News Is the knock-and-announce rule still valuable in modern times?

[kyleb]

I see this as another step in eliminating the exclusionary rule, which I am quite sure justice Scalia has a problem with.

That he does, get a load of http://www.law.cornell.edu/supct/pdf/04-1360P.ZO" . Here is a gem of backwards logic from it:

When, for example, a confessed suspect in the killing of a
police officer, arrested (along with incriminating evidence)
in a lawful warranted search, is subjected to physical
abuse at the station house, would it seriously be suggested
that the evidence must be excluded, since that is the only
“effective deterrent”?

 

[Hurkyl]

This is really your preferred method of serving a warrant?

Here is a scenario for you.

A man and his wife have an argument. He leaves and goes to his fathers house. She swears out a warrant, saying he beat her and has a gun. She gives his father's address as where he is. The police serve the warrant using your preferred "swat-team method."

I am glad we have not regressed to the police state mentality that you are advocating.

Are you saying that, unlike russ_waters, that you prefer the other option that was under consideration? That the police would break in, the father shoots at them, and he and some policemen die in the ensuing firefight?

I am glad we have not regressed to the police state mentality that you are advocating.

 

[kyleb]

Wow Hurkyl, that is an enormous leep in logic you pulled there.

 

[Hurkyl]

Wow Hurkyl, that is an enormous in logic you pulled there.

Well, I can't figure out what you meant to say, but allow me to recap:

If the cops came bursting into my home unannounced, they'd likely be shot before I realized who it was.

Then of course I'd be shot, but oh well, as long as they catch more drug dealers.

That's why I prefer the swat-team method: break down the door and toss a couple of flash-bangs in. That gives the cops about 10 seconds to secure the area before the people in the house regain their eyesight and hearing. Just breaking down the door still allows someone with easy access to a gun to use it and announcing your presence allows someone without easy access to a gun to go get one.

WOW

This is really your preferred method of serving a warrant?

Here is a scenario for you.

A man and his wife have an argument. He leaves and goes to his fathers house. She swears out a warrant, saying he beat her and has a gun. She gives his father's address as where he is. The police serve the warrant using your preferred "swat-team method."

I am glad we have not regressed to the police state mentality that you are advocating.

How do you propose I should have interpreted sequence of posts?

 

[kyleb]

Leap in logic, please pardon the previously missing leap.

 

[Skyhunter]

Are you saying that, unlike russ_waters, that you prefer the other option that was under consideration? That the police would break in, the father shoots at them, and he and some policemen die in the ensuing firefight?

Other option?

I am suggesting that they do it the way they always have.

They knock on the fathers door, serve the warrant, arrest the husband and let a judge and jury decide his guilt or innocence.

 

[Astronuc]

Police See No Change in Policy on Searches
http://www.npr.org/templates/story/story.php?storyId=5493387
by Nina Totenberg

All Things Considered, June 17, 2006 · A Supreme Court ruling that protects evidence collected by police who fail to knock and announce themselves. But police professionals say they see no need to change their normal practices. They don't feel handcuffed by existing rules.

The police officials apparently prefer policemen to knock in order to inform the resident(s) of a place for which they have a warrant. It is a matter of safety.

 

[Cyrus]

1. Cyrus, I was providing the case history involving interpretation of the 4th. It's usually not your interpretation (of the Constitution) or mine that decides what's the law, but the legal precedent on the matter( if such exists). Besides, the argument that you needn't knock because you have a warrant is baseless. Why then, would there only be a specific type of warrant that gives the cops the right to not have to knock?

That being said, you are making a counter argument against yourself. If the police entering your home with a search warrant is unconstitutional, then the specific "knockless" warrant would be unconstitutional (if its unconstitutional, then any knockless warrant is unconstitutional, special issue or not). Was there any problems on the issuing of "knockless" warrants? Not until now.

2. Yes, it ticks me off when someone gets off on a technicality. I'm sure it pisses of most reasonable people including judges that have sat on various courts for hundreds of years now.

Those must be some very old judges .

Let's look at this with some realistic considerations, since many here seem not to. (Not aimed at you Gokul).

Someone I know is becoming a police officer. He told me that once you put on that uniform, people treat you differently. No one wants to talk to you. That being said, the last thing the police are going to do is carry out knockless searches exclusively. It would ruin their reputatation on the street, and no one would be willing to aid them.


Now, correct me if I am wrong, but it is up to the state to decide if they want to allow their police force to have the ablity to perform knockless searches with a warrant. They can always remove this authority if it becomes abused by the police, because defining reasonable is a flexability the state has to toy with so long as the supreme court does not say no.

Just because they can carry out that type of search does not mean that they will do it all the time.

 

[kyleb]

The Court says:

The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one. See Wilson v. Arkansas, 514 U. S. 927, 931–932 (1995) . Since 1917, when Congress passed the Espionage Act, this traditional protection has been part of federal statutory law, see 40 Stat. 229, and is currently codified at 18 U. S. C. §3109. We applied that statute in Miller v. United States, 357 U. S. 301 (1958) , and again in Sabbath v. United States, 391 U. S. 585 (1968) . Finally, in Wilson, we were asked whether the rule was also a command of the Fourth Amendment . Tracing its origins in our English legal heritage, 514 U. S., at 931–936, we concluded that it was.

Although obviously, as with a search itself, the right to announced entery can be suspended though a duly authorized warrant. Regardless, that was not an issue in this case:

Happily, these issues do not confront us here. From the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation. The issue here is remedy. Wilson specifically declined to decide whether the exclusionary rule is appropriate for violation of the knock-and-announce requirement. 514 U. S., at 937, n. 4. That question is squarely before us now.

Again, the Court's ruling here allows the use of illegal methods to produce legal evidence.

 

[Cyrus]

The Court says:

Although obviously, as with a search itself, the right to announced entery can be suspended though a duly authorized warrant. Regardless, that was not an issue in this case:

Again, the Court's ruling here allows the use of illegal methods to produce legal evidence.

...and there you go again saying things that are factually incorrect. If a court rules that it is acceptable, then by definition it cannot be an illegal method. Is this so hard for you to understand? By definition, the courts decide what falls within the bounds of the law.

You need to stop being so sloppy in your choice of words, this is getting pathetic.

 

[kyleb]

I chose my words carefully to reflect the truth, you understanding of that truth is the only thing that is pathetic and sloppy here.

 

[Cyrus]

I think the truth of the issue is quite clear and explained in the article. You are the one who is manipulating the facts with your poor choice of words. (on purpose I might add).

 

[kyleb]

The truth is explained in the opinion of the Court which I have linked to and quoted from multiple times now, but you keep getting your facts wrong while falling back to indirect sources and semantic arguments anyway.

 

[Cyrus]

Look at what you said in your last post with a source.

Again, the Court's ruling here allows the use of illegal methods to produce legal evidence.

As russ has already pointed out, how can a court allow illegal methods? What don't you understand?

You keep making arguments with statements that make no sense!

 

[russ_watters]

Other option?

I am suggesting that they do it the way they always have.

They knock on the fathers door, serve the warrant, arrest the husband and let a judge and jury decide his guilt or innocence.

"The way they always have" depends on the perceived threat, Skyhunter. The method I described is a common method when the perceived threat is high.

Here is a scenario for you.

A man and his wife have an argument. He leaves and goes to his fathers house. She swears out a warrant, saying he beat her and has a gun. She gives his father's address as where he is. The police serve the warrant using your preferred "swat-team method."

If they believe her and think he's armed and willing to use the gun, what is the problem with that method? It is the safest for everyone involved, in that case.

Please explain your reasoning here.

 

[russ_watters]

Could you please to go back though this thread and try and find a quote from me to back your statement here? When you don't find it, I'll gladly thank you to apologise for constructing your argument out of a strawman.

Doctor-patient confidentiality is what you were talking about, kyleb. That's information that is by defnition confidential and therefore getting the information itself is by definition illegal. It doesn't get any more straightforward than that. It is your scenario, not mine.

 

[russ_watters]

The question is whether we require our police to work within our laws when pursuing evidence, or if we allow the use of illegal means to acquire legal evidence.

I didn't want to get into this because it is pretty much useless, but since it launched a semantics debate, let me at least explain my take. I'm sure you choose your words carefully, but perhaps even because of that, it is a very problematic statement.

The means (not waiting long enough before entering after knocking) is still illegal, and there is a remedy for it - just not the one you want. The Court decided that if the warrant itself was legal, then the illegal means of serving it is irrelevant to the legality of the evidence (as long as the means used do not affect the actual discovery of the evidence) - not allowed or disallowed, just simpy not relevant. So the ruling is not allowing illegal means or illegal evidence to be used.

This, perhaps, is where you get your jumping off point for the doctor-patient confidentiality thing. You haven't explained your logic - you haven't even outlined a hypothetical scenario, but perhaps you are thinking that if the evidence in this case is illegal (again, self-contradictory) then the courts might allow other illegal evidence (such as that protected by doctor-patient confidentiality) to be used. Nonsense.

But again, if you want to make a point, if you want to avoid confusion, make a coherent and reasoned argument. The one-liners, insinuations, and leading/misleading questions don't make for a very well-argued point.

 

[Cyrus]

The means (not waiting long enough before entering after knocking) is still illegal, and there is a remedy for it - just not the one you want. The Court decided that if the warrant itself was legal, then the illegal means of serving it is irrelevant to the legality of the evidence (as long as the means used do not affect the actual discovery of the evidence) - not allowed or disallowed, just simpy not relevant. So the ruling is not allowing illegal means or illegal evidence to be used.

This clarifies it for me Russ, thanks. Now my question for you. As Gokul has pointed out, there are knock less warrants that can be issued. Given this fact, doesn’t it seem illogical to say that knock less warrants are unconstitutional ? If they were unconstitutional, you could not issue them, period. And I think that this part you included, provided that they said the same is critical

(as long as the means used do not affect the actual discovery of the evidence)

In my opinion, the ruling shows good judgment unless someone can show otherwise.

 

[russ_watters]

Now my question for you. As Gokul has pointed out, there are knock less warrants that can be issued. Given this fact, doesn’t it seem illogical to say that knock less warrants are unconstitutional ? If they were unconstitutional, you could not issue them, period.

I must have missed that part - did the court rule knockless warrants unconstitutional? AFAIK, this case did not address knockless warrants. I'm not sure what you are talking about here...

 

[Skyhunter]

"The way they always have" depends on the perceived threat, Skyhunter. The method I described is a common method when the perceived threat is high. If they believe her and think he's armed and willing to use the gun, what is the problem with that method? It is the safest for everyone involved, in that case.

Please explain your reasoning here.

In the scenario I described there was no evidence other than the wife's word. Even if the husband had a gun he had not yet used it.

The house does not belong to the suspect, so therefore the property of an innocent citizen, and the persons of anyone else in the house would be subjected to what amounts to a military raid.

Now if they are serving a warrant against a known gang member, at the gangs home base, I can see using your method, provided the warrant specifically authorizes a knock less entry.

Your method would result in a lawsuit against the law enforcement agency and other civil institutions. And I shudder to think how the SC would rule on that one. Currently it would probably be 4, 4, and Kennedy.

I must say that the exclusionary rule is extreme in this case, however there must be some method of enforcing what is clearly, based on SC precedent, a fourth amendment issue. In this particular case I think the police knocked, tested the handle, found it unlocked and walked right in.

I had my home broken into in 1990. The police arrived while my housemate was calling them. As it turns out a neighbor saw the thieves carrying my computer out the door. The police said they had gotten a call about the thieves taking it to the "yellow house". I knew immediately which house it was and took them there. The thieves were carrying my computer through the front door, so the police just followed them right inside without knocking.

Since they had probable cause they did not need a warrant, nor did they need to knock first.

 

[russ_watters]

In the scenario I described there was no evidence other than the wife's word. Even if the husband had a gun he had not yet used it.

As I said, the cops need to make a judgement call based on their assessment of the credibility of the tip. They may or may not accept it.

The house does not belong to the suspect, so therefore the property of an innocent citizen, and the persons of anyone else in the house would be subjected to what amounts to a military raid.

That is completely irrelevant. Human life far outweighs property concerns and therefore is the police's only consideration when determining what tactics to use in a situation where lives may be at stake, as was clearly the case with Ivan's example, and may or may not be judged as such in yours. First they assess the risk, then they decide on the appropriate tactics. If the risk is low, property concerns may be taken into account. If the risk is high, they are not.

Now if they are serving a warrant against a known gang member, at the gangs home base, I can see using your method, provided the warrant specifically authorizes a knock less entry.

Sure - like I said, it is a judgement call and even in your first hypothetical it could go either way.

Your method would result in a lawsuit against the law enforcement agency and other civil institutions. And I shudder to think how the SC would rule on that one.

My response to Ivan was regarding his specific scenario or type of scenario: one where there is a reasonable expectation that lives may be at risk during the breach. I was not saying that police should always use the "swat team method".

And sure - regardless of the outcome, in today's America, I'm sure it would result in a lawsuit. That's why we need tort reform. But that's another discussion...

 

[kyleb]

This clarifies it for me Russ, thanks. Now my question for you. As Gokul has pointed out, there are knock less warrants that can be issued. Given this fact, doesn’t it seem illogical to say that knock less warrants are unconstitutional ?

No one here claimed that no-nock warrants are unconstitutional; but rather, unannounced entry is unconstitutional without such a warrant, as happened in this case, and Michigan conceded their violation of the Fourth Amendment here. The Court did not rule the entry acceptable, the means used is still illegal just as Russ stated. Is this clear to you now?

Russ, after much trying of my own, I greatly thank you for helping Cyrus to understand that the entry was not legal. Beyond that, feel free to point out what you find incoherent or unreasoned in what I have said here; but I think you are simply misinterpreting my desire to remain direct and on point. I don't want to abstract onto doctor patient confidentiality as that was simply a side point introduced by Gokul, and I did not get snippy with Cyrus but for the fact that he was belligerently arguing against the reality that the entry was illegal in this case.

But regardless of any of that, let us move on the root of your, and the Court's, opinion here:

The Court decided that if the warrant itself was legal, then the illegal means of serving it is irrelevant to the legality of the evidence (as long as the means used do not affect the actual discovery of the evidence) - not allowed or disallowed, just simpy not relevant.

Yes, that is what I have been saying all along, leaving out the direct semantic conflict for Cryus's sake; illegal means has been allowed to produce admissible evidence. Where we are disagreeing here is that your, and 5 of the Justices, argument is based on what is contested would have happened if the police had conducted a legal entry; were as my opinion, along with the 4 dissenting Justices, is based on what actually did happen.

 

[Cyrus]

I said it was unconstitutional, because Gokul's source said:

WASHINGTON, June 15 — Evidence found by police officers who enter a home to execute a search warrant without first following the requirement to "knock and announce" can be used at trial despite that constitutional violation, the Supreme Court ruled on Thursday.

The 5-to-4 decision left uncertain the value of the "knock-and-announce" rule, which dates to 13th-century England as protection against illegal entry by the police into private homes.

Justice Antonin Scalia, in the majority opinion, said that people subject to an improper police entry remained free to go to court and bring a civil rights suit against the police.

But Justice Stephen G. Breyer, writing for the dissenters, said the ruling "weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection." He said the majority's reasoning boiled down to: "The requirement is fine, indeed, a serious matter, just don't enforce it."

Perhaps I missread it? But it appears that "knockless" entry with a warrant would be unconstitutional. Thus my statement about special issue warrants for knockless entry making no sense to me.

 

[kyleb]

Does it make sense to you that a warrant can authorize a search that would otherwise be unconstitutional? That same logic applies to no-knock provisions for such warrants.

 

[Cyrus]

I'm afraid that I don't understand what you are trying to say.

What I am saying is that reading Gokul's original article, it appears to say that the search was unconstitutional because the officers did not first knock. If that is true, then what Gokul said, (the ability of a judge to issue a knockless warrant), seems contradictory. Yes?

 

[kyleb]

No, that is not contradictory at all; just as all the searches which have been found unconstitutional because officers did not have warrants by no means contradicts the ability of judges to issue warrants. I am honestly at a loss as to what you find confusing here.

 

[Cyrus]

Just as all the searches which have been found unconstitutional because officers did not have warrants by no means contradicts the ability of judges to issue warrants.

But that's comparing two dissimilar entities!

If a search is found to be unconstitutional because a police officer did not have a warrant, that means the evidence will be thrown out. That does not affect the ability of the judge to issue any further warrants.


Let's look at this once more. The police can enter and search an establishment with a warrant. Agreed? Now let's say the constitution specifically says that the police MUST knock before entering any establishment, no matter what. Then the very fact that there even exists such a warrant that gives the police explicit authority to enter without knocking is going to have to be in violation of the constitution.

 

[kyleb]

I'm sorry but I'm not going to venture into your hypothetical situation as I don't want your speculation of what otherwise could be to distract from what actually is. As for my comparison; you are distracting yourself with the disparity in the effects while my comparison is specifically directed at your question of causation. I agree with you that the effects should be the same, and so do the four Justices who dissented on this ruling.

 

[Skyhunter]

As I said, the cops need to make a judgement call based on their assessment of the credibility of the tip. They may or may not accept it. That is completely irrelevant. Human life far outweighs property concerns and therefore is the police's only consideration when determining what tactics to use in a situation where lives may be at stake, as was clearly the case with Ivan's example, and may or may not be judged as such in yours. First they assess the risk, then they decide on the appropriate tactics. If the risk is low, property concerns may be taken into account. If the risk is high, they are not. Sure - like I said, it is a judgement call and even in your first hypothetical it could go either way. My response to Ivan was regarding his specific scenario or type of scenario: one where there is a reasonable expectation that lives may be at risk during the breach. I was not saying that police should always use the "swat team method".

I get the feeling from your posts that you would opt for the S.W.A.T. method more often than I.

And sure - regardless of the outcome, in today's America, I'm sure it would result in a lawsuit. That's why we need tort reform. But that's another discussion...

Except that tort reform will mean less remedies for those who are harmed. You know as well as I that tort reform will help corporations more than individuals. Just like the majority of the legislation coming out of this corporate Congress. But like you said, it is another discussion.

 

[russ_watters]

Does it make sense to you that a warrant can authorize a search that would otherwise be unconstitutional? That same logic applies to no-knock provisions for such warrants.

I said it was unconstitutional, because Gokul's source said:

Perhaps I missread it? But it appears that "knockless" entry with a warrant would be unconstitutional. Thus my statement about special issue warrants for knockless entry making no sense to me.

Same answer to both of you:

The 4th amendment says "unreasonable", and what is reasonable depends on the case. In some cases, it is reasonable to knock (and wait) and in some cases it is reasonable not to knock, and there are different warrants covering different cases. It was stipulated in this case (the court didn't rule on it, the prosecution stipulated to it ahead of time), it was unreasonable not to knock and wait (since the warrant didn't specify that they could), so the action was therefore a violation of the 4th amendment. All that was at stake here was the remedy.

The court is not making a general statement about when it is reasonable to enter without knocking and it certainly does make sense to have different warrants for different situations. It is not a contradiction and it is not "otherwise unconstitutional" to have different warrants for different standards.

 

[russ_watters]

Where we are disagreeing here is that your, and 5 of the Justices, argument is based on what is contested would have happened if the police had conducted a legal entry; were as my opinion, along with the 4 dissenting Justices, is based on what actually did happen.

That article does not go into detail on the reasoning of the dissenting opinion. The text of the opinions can be found http://www.law.cornell.edu/supct/html/04-1360.ZS.html"

Some of the basic logic, and the basic point of disagreement between the majority and dissenting opinions:

For another thing, the driving legal purpose underlying the exclusionary rule, namely, the deterrence of unlawful government behavior, argues strongly for suppression.

Essentially, the majority says a civil suit is enough of a deterrent and the dissenters say it is not.

The would-have/could-have thing is covered here (last sentence is clearest):

The majority first argues that “the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence.” Ante, at 5. But taking causation as it is commonly understood in the law, I do not see how that can be so. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 266 (5th ed. 1984). Although the police might have entered Hudson’s home lawfully, they did not in fact do so. [and therefore they do not entertain the question of what would have followed]

The Court nonetheless accepts Michigan’s argument that the requisite but-for-causation is not satisfied in this case because, whether or notthe constitutional violation occurred (what the Court refers to as a “preliminary misstep”), “the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.” Ante, at 5. As support for this proposition, Michigan rests on this Court’s inevitable discovery cases. [key term emphasized]

So you are right that the dissenters do not take into account whether or not the evidence would have been found had the search been conducted legally. They seem to agree that it would have, but simply say it was not relevant that it would have.

So this may just have to be an agree-to-disagree issue: I agree with the majority that it matters that the evidence would have been found had the police waited another 20 seconds.

There is a portion of the dissenting opinion relevant to what you were saying about doctor-patient confidentiality:

Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920) . This case created an exception to (or a qualification of) Weeks’ exclusionary rule. The Court held that the Government could not use information obtained during an illegal search to subpoena documents that they illegally viewed during that search.

You still haven't clarified what your fear was, but it seemed like you were worried about evidence derived from information gained via a violation of doctor-patient confidentiality. The above ruling clearly makes such evidence inadmissable, and this ruling doesn't change that.

 

[russ_watters]

I get the feeling from your posts that you would opt for the S.W.A.T. method more often than I.

I'm sure I would.

Except that tort reform will mean less remedies for those who are harmed.

No. Tort reform means less frivoless lawsuits. It is not designed to stop people who are actually harmed, but only those who were not but argue they were. Separating the two is a simple matter of requiring the loser to pay the court costs of the winner or by the judge ruling the case as frivoless and assessing a fine before it even gets to open court.

Frivoless lawsuits are a cancer that is dragging the american economy down - why do you think healtcare costs are going up so much?

You know as well as I that tort reform will help corporations more than individuals.

Will it? Who pays for the outcome of the lawsuit? I got in a car accident (I rear-ended someone) and got sued by a guy who was fine when he got out of the car. He sued me and got $70,000. Yes, it is possible that he woke up the next day with a sore neck, but I don't believe for a second that he did. Regardless, who paid that $70,000? The insurance company, sure, but where did they get the money? From you and me. So yes, it will help the insurance companies if people sue less, but it will also help you and me.

Also of critical importance is who should be sued. If, for example, it is determined that in your hypothetical the police acted improperly, then they are liable for the damage. If, however, it is determined that the police acted prudently, then it is the husband not the police who are responsible for the damage. The courts do not do enough to ensure that it is the right party who has to pony up even in a just lawsuit.

 

[kyleb]

That article does not go into detail on the reasoning of the dissenting opinion. The text of the opinions can be found http://www.law.cornell.edu/supct/html/04-1360.ZS.html"

I read both last week and I have sighted and linked to the majorty opinion avalable on that website in a couple of previous posts here, but I thank you for catching up.

Some of the basic logic, and the basic point of disagreement between the majority and dissenting opinions: Essentially, the majority says a civil suit is enough of a deterrent and the dissenters say it is not.

Yes, I am already aware of this as well. Here is a bit of the dissent's contest to that claim:

Of course, the State or the Federal Government may provide alternative remedies for knock-and-announce violations. But that circumstance was true of Mapp as well. What reason is there to believe that those remedies (such as private damages actions under 42 U. S. C. §1983), which the Court found inadequate in Mapp, can adequately deter unconstitutional police behavior here? See Kamisar, In Defense of the Search and Seizure Exclusionary Rule, 26 Harv. J. L. & Pub. Pol’y 119, 126–129 (2003) (arguing that “five decades of post-Weeks ‘freedom’ from the inhibiting effect of the federal exclusionary rule failed to produce any meaningful alternative to the exclusionary rule in any jurisdiction” and that there is no evidence that “times have changed” post-Mapp).

The cases reporting knock-and-announce violations are legion. See, e.g., 34 Geo. L. J. Ann. Rev. Crim. Proc. 31–35 (2005) (collecting court of appeals cases); Annot., 85 A. L. R. 5th 1 (2001) (collecting state-court cases); Brief for Petitioner 16–17 (collecting federal and state cases). Indeed, these cases of reported violations seem sufficiently frequent and serious as to indicate “a widespread pattern.” Ante, at 2 (Kennedy, J., concurring in part and concurring in judgment).Yet the majority, like Michigan and the United States, has failed to cite a single reported case in which a plaintiff has collected more than nominal damages solely as a result of a knock-and-announce violation. Even Michigan concedes that, “in cases like the present one … , damages may be virtually non-existent.” Brief for Respondent 35, n. 66; And Michigan’s amici further concede that civil immunities prevent tort law from being an effective substitute for the exclusionary rule at this time. Brief for Criminal Justice Legal Foundation 10; see also Hope v. Pelzer, 536 U. S. 730, 739 (2002) (difficulties of overcoming qualified immunity defenses).

As Justice Stewart, the author of a number of significant Fourth Amendment opinions, explained, the deterrent effect of damage actions “can hardly be said to be great,” as such actions are “expensive, time-consuming, not readily available, and rarely successful.” Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1388 (1983). The upshot is that the need for deterrence—the critical factor driving this Court’s Fourth Amendment cases for close to a century—argues with at least comparable strength for evidentiary exclusion here.

To argue, as the majority does, that new remedies, such as 42 U. S. C. §1983 actions or better trained police, make suppression unnecessary is to argue that Wolf, not Mapp, is now the law. (The Court recently rejected a similar argument in Dickerson v. United States, 530 U. S. 428, 441–442 (2000) .) To argue that there may be few civil suits because violations may produce nothing “more than nominal injury” is to confirm, not to deny, the inability of civil suits to deter violations. See ante, at 11. And to argue without evidence (and despite myriad reported cases of violations, no reported case of civil damages, and Michigan’s concession of their nonexistence) that civil suits may provide deterrence because claims may “have been settled” is, perhaps, to search in desperation for an argument. See ibid. Rather, the majority, as it candidly admits, has simply “assumed” that, “[a]s far as [it] know, civil liability is an effective deterrent,” ibid., a support-free assumption that Mapp and subsequent cases make clear does not embody the Court’s normal approach to difficult questions of Fourth Amendment law.

Considering the facts mentioned above, I see no grounds to support the majorty's claim.

The would-have/could-have thing is covered here (last sentence is clearest): So you are right that the dissenters do not take into account whether or not the evidence would have been found had the search been conducted legally. They seem to agree that it would have, but simply say it was not relevant that it would have.

Please compare what you said above to what you said directly after:

So this may just have to be an agree-to-disagree issue: I agree with the majority that it matters that the evidence would have been found had the police waited another 20 seconds.

You can't agree-to-disagree here as the issue is not in disagreement.

There is a portion of the dissenting opinion relevant to what you were saying about doctor-patient confidentiality: You still haven't clarified what your fear was, but it seemed like you were worried about evidence derived from information gained via a violation of doctor-patient confidentiality. The above ruling clearly makes such evidence inadmissable, and this ruling doesn't change that.

Have you not read the concluding paragraph from the dissent?

There may be instances in the law where text or history or tradition leaves room for a judicial decision that rests upon little more than an unvarnished judicial instinct. But this is not one of them. Rather, our Fourth Amendment traditions place high value upon protecting privacy in the home. They emphasize the need to assure that its constitutional protections are effective, lest the Amendment ‘sound the word of promise to the ear but break it to the hope.’ They include an exclusionary principle, which since Weeks has formed the centerpiece of the criminal law’s effort to ensure the practical reality of those promises. That is why the Court should assure itself that any departure from that principle is firmly grounded in logic, in history, in precedent, and in empirical fact. It has not done so. That is why, with respect, I dissent.

 

[Skyhunter]

Originally Posted by Skyhunter
I get the feeling from your posts that you would opt for the S.W.A.T. method more often than I.

I'm sure I would.

I will just leave it at where we agree and not derail the thread into tort reform.

I do admire the way you tied tort reform into the thread with your post.