining of -- of the evidence. Once again, it seems to me if we follow your -- your reasoning, then the distinction between the nighttime and the daytime warrant is a dead letter.

MR. SALMONS: Well, you know, we respectfully disagree with that. We think that there are two separate questions, what the Constitution requires and whether suppression is an appropriate remedy.

JUSTICE SOUTER: The Constitution requires --

MR. SALMONS: The Court has always treated those --

JUSTICE SOUTER: The Constitution requires a reasonable search. It is hornbook law that violating no-knock, violating nighttime searches when only a daytime search is authorized amounts to an unreasonable search. You're saying that's utterly irrelevant because there's no causal connection between that violation and the seizure of the particular items that the warrant -- the warrant specified.

MR. SALMONS: Your Honor, if I may. It's also hornbook law now in this Court that you can't unnecessarily destroy property in executing the warrant or effecting the entry and that you can't bring the media along. This Court in both Ramirez and --

JUSTICE KENNEDY: I'd to get your -- I'd like to get your position. I -- I think Justice Souter is correct, that under the theory you're arguing to us here, the violation of the daytime warrant rule is not grounds for suppressing evidence. So we can have nighttime searches with no suppression remedy.

MR. SALMONS: Well, I -- I think that's probably the position that we would take. I think the way the Court would analyze that, as it has done in these other cases, it would look to two factors. One, what are the purposes served by the Fourth Amendment rule that's violated and how well those purposes fit with the remedy of suppression; and two, whether the government obtained any evidentiary advantage as a result of the violation.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Salmons.

Mr. Moran, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF DAVID A. MORAN

ON BEHALF OF THE PETITIONER

MR. MORAN: Thank you --

CHIEF JUSTICE ROBERTS: You think there -- you think there was a violation of the knock and announce rule in this case. Correct?

MR. MORAN: I do, Your Honor. The warrant was never actually made part of the record, but my understanding, from the record we have, was that only drugs -- there was only knowledge of drugs. The -- the warrant authorized a search for guns because Officer Good told the magistrate that in his experience guns were often associated with drugs. But they had no particularized information about any guns on the premises. They only had particularized information about drugs on the premises.

The issue here about causation goes back, I think, to the common law. And as Justice Breyer articulated, when an officer is illegally in the home, that causes his seizure of goods or his arrest of people in the home to be illegal. If I can go all the way back to 1831, Chief Justice Shaw of the Massachusetts Supreme Court said, the rule is well established -- this is 1831 it was well established -- that where an authority given by law is exceeded, the party loses the benefit of his justification and the law holds him a trespasser ab initio although, to a certain extent, he followed the authority given. The law will operate to defeat all acts thus done under color of lawful authority when exceeded and a fortiori will it operate to prospectively to prevent the acquisition of any lawful right by the excess and abuse of an authority given for useful and beneficial purposes.

CHIEF JUSTICE ROBERTS: How do you draw a distinction between two cases? If they illegally entered and they suddenly said we waited 4 seconds, it was supposed to be 15. They say, never mind. They go back out. There's another knock. They wait 15 and they come in. Then it's all right. Correct?

MR. MORAN: It might be.

CHIEF JUSTICE ROBERTS: Okay. But you're saying it's a world of difference if, when they go in and enter and they say, we should have waited 10 more seconds, we're the police, we're here to execute a search warrant, let's count to 10, then all of a sudden, it's invalid from there on. Those are the -- they're two different cases in your mind?

MR. MORAN: I think that's -- that's right because an -- a reasonable search and seizure, as this Court held in Wilson, requires a lawful entry. Eight Justices agreed that an -- a lawful entry is the indispensable predicate of a reasonable search in Ker v. California. These are not disconnected. It is not in.

The -- the prosecution's claim here, the respondent's claim, would eliminate all manner of entry arguments from the exclusionary rule. Nighttime search, use of excessive force, blowing up the building to get in, knocking a wall off the building wouldn't matter. They were in -- they're in, they have a warrant, everything is fine once they're in. It simply wouldn't matter for exclusionary purposes.

In Harris, I want to stress again in Harris that this Court never questioned the fact that the evidence found inside the home had to be suppressed, and that's all we're asking for here. The evidence in the home.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

The case is submitted.

(Whereupon, at 11:00 a.m., the case in the above-entitled matter was submitted.)

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: Justice Scalia has the opinion in 04-1360, Hudson versus Michigan.

Argument of Justice Scalia

Mr. Scalia: This case is here on writ of certiorari to the Court of Appeals of Michigan.

The police obtained a warrant to search the home of petitioner, Booker Hudson, for narcotics and weapons.

They found both; but in executing the warrant, the police had failed to observe the knock-and-announce requirement of the Fourth Amendment, which we have held requires police to knock, announce their presence and give residents a reasonable wait time before forcing entry.

In this case, they did knock; but they waited only five seconds before opening the unlocked door.

The State conceded that this was not long enough.

There are generous exceptions to the knock-and-announce rule, but the State did not contend that any of those exceptions applied here.

Hudson therefore moved to suppress the evidence that the police had found.

The trial court granted the motion; but on interlocutory appeal, the Court of Appeals, relying on a Michigan Supreme Court holding that knock-and-announce violations do not require suppression, reversed.

The evidence was admitted, and Hudson was convicted of drug possession.

We granted certiorari solely to consider the remedial question, whether a violation of the knock-and-announce rule invokes the exclusionary rule.

In an opinion filed today with the Clerk, we affirm the judgment of the Court of Appeals of Michigan.

As a general matter, suppression of evidence has always been our last resort, not our first impulse.

We have always acknowledged the substantial social costs associated with the exclusionary rule, among them, allowing the guilty to escape punishment because of Government errors and setting loose dangerous individuals upon society.

To invoke the exclusionary rule, our cases require three showings: first, that the Constitutional violation be a but-for cause of obtaining the evidence; second, that the causation not be attenuated; and, third, that exclusion of the evidence be the only effective deterrent of the Constitutional violation.

We think Hudson meets none of these three tests: first, the illegal manner of entry here was not a but-for cause of the police’s obtaining the evidence.

The police had a valid warrant that authorized them to go inside and take drugs or guns if they found them.

Whether they waited 5 seconds or 25 seconds, they would have found the guns and drugs; second, even assuming that there was causation, it was to attenuate it, because, as we have held, “the penalties visited upon the Government, and in turn upon the public because its officers have violated the law must bear some relation to the purposes which the law is to serve”.

The purpose of the knock-and-announce rule is threefold: it protects human life and limb.

If an officer bursts into one’s home, any citizens will assume him to be a criminal and may reach for a weapon of their own; second, the rule protects property.

If citizens are asked to open the door for law enforcement, they will save themselves the expense of having to buy a new door or a new door frame; and, third, the rule protects the privacy and dignity that may be destroyed by a sudden entrance.

As one of our prior cases put it, “the brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed”.

None of these three interests relates to preventing the police from seizing evidence.

That is the interest protected by the warrant requirement, and there was a warrant here.

Finally, coming back to the last of the three requirements for application of the exclusionary rule, the deterrent benefits of exclusion in this context seem to us minimal, and other determinants of knock-and-announce violations already exist.

We must balance this slight deterrence benefit against the costs the exclusionary rule imposes.

In addition to the usual cost of setting the criminal free, applying the exclusionary rule here to knock-and-announce violations will produce a flood of knock-and-announce claims by defendants entering a cost-free lottery with a get-out-of-jail-free card as the prize, and resolving those claims will not be as easy as resolving a claimed violation of the warrant requirement.

There either was a warrant, or there was not.

But how long is a reasonable wait time, and precisely how many seconds did the police actually wait?

Rather than deterring misconduct, the exclusionary rule would more likely deter proper police conduct.

Aware that a finding that they violated the knock-and-announce rule could lead to a violent criminal’s release, the police may be inclined to wait too long, giving criminals an opportunity to run to the bathroom and flush their drugs away or to load their weapons and take aim at the police.

As for the benefits to be derived from applying the exclusionary rule, to begin with, we doubt that there is much incentive to violate the knock-and-announce rule anyway.

The rule is subject to a broad exception, we have held.

Whenever the police have a mere, “reasonable suspicion” that knocking and announcing would be dangerous, or would permit destruction of evidence.

When the police have no such suspicion, it seems unlikely that they would prefer to burst in rather than wait a few more seconds, often for their own benefit.

And lastly, other remedies exist for cases in which the rule is violated.

The exclusionary rule was initially applied against states in 1961, half a century ago, in an environment quite different from today’s.

There were no real remedies for police misconduct.

By contrast, Section 1983 in our opinion in a case called Bivens now permit damage actions in federal courts against state and federal officers.

Courts regularly entertain such actions on knock-and-announce violations.

Section 1988 authorizes attorneys’ fees, which is a deterrent by itself.

There has been a substantial increase in the numbers of public-interest lawyers willing to assist in such lawsuits since we first adopted the exclusionary rule, and policing has become a much more professional enterprise, providing police review boards and the deterrents of a bad record and denied promotion for the police violator.

Part III of the opinion, the only part not shown by Justice Kennedy, explains why three of our prior cases demand the result we have reached here.

For these reasons, we affirm the judgment of the Court of Appeals of Michigan; Justice Kennedy has filed an opinion concurring in part and concurring in the judgment; Justice Breyer has filed a dissenting opinion, in which Justices Stevens, Souter and Ginsburg have joined.