Detroit police officers thought they were raiding a big crack-cocaine house when they converged, seven strong, on Booker Hudson's home on the afternoon of Aug. 27, 1998. Wary of being shot, Officer Jamal Good shouted, “Police. Search warrant,” and then paused only a moment before barging in.
Good's nearly instantaneous entry violated a Supreme Court decision issued three years earlier, in Wilson v. Arkansas, that imposed a so-called knock-and-announce rule requiring police to wait a reasonable period after the initial knock before entering a private home.
When Hudson was tried on cocaine charges, he sought to exclude the evidence that police found in their search: five individually wrapped “rocks” of crack cocaine that he had in his pants pockets. Michigan courts refused, and so did the U.S. Supreme Court — in the first of three decisions under Chief Justice John G. Roberts Jr. that critics say have seriously weakened the so-called exclusionary rule against using evidence found during an illegal police search.
Writing for the majority in Hudson v. Michigan (2006), Justice Antonin Scalia said the costs of applying the exclusionary rule to knock-and-announce violations in terms of releasing criminals would outweigh any benefits in terms of protecting privacy or deterring improper police behavior. As one reason, Scalia pointed to what he called the “substantial” existing deterrents to police violations of search rules.
David Moran, then a Wayne State University law professor who represented Hudson before the Supreme Court, sharply disagreed. “It's a joke to say that the police will comply with the knock-and-announce rule without the exclusionary rule as a sanction,” he said.
The exclusionary rule, a distinctively U.S. legal doctrine, dates from a 1914 Supreme Court ruling applying it to federal court cases. The Supreme Court forced the same rule on state courts in 1961 in one of the first decisions under Chief Justice Earl Warren that expanded the rights of suspects and criminal defendants. The court trimmed but did not eliminate the rule under the next two chief justices, Warren E. Burger and William H. Rehnquist.
Supporters of the exclusionary rule, criminal defense attorneys and civil liberties advocates among others, echo Moran's view that the only effective deterrent to police misconduct in conducting searches is to exclude the evidence from trial. Critics say there are other deterrents, including police disciplinary procedures and civil damage suits.
As a White House lawyer under President Ronald Reagan, Roberts helped lay the basis for a series of attacks aimed at either amending or abolishing the exclusionary rule. Now, as chief justice, Roberts leads a five-vote conservative majority that critics say is transforming those broadsides into legal precedent.
The Hudson case came in Roberts' first full term as chief justice. Three years later, Roberts wrote for the same 5-4 majority in a second decision cutting back on the exclusionary rule. The decision in Herring v. United States (2009) allowed the use of evidence that an Alabama man was carrying when he was arrested in 2004 on the basis of what was later found to be an outdated arrest warrant. Roberts said the exclusionary rule applies only to police conduct that is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”
In a third decision, the court in June 2011 held that the exclusionary rule does not require suppression of evidence obtained by police if they relied in good faith on an established court precedent, even if it was later overruled as violating the Fourth Amendment's protections against unreasonable searches and seizures (Davis v. United States). In January, however, the court gave defense lawyers and civil liberties advocates a significant victory by limiting the authority of police to attach a GPS tracking device to a vehicle for surveillance purposes. The unanimous ruling in United States v. Jones apparently requires police to get a search warrant unless they can show a reason for an exception.
— Kenneth Jost