Alito's First Big Decision

Today saw a fairly rare occurrence in the Court with the reargument of a Fourth Amendment / exclusionary rule case, Hudson v. Michigan. The outcome will be fairly significant, potentially (always a necessary qualifier when dealing with the Court), to the field of criminal procedure. At the broadest level, the case involves the question of whether evidence obtained during a search that violates the "knock-and-announce" rule must be excluded at trial.

As those who have taken crim. pro. certainly know, the Court has held that the Fourth Amendment requires searches to be "reasonable" not only in the standard of suspicious needed to justify a search (usually probable cause), by warrant or otherwise, but also must reasonable in execution. In the context of the execution of search warrants in private homes, the Court has in the recent past adopted the knock-and-announce rule as a presumed requirement for reasonable execution. In brief, the rule requires that police knock, announce their identity and the fact that they have a warrant, and give the occupants a reasonable period of time to answer the door before entering the premises. Police can forgo the requirement if, essentially, they have good reason to do so. Hudson involves a situation where the police, without good reason, knocked and announced their presence but forced entry into a house immediately after. The police found drugs in the pocket of one of those in the house.

Michigan has essentially conceded that the knock-and-announce rule was violated. But the state argued before the Court that the exclusionary rule should not apply to such violations. Not all violations of the Fourth Amendment trigger the exclusionary rule, and Michigan contends that applying exclusion in cases like Hudson is not necessary or justifiable to deter knock-and-announce omissions. The first argument in the case occurred while Justice O'Connor was still on the Court, and the fact that it is being reargued suggests that the other justices are split 4-4.

Enter Justice Alito. If Alito votes against exclusion, it will represent a continuing trend of the Court moving away from application of the rule for what might be considered especially technical, almost de minimis breaches of the Fourth Amendment. Of course, there are those of the opposite view, including the ACLU and (somewhat interestingly) the Cato institute. An AP story is here.