Friday, June 16, 2006

If the Thunder Don't Get You the Lightning Will

King George and The Supremes have been a pretty effective one-two punch when it comes to emasculating civil liberties.

The king cravenly usurps civil liberties in the dark of night and when caught sends out one of his court jesters to wave the War on Terror flag. The Supreme Court takes a more nuanced approach, but the results are the same.

And so we make another stop on the Freedom Isn't Free Tour with a 5-4 Supreme Court ruling on Thursday that police armed with a search warrant can invade your castle and seize evidence even if they don't knock.

The deciding vote was cast by (drum roll please) . . . recently minted Justice Samuel Alito, who is joined at the hip with Justices Antonin Scalia and Clarence Thomas in leading the court's relentless tack to the right. (Being a loooongtime court observer, methinks the jury is still out on Chief Justice John Roberts, but we'll see.)
The decision in Hudson v. Michigan tested previous court rulings that police armed with warrants generally must knock and announce themselves or they run afoul of the Constitution's Fourth Amendment ban on unreasonable searches.
Scalia, writing for the majority, said Detroit police admitted they violated the amendment when they called out their presence at Booker Hudson's front door while executing a search in 1998 and then burst in a few seconds later and found a gun and drugs.

Nevertheless, Scalia wrote:
Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.
Never one to let constitutional niceties get in the way when he's ax grinding, Scalia added that supressing evidence is too high a penalty for an error like police failing to properly announce themselves.

The decision probably would have gone the other way if Justice Sandra Day O'Connor had still been on the bench.

When the case was argued in January, O'Connor seemed inclined to rule in favor of Hudson. She worried aloud that officers around the country might start bursting into homes to execute search warrants:
Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?
According to Scalia, no.

O'Connor retired before the case was decided, and a new argument was held so that Alito could throw the case the Bush administration's way. He and the president's other Supreme Court pick, Chief Justice Roberts, supported Scalia's opinion, as did the ever reliable Thomas and moderate Justice Anthony Kennedy, who is quickly emerging as the so-called swing justice.

In a dissent, the court's four liberal justices complained that the decision erases more than 90 years of Supreme Court precedent.

Wrote Justice Stephen Breyer:

It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection.
Breyer said that police will feel free to enter homes without knocking and waiting a short time if they know that there is no punishment for it.


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