Bang Bang Bang, on the Door Baby!

SWAT raid - file photoFor 90 years, the Supreme Court has upheld the B-52s’ dictum when it comes to searches conducted by police. Today, they decided that it’s okay for cops to just bust it down, especially if protecting your civil liberties might let bad folks stay out of jail. Let me explain how we all get to bend over and take one for the team.

The knock and announce rule basically requires that police offices knock and announce themselves when executing a search warrant, unless there’s probable cause to believe that doing so would result in the destruction of evidence, e.g. people flushing drugs or bookies destroying records. Failure to do so may be unreasonable under the Fourth Amendment, and trigger the exclusion of the evidence.

At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law “knock and announce” principle forms a part of the reasonableness inquiry under the Fourth Amendment. – Wilson v. Arkansas, 514 U.S. 927 (1995)

Today’s ruling technically doesn’t change any of that. Cops still have to knock and announce. All today’s ruling does is say that the cops don’t lose the evidence if they break the rules. The upshot of the court’s reasoning is (a) the cops would have found the gun and drugs if they had executed the warrant properly and (b) police misconduct shouldn’t prevent the government from using evidence obtained by busting a door down. As to the person who’s had his door busted down, Justices Kennedy and Scalia say that he can go pound sand file a civil claim against the police.

Justice Anthony M. Kennedy, a moderate, joined the conservatives in most of the ruling. He wrote his own opinion, however, to say “it bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry.”

Kennedy said that legislatures can intervene if police officers do not “act competently and lawfully.” He also said that people whose homes are wrongly searched can file a civil rights lawsuit.

And Scalia wrote that there are public-interest law firms and attorneys who specialize in civil rights grievances.

I love how Kennedy joins an opinion that eviscerates the knock-and-announce rule, but writes a concurrence to say that he doesn’t mean to do that. The majority ruling is what makes the law, his mealy-mouthed concurrence is just so much hand-washing to assuage his conscience.

The cops still have to knock and announce, but now they’re on their honor (or the very weak threat of a successful civil rights action). Maybe this decision won’t lead to an increase in the number of doors busted down by police, but I think the smarter bet is to buy some stock in Home Depot and the company that makes those cool SWAT team battering rams.

UPDATE by Stephen Gordon: Associate Justice Stephen Breyer cited (see page 10) Radley Balko in his dissent.

Nicholas Sarwark

Mr. Sarwark lives in Colorado and keeps poor people out of cages for a living. His views are his own, not his employer's, his wife's, or his dog's. They are also awesome and always right.

  1. sigh, yet another bullet in the cold corpse of what was once a free country. Am I surprised? Not really. What, did you actually expect them to rule against the police? That’s funny…

  2. “Kennedy said that legislatures can intervene if police officers do not “act competently and lawfully.” ”

    Why can’t the Supreme Court intervene if the police officers do act Constitutionally?

  3. In practice, this means that cops are now going to be kicking in doors all the time. We see that they have minimal fear of civil suits as it is. Why would courts administered by The State have any reason at all to find in the plaintiffs favor in such a case?

    I guess the doctrine of “forbidden fruit” will wholesale be demolished soon with this being the first step. Once that takes place, the police can openly and admittedly plant evidence on a person and succesfully have them convicted for it.

  4. My question is: How much trouble will I be in for shooting somebody bursting through my door only to find out later it was a cop serving a No-Knock Warrant?

  5. My question is: How much trouble will I be in for shooting somebody bursting through my door only to find out later it was a cop serving a No-Knock Warrant?

    I don’t know, maybe you should ask Cory Maye. I’m guessing it might be a lot.

  6. Time to write an obit for Bill O’Rights.
    He was a nice an decent guy and we enjoyed having him around.
    He always looked out for the little guy.
    He always encouraged integrity and openness.
    He took us seriously and always respected our homes when he was invited in.
    Our beliefs were always important in his presence.

    I’ll let someone else pick it up from here. I have to do some other stuff for the moment. I may buy a spot in the newspaper for it.

  7. Great decision Supreme Court. Another armed, dope dealing scumbag goes to jail. Whine away you liberal cry babies.

  8. It has always seemed a little strange to me that the police, who have already gotten a warrant, had to knock before entering. Clearly this would give suspects an opportunity to arm themselves or try to destroy evidence. If a warrant has been issued there has been a review of the situation by an impartial party which should be somewhat reassuring despite this ruling.

  9. But how is the startled suspect to know it’s not a lawless gang come to kill, rape, and rob him (not necessarily in that order)? If this gets the police shot, it’s their own fault.

    For that matter, in Iraq it’s commonplace for thugs to be uniformed as police or military (and it happens here too). Some of the thugs actually are police or military out to kill innocents.

  10. Jim, you voted for Bush, didn’t you? Come on, admit it, you’re a war-mongering nazi, aren’t you. Do you not even see the implications here? Do you not believe in the sanctity of the US Constitution and the Bill of Rights? Aparrently not. You’re too freekin’ close-minded to appreciate the principle of liberty. And you call yourself an American, you should be ashamed of yourself.

  11. HippyChimp – good example of a liberal argument – using no thoughtful ideas, just a bunch of useless name calling. People, the cops HAVE A WARRANT to enter… why should they have to knock?? A civil society should have a strong desire to protect the people who are protecting the common man. Liberals are always so concerned about protecting criminals, and then they act like their concern is for the common man. As mentioned by Paul, by making the cops announce themselves, we give the criminals time to pull out a weapon for use on the entering officers or to make their way to the bathroom to flush their drugs.

    Maybe we should make them say, “Candygram!”.

  12. sigh, another one that doesn’t get it. and by the way, that wasn’t an arguement, that was a rant. The only point of my post was to express my disgust over someone who is so clueless about constitutional protections. Just like this post, you tool.

  13. NottaLib, you must be in the same fantasy world as Justice Scalia if you think this has anything to do with criminals.

    This is ENTIRELY about the innocent, who very frequently get arrested or even killed at the hands of out-of-control police.

    If you want to cover your eyes and pretend it isn’t happening, that will only work until it’s YOUR house they bust into.

  14. Cops enforcing bad laws (the drug war) are enemies of Liberty, I don’t give a damn about their “warrant”.

  15. Nottalib, your problem is you’re speaking to us as if we’re left-wing wackos, and we aren’t. We’re in fact far more conservative than you are.

    If you want to continue to defend the police state, go right ahead. But realize you aren’t talking to left-wing nutjobs here.

  16. as a left-wing nut job i can say that defending the police state is exactly what right wing nut-jobs like notalib are good at. name a major “issue” in our current political scene in which repubs are not seeking to diminish somebody’s rights.

    patriotism leads to nationalism leads to fascism.

  17. Okay, I was always the impatient one in law school (just get to the freakin’ point, prof) but without stepping into who has more liberal or con cred than who, the scary thing about this decision is that it’s one more nail in the coffin, & totally possible that we will soon be seeing “faux” police battering down our doors trying to get the goods on us for thought crimes against the state. That’s where the unimatary excessutive seems to be headed now, & the S.Ct., instead of stopping it, is right behind it. Anybody else thinking of moving abroad? It really scares the shit out of me. Never thought I’d live to see the day.