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Bar News - July 7, 2006

‘Knock-and-Announce’ Precariously Balances Privacy v. Security



Hudson v. Michigan: A Civil Liberties Advocate’s View

Since September 11, 2001 we have lived our day-to-day lives against the backdrop of the great theme of this century: the struggle between privacy and security. The drama of this theme was recently played out at the US Supreme Court in the case of Hudson v. Michigan.


The case started out in a mundane way. The police had a valid search warrant to search the residence of Booker Hudson for narcotics and guns. When they went to serve the warrant they announced their presence, but waited only a brief time—three to five seconds—before turning the knob of the unlocked front door and entering Hudson’s home. Therein they found what they expected to find—narcotics and guns.


Hudson filed a motion with the trial court to have this evidence excluded. He argued that the police violated his Fourth Amendment right to be free from unreasonable searches when they failed to knock and announce their presence and provide him, as a resident, a reasonable opportunity to open the door for them. After a flurry of motions and appeals in Michigan, it was ruled that the evidence could be admitted at his trial. Hudson was convicted and he appealed to the Supreme Court.


The majority and minority disagreed about the rationale for the rule, but all of the justices agreed that the “knock and announce” rule is a principle that has been enshrined in our law since the founding of the nation.


Michigan conceded that the police had violated the “knock and announce” rule, so the only question the Court had to decide was whether the evidence that the police seized in violation of the rule should be excluded from Hudson’s trial. The practical effect of excluding the evidence, of course, would be that the state could not prosecute Hudson—he would go free.


Justice Antonin Scalia wrote the opinion for the majority, which held that the evidence should not be excluded. He argued that the “knock and announce” rule is meant to protect three interests:


  • Protection of human life and limb because an unannounced entry may provoke violence in supposed self-defense by a surprised resident;
  • Protection of property because breaking into a house would penalize someone who presumably would comply with an order to open his door;
  • And, privacy and dignity because it gives residents the opportunity to compose themselves for the police, or simply to dress. Justice Scalia dubbed this “the right not to be intruded upon in one’s nightclothes”.


Justice Scalia argued that none of these interests were violated when the police entered into Hudson’s residence with a valid warrant. On the other hand, he argued that excluding the evidence generates substantial social costs—which sometimes include setting the guilty free and the dangerous at large.


Justice Stephen Breyer, writing for the minority, argued that Justice Scalia missed the real interest protected by the “knock and announce” rule, which is it “protects the occupants’ privacy by assuring them that government agents will not enter their home without complying with those requirements (among others) that diminish the offensive nature of any such intrusion.”


Thus, you have the great debate. For Justice Scalia, it is more important to convict the criminal, even if it means we have to tolerate a little government misconduct. For Justice Breyer, it is more important to deter unlawful government action and uphold the citizen’s right to privacy.


This case is an echo of the greater debate on privacy versus security engaging our country and the world. It is a debate that won’t end soon.


It is worth noting that the Supreme Court justices—not unlike our country at large—were split down the middle on this. This case was first argued when Sandra Day O’Connor was on the bench. The justices called the attorneys back for re-argument after she had left and Samuel Alito had replaced her. That indicates that the justices were divided 4-4 and needed Justice Alito to be the tie-breaker. The scale tipped toward security this time; but not by much.


Barbara R. Keshen is a staff attorney for the NH Civil Liberties Union in Concord.


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