Political Cortex: Brain Food for the Body Politic

On Thursday, the Supreme Court ruled that police can enter a home without warning when serving a search warrant, tearing the stuffing out of the "knock and announce" rule that had been confirmed unanimously as recently as 1995 (and which dates back to the 13th century).

Considering the fact that the police were only expected to give something on the order of a cursory knock and ten seconds delay before bursting in, it's understandable that several posters have stated this is no big deal.  After all, this applies when the police are serving a valid search warrant.  Ten seconds isn't really much time.  Giving people a few seconds to zip their fly or toss on a robe seems like a "nice to have" for a civilized society, but hardly vital.  

If that's all there was to the decision, I might even agree.  Though, no... not really.  I mean, people still are presumed innocent, so a bit of warning lends at least a little dignity to the proceedings, and the dignity of the common citizen is under enough assault already.  However, the real importance of this ruling isn't just that the police might come in and find you in flagrante delicto or on the canus.

The importance of this case goes way beyond embarrassment.  It's the penalty - make that the the former penalty -- for violating the rule.  

Up until this ruling, the standing principle was that evidence gathered by an improper search was inadmissible in court.  You've heard the quaint phrasing on a hundred TV dramas.  Anything found by such a search was "fruit of a tainted tree," and subject to being tossed on the judicial scrap heap.

On television, such rulings invariably hinder stalwart district attorneys in their efforts to put some horrible murder / rapist / child molester behind bars.  In the real world, most of these "exclusionary rules" were defined in the 60's, a period when government at all levels was inclined to break into the houses of folks "upsetting the balance" (like civil rights leaders) and dig around for anything that might be used to build a case.  Trust me, there's something in your house right now that can put you in jail if the right people get a chance to frame it the right way.  The Warren Court first started the exclusionary rule in 1961, and its reach was gradually extended right up until 1995.

But now, Justice Scalia, writing for the majority, says we don't need exclusionary rules.  

Scalia responded that people like Hudson still have recourse against the city and the police by suing them for violating their constitutional rights. He also pointed to the "increasing professionalism of police forces, including a new emphasis on internal police discipline."

 On the first part of Scalia's statement, good luck.  Most states immunize police officers against this kind of action, a point that was raised in oral arguments (pdf) of the case.  

...as far as we can determine, no one wins a knock-and-announce case, or we haven't been able to find a single case in which someone has actually recovered damages for a knock-and-announce violation.

However, there's no doubt Scalia's right about that second part of the justification he gave for his ruling: the police really are much more professional today than they were forty years ago.  What he's leaving out is that the direct cause and effect relationship between that professionalism and the kind of rule he just overturned.

It's the exclusionary rule that had forced the police to get serious about fourth amendment rights against illegal search and seizure.  Previous to the exclusionary rule, various remedies and penalties had been tried.  They all failed.  It took the Supreme Court saying "look, if you don't follow the rules, you can't bring into trial," before police departments and district attorneys perked up their ears and noticed there was an amendment lurking in there between not being forced to quarter soldiers and not having to testify against yourself.

The ruling this week wasn't just about a limited use of the exclusionary rule.  It was more than first step toward repealing the rule altogether.  It was a giant leap in that direction.  Scalia, writing for the majority in the case (and backed up by Roberts and Alito - how's that dry powder sitting with you, senators?) all but announced that he would extend this ruling far beyond the current case.  Only Justice Kennedy, who sided with the majority but wrote an independent opinion limiting the scope of his vote, prevented the exclusionary rule from taking a powder on Thursday.

As they've done with abortion rights, the court stopped short of explicitly overturning existing rules, but they've gutted them of any meaning.  Expect this to be taken as a signal across the country that the fourth amendment is fair game, and expect more of these "little rulings" until the exclusionary rule exists only as a paper tiger, never put to practical use.

It's yet more proof that modern "conservatism" has nothing to do with the philosophy that held that name a few decades ago.  

The court's decision in this case blurs the image of traditional conservatism. Is it conservative to depart from long precedent and to rule that official conduct once thought to be intolerable can now be tolerated? Is it conservative to increase the power of the police at the expense of individual rights? Do conservatives want to hand government the power to intrude upon residents' lives and property without notice?

No less than Roe v. Wade, the exclusionary rule is one of those things that the modern right has decided, their infinite wisdom, needs to fall.  No knock is just a first test of their ability to take any step to reach that end.

Welcome to the 13th Century.