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Petitioner was arrested and charged with unlawful drug and firearm


									               Case Comment



Hudson v. Michigan, 126 S. Ct. 2159 (2006).

     Petitioner was arrested and charged with unlawful drug

and firearm possession based on evidence seized by Detroit

police officers executing a search warrant at petitioner’s

home.1   The officers executing the warrant announced their

presence and waited approximately three to five seconds

before entering.2    Petitioner argued the officers failed to

adequately knock and announce their presence before

entering3, and the resulting search was thereby

unconstitutional under the Fourth Amendment.4     The trial

court granted petitioner’s motion to suppress the evidence

discovered in the search5 pursuant to the exclusionary

rule.6   The Michigan Court of Appeals reversed on

interlocutory review and held that suppression was not

necessary for all knock-and-announce violations.7 The

Michigan Supreme Court denied petitioner’s appeal and the

evidence was used to convict petitioner.8    Petitioner

appealed the conviction, which the Michigan Court of

Appeals affirmed.9   The Michigan Supreme Court again denied
review.10   The United States Supreme Court granted

certiorari, and in affirming the appellate court’s

decision, HELD that evidence seized following a knock-and-

announce violation does not require suppression in a

criminal proceeding.11

     The Fourth Amendment provides the right to protection

from unreasonable searches and seizures.12   This right was

originally understood to explicitly bar any law which
encroached on a person’s “personal security, personal

liberty, and private property.”13   Courts have recognized,

however, that there is no provision which specifically

proscribes the use of illegally-seized evidence in legal

proceedings.14   The admittance of such evidence does not

birth a new constitutional violation and the Fourth

Amendment affords no additional protection.15    The Supreme

Court first addressed the permissibility of using such

unreasonably seized evidence in a legal proceeding in Weeks

v. United States.16

     In Weeks the Court considered whether unlawfully

seized evidence could be submitted in a criminal trial.17

Petitioner’s property was seized in a warrantless search

and was later used as evidence to obtain a conviction in

federal court.18   The Court recognized that the Fourth

Amendment did not specifically bar the use of illegally-

seized property as evidence and questioned whether there

was then a judicial duty to deny the introduction of the

property as evidence at trial.19    The court held that such a
duty existed20, and barred the use of evidence seized in

violation of the Fourth Amendment in federal courts.21

     The Court’s principle concern rested with effectuating

the Fourth Amendment.22   The Court noted that the Fourth

Amendment would serve no purpose if property could be

illegally seized and later used as evidence.23    As courts

were required to give the Constitution force and effect,

the Court found that permitting the use of evidence seized
in direct violation of the Constitution would frustrate

this goal.24   Hence, since the property was

unconstitutionally seized, the Court ordered it could not

be introduced at trial in federal court, resulting in the

creation of the exclusionary rule.25

     The Court subsequently considered whether the

exclusionary rule was to be applicable to state criminal

trials in Mapp v. Ohio.26    Mapp involved a warrantless

search and seizure by state officers at petitioner’s home.27

The evidence seized was then used to obtain a conviction in

state court.28    Prior cases established that while the

exclusionary rule was applicable in federal criminal cases

as required by Weeks29, it was not a necessary remedy in

state trials.30    The Court held otherwise, applying the

exclusionary rule in state criminal proceedings.31

     The Court examined the factors which earlier prompted

limiting the exclusionary rule to federal trials.32    While

the Court recognized that previously, deference was given

to each state in choosing how to protect its citizens from
unreasonable search and seizure33, the Court noted the lack

of effective remedies to deter future police misconduct.34

The Court emphasized, however, that the exclusionary rule

effectively deterred conduct which would violate the Fourth

Amendment.35   Without the possibility of suppression in

state proceedings, the Court declared that the Fourth

Amendment had been left unenforced.36 Thus, the Court found

the exclusionary rule was necessary to enforce the Forth
Amendment via its deterrent effect.37

     The Court explored the role of deterrence in greater

detail in United States v. Leon.38      In Leon, respondents

were convicted based on evidence seized pursuant to a

facially valid warrant.39      The warrant was later revealed to

be insufficient due to a lack of probable cause, thereby

making the search an unreasonable one.40      In determining

whether the exclusionary rule was warranted, the Court

balanced the benefits and costs associated with its

application.41     The Court held that the application of the

exclusionary rule is not required for every Fourth

Amendment violation.42

     The Court decided that the exclusionary should not be

applied when its deterrent value could not compensate for

the substantial social cost it demanded.43      In balancing the

costs and benefits, the Court recognized the inherent

disadvantages that came with excluding facially-valid

evidence.44     The Court determined that the deterrent value

was low when the officer was acting reasonably, as there
was no misconduct to deter.45      The cost of exclusion,

however, remained substantial.46      Since there was a low

deterrent value, the Court found little benefit in
suppressing evidence.         Under the balancing test, the

Court found the application of the exclusionary rule would

not effectively further the purpose of deterring future


     The Court in the instant case critically lowered the
expected deterrent effect which the exclusionary rule would

have on subsequent violations.49   The instant Court noted a

violation of the knock-and-announce rule amounted to an

unreasonable search and seizure under the Fourth

Amendment50, but emphasized this did not definitively

warrant the application of the exclusionary rule.51     Using

the Leon balancing analysis, the instant Court found

suppression was not required because the benefits in

applying the exclusionary rule did not outweigh the costs.52

The instant Court noted that, specific to knock-and-

announce violations, there was little incentive to ignore

the rule and hence, little to deter.53 Acknowledging that

while the substantial cost associated with suppressing

evidence at trial remained high, the instant Court argued

there were not enough benefits to justify using the

exclusionary rule.54

     In the instant case, the Court declined to apply the

exclusionary rule, largely in part because the exclusionary

rule was seen as a lesser deterrent.55    The instant Court
attributed the decrease in deterrent value to an increase

in alternative corrective measures.56    The instant Court

found that because other “substantial” forms of deterrence

had appeared since Mapp there was less need for applying

the exclusionary rule.57   The instant Court explained that

lawyers were more willing to litigate cases involving

misconduct; police were frequently subject to internal

departmental discipline; and there was an exception level
of professionalism among law enforcement.58

     The instant Court has given an unheralded amount of

deference to the alternative remedies to the exclusionary

rule.59   The majority goes into great detail in describing

the social costs that would incur if the exclusionary rule

were to be applied in an effort to emphasize the

substantiality of these costs.60   As the dissent notes,

however, the exclusionary rule is not something which the

Supreme Court is encountering for the first time61 – the

Supreme Court has contemplated the costs associated with

the exclusionary rule in many cases previously.62      Thus, the

instant Court does not establish a cost which is exclusive
to a knock-and-announce violation.        The costs inherent

with suppression of evidence in the instant case are

applicable in any case involving a Fourth Amendment


     In devaluing the deterrent value of the exclusionary

rule the instant Court drastically limits the situations

which warrant its application. The instant Court is correct
in noting that the benefit to the respondent is merely an

incidental effect.65 Courts must measure how effective the

exclusionary rule is in deterring violations particular to

each case.66   However, the instant Court arrives at a

fundamentally different result from previous cases in

determining the deterrent effect the exclusionary rule has

on police behavior.67 While Mapp lauded the effectiveness

of suppression in effectuating the Fourth Amendment68, the
instant Court instead shifts towards emphasizing the

alternative deterrent remedies.69    Similar to the pre-Mapp

perspective where the exclusionary rule was inapplicable in

state actions, the instant Court declines to suppress

evidence because it instead accepts the alternate remedies

as sufficient in their deterrent capability.70    The instant

Court thereby places the exclusionary rule precariously

close to becoming obsolete.71

      The remedies the instant Court extols have never

proven sufficient enough to displace the exclusionary rule

until now.72    This instant Court’s analysis is particularly

significant because the majority focuses on extant

deterrences which exist during any unreasonable search.

Only briefly does the instant Court consider a factor which

is specific to knock-and-announce violations, namely, the

incentive to violate the knock-and-announce rule.73

However, the bulk of the majority’s argument for lowering

the deterrent worth rests in demonstrating the adequacy of

these alternative deterrent measures.74    Increased
professionalism, internal discipline, and the threat of

litigation are deterrents present for any Fourth Amendment

violation.     The instant Court effectively leaves open the

possibility that these remedies can displace the

exclusionary rule in any Fourth Amendment violation.75

     Previous decisions specifically limited internal

discipline in police forces as an effective deterrent to

non-criminal situations.76    For the first time, the instant
Court has cited the professionalism of law enforcement as

an effective means of deterring Fourth Amendment

violations.77    The instant Court reaches this conclusion,

despite the fact that the lack of an effective police-

provided deterrent was a pivotal reason for originally

creating the exclusionary rule.78    However, the instant

Court seems to ignore the fact that the level of police

discipline and professionalism is a factor present with

every Fourth Amendment violation.79    Thus, it appears that

police-provided deterrents have permanently decreased the

need for the exclusionary rule.80

     The instant Court alludes to the increased

availability of attorneys and firms available to litigate

cases involving police misconduct as a means of further

deterring unreasonable searches and seizures.81    Yet despite

the increase of available advocates, there has been little

evidence to suggest this area of law is particularly

lucrative.82    The dissent notes that the bounty of cases

speaks more of a “widespread pattern” than of a reliable
deterrent.83    It is debatable whether this increase in

representation is to be attributed to some financial

incentive, as the instant Court suggests, or instead to the

sheer number of violations which are available in the legal

realm and the subsequent social outrage at the inability to

adequately deter police misconduct.84

     As given in Weeks, it is the Court’s duty to safeguard

the protections offered in the Constitution.85    In
fulfilling this duty, courts must ensure the protections

given in the Fourth Amendment do not become empty

promises.86    Effectively, the instant Court signals that the

need for the exclusionary rule is decreasing87 and accepts

the possibility that law enforcement is now capable of

adhering to constitutional tenets unguarded.88

     In fleshing out the argument that the exclusionary

rule is not to be applied when there are specific knock-

and-announce violations, the Court has set the stage for

law enforcement to completely take over responsibility for

adhering to the Fourth Amendment.89    It is questionable as

to whether the exclusionary remains an option in any future

cases involving unreasonable searches and seizures.90     Given

the instant Court’s willingness to turn to outside

alternatives, there is little doubt that situations

requiring suppression of evidence will decline, barring

outright neglect by police forces or the national

jurisprudence.    While the Court’s duty to protect the

Constitution is beyond reproach, it seems the Court has
declared the duty now rests on the shoulders of law

enforcement.     It remains to be seen whether the duty will

be adequately fulfilled

    Hudson v. Michigan, 126 S. Ct. 2159, 2161 (2006). The

warrant authorized a search of petitioner’s home for drugs

and firearms. Id. The evidence seized included a sizeable

amount of drugs and a loaded gun. Id.


    Id. The knock-and-announce rule is recognized as a common-

law principle requiring officers to knock announce their

presence when serving a warrant prior to entering a

dwelling. Id. The rule has been recognized by both federal

and state legislative action. See, e.g., 18 U.S.C. § 3109


    Hudson, 126 S. Ct. at 2161. The Fourth Amendment provides

“[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated . . . .” U.S. CONST.

amend. IV.

     Hudson, 126 S. Ct. at 2161.

     Id.; see infra notes 22-24 and accompanying text.

     Hudson, 126 S. Ct. at 2161.




     Hudson, 126 S. Ct. at 2170.

     U.S. CONST. amend. IV.

     Boyd v. United States, 116 U.S. 616, 630 (1886).

     E.g., United States v. Leon, 468 U.S. 897, 906 (1984)

(“[T]he Fourth Amendment contains no provision expressly

precluding the use of evidence obtained in violation of its

commands.” (quoting Stone v. Powell, 428 U.S. 465, 486


     E.g., United States v. Calandra, 414 U.S. 338, 354 (1974)

(“Questions based on illegally obtained evidence are only a

derivative use of the product of a past unlawful search and

seizure. They work no new Fourth Amendment wrong.”).

     232 U.S. 383 (1914).

     Id. at 389.

     Id. at 387-389.

     Id. at 389-392.

     Weeks, 232 U.S. at 391-392. The Fourth Amendment

restrained the power of the courts subject to the duty to

“forever secure the people, their persons, houses, papers,

and effects, against all unreasonable searches and seizures

under the guise of law.” Id. at 392.

     Id. at 398.

     Id. at 393. Admission of unconstitutionally seized

evidence amounted to an endorsement of illegal police

action. See id. at 394. While bringing the guilty to

justice was a central role of courts, this was subordinate

to upholding constitutional promises. Id. at 393; see also,

Segura v. United States, 468 U.S. 796, 804 (1984).

     Weeks, 232 U.S. at 393 (stating that if illegally-seized

property was admissible as evidence, then the Fourth

Amendment “might as well be stricken from the


     See id. at 392.

     Id. at 398. In reaching this conclusion, the Court noted

that the Fourth Amendment was not applicable to acts on the

behalf of individual officials who do not represent the

United States. Id. Thus, letters which were seized by

federal officials were to be excluded from introduction;

however, papers and documents seized by state officials

violated no Fourth Amendment provision. Id.

     367 U.S. 643 (1961).

     Id. at 644-645. Officers asked to search respondent’s

home, but were denied entry by respondent on the advice of

respondent’s attorney. Id. at 644. Three hours later

additional officers arrived on the scene and forced their

way into respondent’s home. Id. When respondent confronted

the officers they proffered a counterfeit warrant. Id. at

645. The resulting search was widespread and extended

throughout respondent’s home. Id.

     Id. at 645.

     Weeks, 232 U.S. at 398.

     See generally Wolf v. Colorado, 338 U.S. 25 (1945)

(arguing Fourth Amendment protection from unreasonable

search and seizure as given in Weeks was not applicable to

state actions via the Due Process Clause under the

Fourteenth Amendment).

     Mapp, 367 U.S. at 660.

     Id. at 651.

     Id. The Court referred to a California law as being

significant where the exclusionary rule was adopted because

other alternatives proved ineffective. Id.

     Id. at 652.

     Id. at 656. (stating “the purpose of the exclusionary

rule ‘is to deter . . . by removing the incentive to

disregard [the Fourth Amendment].’” (quoting Elkins v.

United States, 364 U.S. 206, 217 (1960)).

     Mapp, 367 U.S. at 660. The Court noted, “we can no longer

permit [the right to privacy] to remain an empty promise.

Because it is enforceable . . . by the Due Process Clause,

we can no longer permit it to be revocable.” Id.


     468 U.S. 897 (1984).

     Id. at 902.

     Id. at 901-903. At trial, the court had determined the

informant was unreliable and had, therefore, provided an

inadequate affidavit. Id. at 901 nn.3-4. The Court was not

presented with issue of determining the validity of this

assessment, only to determine whether the evidence seized

was to be excluded. Id. at 905.

     Id. at 907. There was no need to apply the exclusionary

rule if the application of the rule could not yield

benefits exceeding the costs it demanded. Id.

     Id. at 906. The Court emphasized that the application of

the exclusionary rule was a separate issue quite apart from

the identification of a Fourth Amendment violation. Id.

     Id. at 907.

     Id. Among the disadvantages listed, the Court noted that

the exclusionary rule impeded the fact-finding purpose of

the judge and jury, permitted the guilty to go free, and

created a lack of respect for the law. Id. at 907-908.

     Id. at 918-919 (stating that “even assuming that the rule

effectively deters some police misconduct . . .[the

exclusionary rule] cannot be expected, and should not be

applied, to deter reasonable law enforcement activity.”).

     See id. at 907.


     Id. at 920. With only a minimal deterrent effect present,

the Court could not find a basis to apply the exclusionary

rule. Id. at 922. However, suppression of evidence was

still appropriate where it could be shown an officer was

unreasonable in relying on a search warrant. Id. Hence,

where an officer fails to act reasonably, the exclusionary

rule was a sufficient deterrent due to the preventable

behavior. Id.

     Hudson v. Michigan, 126 S. Ct. 2159, 2165-2169 (2006).

     Id. at 2163; see also Wilson v. Arkansas, 514 U.S. 927,

930 (1995) (holding that a violation of the knock-and-

announce rule was a factor to be considered in determining

the reasonableness of a search and seizure under the Fourth

Amendment); Sabbath v. United States, 391 U.S. 585, 589-591

(1968) (viewing the knock-and-announce rule as critical to

the protection of the home from unreasonable intrusion).

     Hudson, 126 S. Ct. at 2163. The Court emphasized that

“[s]uppression of evidence . . .has always been our last

resort, not our first impulse.” Id.

     See id. at 2166-2168.

     Id. at 2166.

     See id. at 2167.

     Id. at 2168. The interests which the knock-and-announce

rule protected were dissimilar from the interests protected

by the right to be secure from unreasonable search and

seizure; hence, there was less need for the exclusionary

rule. See id. at 2164-2165. The use of evidence is

warranted less when the particular evidence seized bears

little relation to the actual violation committed and

discovery of evidence too far attenuated from the Fourth

Amendment violation preceding it triggers an exception to

the exclusionary rule. See generally, Segura v. United

States, 468 U.S. 796 (1984) (holding evidence will not be

excluded unless the illegal action directly caused the

discovery of evidence); Wong Sun v. United States, 371 U.S.

471 (1963) (holding exclusionary rule applies only when

evidence seized was a result of an exploitation of the

illegality committed).

     Hudson, 126 S. Ct. at 2167-2168. The deterrence benefits

lessen when other remedies are available to deter against

violations. See id. at 2166.

     See id. at 2167 (declaring that, although there was a

need for the exclusionary rule’s deterrent effect in the

past, it does not follow that there still remains a need


     Hudson, 126 S. Ct. at 2166-2168. Thus, the instant Court

concluded the availability of other remedies had begun to

supplant the need for the exclusionary rule. See id. at

2174 (Breyer J., dissenting).

     See id. at 2174 (Breyer, J., dissenting). The dissent

also notes the slippery slope which the majority has

created in turning over the responsibility of effectuating

the Fourth Amendment over to law enforcement agencies. Id.

     See id. at 2165.

     See United States v. Leon, 468 U.S. 897 at 907 (1984),

for a discussion of the frequency to which the Court has

considered the substantial costs associated with the

exclusionary rule’s application.

     See, e.g., Pennsylvania Bd. of Prob. & Parole v. Scott,

524 U.S. 357, 364 (1998) (“[O]ur cases have repeatedly

emphasized that the rule’s ‘costly toll’ upon truth-seeking

and law enforcement objectives presents a high obstacle for

those urging application of the rule.” (quoting United

States v. Payner 447 U.S. 727, 734 (1980))).

     Hudson, 126 S. Ct. at 2177 (Breyer, J., dissenting) (“The

only costs [the majority] mentions are those that typically

accompany any use of the Fourth Amendment’s exclusionary

principle . . . .”)(emphasis in original).

     Id. at 2177 (Breyer, J., dissenting).

     Id. at 2165; see also United States v. Calandra, 414 U.S.

338, 347 (1974) (“The purpose of the exclusionary rule is

not to redress the injury . . .the rule’s prime purpose is

to deter future unlawful police conduct . . . .”).

     See United States v. Leon, 468 U.S. 897, 906 (1984).

     See, e.g, United States v. Calandra, 414 U.S. 338, 348

(1974) (considering the deterrent effect attributed to the

exclusionary rule).

     Mapp v. Ohio, 367 U.S. 643, 657 (1961) (“[H]olding that

the exclusionary rule is an essential part of both the

Fourth and Fourteenth Amendments . . .makes very good


     Hudson, 126 S. Ct. at 2168. The Court further remarked

that the alternative deterrents were “substantial—

incomparably greater than the factors deterring warrantless

entries when Mapp was decided.” Id. But cf. id. at 2174

(Breyer, J., dissenting) (questioning whether alternative

remedies now adequately deter unconstitutional police


     Compare Wolf v. Colorado, 338 U.S. 25, 31 (1945) (“We

cannot . . .regard it as a departure from basic standards

to remand [persons who have been violated by unreasonable

searches] . . .to the remedies of private action and such

protection as the internal discipline of the police . .

.may afford.”), with Mapp v. Ohio, 367 U.S. 643, 652-653

(1961) (“The obvious futility of relegating the Fourth

Amendment of the protection of other remedies has,

moreover, been recognized by this Court . . . .” ).

     The Court has previously noted the trend of limiting the

applicability of the exclusionary rule. United States v.

Janis, 428 U.S. 433, 461 (1976) (Brennan, J., dissenting).

     See Hudson v. Michigan, 126 S. Ct. 2159, 2175 (2006)

(Breyer, J., dissenting).

     Id. at 2166. The Court noted that the deterrence was

truly effective only if there was an incentive to violate a

rule. Id. The Court proffered that there was little

incentive to violate the knock-and-announce rule and

claimed the deterrence in the area is “not worth a lot.”


     See id. at 2166-2168.

     See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) (examining

the same available deterrents when considering a Fourth

Amendment violation not involving a violation of the knock-

and-announce rule).

     See, e.g., Pennsylvania Bd. of Prob. & Parole v. Scott,

524 U.S. 357, 368-369 (1998) (acknowledging that

departmental discipline was an effective deterrent for

parole officers).

     Id. at 2168 (“[W]e now have increasing evidence that

police forces across the United States take the

constitutional rights of citizens seriously.”).

     See Mapp v. Ohio, 367 U.S. 643, 652 (1961).

     See Hudson v. Michigan, 126 S. Ct. 2159, 2168 (2006).

     This argument strengthens when considering the Court’s

argument that the professionalism in police forces is

“increasing.” Id.

     Id. at 2168.

     Id. (Breyer, J., dissenting).

     See id. at 2174 (Breyer, J., dissenting).

     See id. at 2168.

     See supra notes 20-21 and accompanying text.

     Hudson, 126 S. Ct. at 2173 (quoting Silverthorne Lumber

Co. v. United States, 251 U.S. 385 at 392 (1920)).

     See id. at 2168.

     The Court does not specifically address whether certain

instances specifically require judicial supervision. See

id. at 2167-2168.

     Id. at 2175 (Breyer, J., dissenting) (arguing that the

accreditation of the alternate remedies effectively creates

a new rule of law replacing the exclusionary rule).

     See id. at 2175 (Breyer, J., dissenting).


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