Amicus Curiae Brief — Hudson v. Michigan

5

identity and purpose and wait a reasonable period of time for

an otcupant to answer the door. In addition, there remain

significant alternative remedies for cor.stitutional violations,

such as liability under 42 U.S.C. 1985 and the doctrine of

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), or criminal sanctions, as well

as non-judicial remedies, such as the possibility of departmen-

tal discipline.

In any event, this Court has never permitted a desire for

greater deterrence of police misconduct to take precedence

over the universal requirement that evidence sought to be

suppressed must be causally connected to the illegality. Es-

pecially where, as here, the claim of illegality goes only to the

manner of executing the search, this Court’s cases make clear

that suppression of all evidence obtained during the warrant-

authorized search would be a disproportionately severe rem-

edy.

ARGUMENT

SUPPRESSION OF EVIDENCE IS NOT AN APPROPRI-

ATE REMEDY FOR A KNOCK-AND-ANNOUNCE VIO-

LATION WHERE THE EVIDENCE WAS SEIZED PUR-

_SUANT TO A VALID WARRANT AND WOULD HAVE

BEEN DISCOVERED EVEN IF THE OFFICERS HAD

DELAYED ENTRY INTO THE PREMISES

The manner in which a search or seizure occurs is gov-

erned by the reasonableness requirement of the Fourth

Amendment. See United States v. Ramirez, 523 U.S. 65, 71

(1998); Graham v. Connor, 490 U.S. 386, 395 (1989). In Wil-

son v. Arkansas, 514 U.S. 927, 931 (1995), this Court held that

the common-law requirement that officers announce their

identity and purpose before entering a home to execute a

search forms part of the Fourth Amendment inquiry into the

reasonableness of the officers’ entry.

6

Unlike other Fourth Amendment requirements, such as

the warrant and probable-cause requirements, the knock-and-

announce rule does not protect against improper government

discovery or seizure of personal items. Rather, the rule

serves three narrower interests. First, it protects “the indi-

vidual privacy interests intruded upon by a no-knock entry.”

Richards v. Wisconsin, 520 U.S. 385, 393 (1997). Although

the search or arrest warrant itself justifies a significant intru-

sion on the occupants’ privacy interests, an announcement

before entry tempers the suddenness of the invasion of pri-

vacy. See id. at 393 n.5. Second, a prior announcement pro-

tects officers from the possibility that occupants will take

violent defensive action based on the mistaken assumption

that a criminal intruder is at the door. Sabbath v. United

States, 391 U.S. 585, 589 (1968). Third, a knock before entry

prevents needless damage to the door of the home by giving

occupants an opportunity to admit the officers peacefully.

Miller v. United States, 357 U.S. 301, 307-308, 313 (1958).'

In light of the State’s concession, this case proceeds on

the assumption that petitioner’s Fourth Amendment rights

were violated by the officers’ early entry into his residence to

effectuate the search warrant. It does not follow, however,

that the premature entry requires suppression of the evidence

that was seized pursuant to the warrant. As noted, peti-

tioner’s interest in avoiding improper government seizure of

his personal items is not among the Fourth Amendment inter-

ests protected by the knock-and-announce rule, especially in

the context of a search supported by a jawful warrant.

' Wilson made clear that the knock-and-announce principle is not an

absolute requirement, but may be overcome by “countervailing law enforce-

ment interests.” 514 U.S. at 934; id. at 935-936 (noting “presumption in favor

of announcement” could be overcome where, inter alia, officers face “a threat

of physical violence” or “have reason to believe that evidence would likely be

destroyed if advance notice were given”); accord Richards, 520 U.S. at 394;

Ramirez, 523 U-S. at 67-68 (applying Richards’s reasonable-suspicion standard

to cases where no-knock entry results in property destruction).

7

A. Failure To Comply With The Knock-And-Announce

Rule Does Not Require Suppression Of Evidence

Seized Under The Warrant Because Such Evidence Is

Not The Fruit Of The Premature Entry

The exclusionary rule requires suppression only when

evidence is acquired as a consequence of unlawful conduct.

When officers seize evidence pursuant to a lawful warrant, the

evidence seized is the fruit of the warrant, rather than the

fruit of the unreasonable manner in which the police effected

entry. Because the evidence seized under warrant is not the

product of the particular government conduct that violated

the Fourth Amendment, the exclusionary rule is not an appro-

priate remedy.

1. The Court Has Carefully Limited Application Of

The Exclusionary Rule To Those Instances Where

It Is Most Likely To Accomplish Its Remedial

Aims Without Imposing Undue Costs

This Court has repeatedly recognized that the exclu-

sionary rule imposes significant costs on society by prevent-

ing the use at trial of reliable, probative evidence, thereby

allowing culpable defendants to go free.* The Court has also

“ ‘The Court has recognized, for example, that there is a compelling “public

interest in prosecuting those accused of crime and having them acquitted or

convicted on the basis of all the evidence which exposes the truth.” Alderman

v. United States, 394 U.S. 165, 175 (1969); see United States v. Payner, 447 U.S.

727, 734 (1980) (“Our cases have consistently recognized that unbending appli-

cation of the exclusionary sanction to enforce ideals of governmental rectitude

would impede unacceptably the truth-finding functions of judge and jury.”).

The exclusionary rule, if not properly limited, threatens to undermine this in-

terest by allowing “[t/he criminal * * * to go free because the constable has

blundered.” Nix v. Williams, 467 U.S. 431, 447 (1984). It also can give rise to

a public perception of unfairness that can have the “effect of generating disre-

spect for the law and administration of justice.” Stone v. Powell, 428 U.S. 465,

491 (1976). See generally United States v. Leon, 468 U.S. 897, 907-908 (1984);

lilinois v. Gates, 462 U.S. at 254-261 (White, J., concurring in the judgment).

8

emphasized that the exclusionary rule is a “remedial device,”

and that as such, its application “has been restricted to those

areas where its remedial objectives are thought most effica-

ciously served.” United States v. Calandra, 414 U.S. 338, 348

(1974); [Illinois v. Gates, 462 U.S. 213, 257 (1983) (White, J.,

concurring in the judgment) (“{E]xclusion of evidence is not

a personal constitutional right but a remedy, which, like all

remedies, must be sensitive to the costs and benefits of its

imposition.”).

For these reasons, the exclusionary rule generally has

been invoked only to suppress “[e]vidence obtained as a direct

result of an unconstitutional search or seizure.” Segwra v.

United States, 468 U.S. 796, 804 (1984) (emphasis added); see,

e.g., Arizona v. Hicks, 480 U.S. 321 (1987); United States v.

Chadwick, 433 U.S. 1 (1977); Chimel v. California, 395 U.S.

752 (1969); Katz v. United States, 389 U.S. 347 (1967); Mapp

v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S.

383 (1914). In addition, evidence that is obtained through ex-

ploitation of the prior illegality may be subject to suppression

as the “fruit of the poisonous tree.” Wong Sun v. United

States, 371 U.S. 471, 488 (1963). In order for evidence to be

considered a “fruit” of the illegality, however, there must nec-

essarily be a causal connection between the evidence the gov-

ernment is seeking to introduce and the relevant illegality.

Put another way, suppression is appropriate only if “the chal-

lenged evidence is in some sense the product of illegal govern-

mental activity.” United States v. Crews, 445 U.S. 463, 471

(1980). The test for determining whether evidence is the

“fruit” of a prior illegality is whether it was “come at by ex-

ploitation of [the initial] illegality or instead by means suffi-

ciently distinguishable to be purged of the primary taint.”

Wong Sun, 371 U.S. at 488 (citation omitted); see Rawlings v.

9

Kentucky, 448 U.S. 98, 106-110 (1980); United States v.

Ceccolini, 435 U.S. 268, 274 (1978).*

As this Court’s cases have made clear, evidence is not a

“fruit” of a constitutional violation if it was, or inevitably

would have been, obtained irrespective of the constitutional

violation. As the Court explained in Murray v. United States:

[T]he interest of society in deterring unlawful police

conduct and the public interest in having juries receive

all probative evidence of a crime are properly balanced

by putting the police in the same, not a worse, position

that they would have been in if no police error or mis-

conduct had occurred. ... When the challenged evi-

dence has an independent source, exclusion of such evi-

dence would put the police in a worse position than they

would have been in absent any error or violation.

487 U.S. 533, 537 (1988) (emphasis added) (quoting Nix v.

Williams, 467 U.S. 431, 443 (1984)); see id. at 542 (“[W]hile

the government should not profit from its illegal activity, nez-

ther should it be placed in a worse position than it would

otherwise have occupied” absent the illegality.) (emphasis

added). Thus, suppression is not appropriate when the

Fourth Amendment violation does not place the government

> Petitioner mistakenly asserts (Pet. Br. 11) that Wong Sun and Silver-

thorne Lumber Co. v. United States, 251 U.S. 385, 390-392 (1920), stand for the

proposition that “any kind of evidence found inside private premises following

a police entry that is illegal for any reason is inadmissible.” Those decisions

stand only for the familiar principle that the direct and indirect fruits of an

illegal arrest or search should be suppressed when they bear a sufficiently close

causal connection to the underlying illegality. Wong Sun treated as an “illegal

arrest” one in which the police lacked probable cause to detain the suspect;

Silverthorne treated as an “illegal search” one in which the police searched the

defendant's home in the absence of a warrant. In both cases, evidence acquired

as a result of the illegal arrest (Wong Sun) and illegal search (Silverthorne),

was a “fruit” of the illegality. In this case, by contrast, the entry and search

were made pursuant to a warrant and thus were not “illegal” in the sense used

by either of those cases.

10

in any better position with regard to the discovery of evidence

than it would have occupied if the police had complied with

the Constitution. See id. at 541.

The Court has consistently applied the principles limit-

ing the fruits doctrine to bar the suppression of evidence

when it has determined that the receipt of evidence was not

“caused” by the particular illegality. In United States v.

Crews, supra, a robbery victim identified her assailant after

he was arrested without probable cause. The Court assumed

that the post-arrest identification should be suppressed, but

it refused to suppress the victim’s later in-court identification

of her assailant as the fruit of the defendant’s illegal arrest.

The Court noted that the victim came forward before the ar-

rest occurred, and therefore her presence at trial was not

traceable to the Fourth Amendment violation. Suppression

was inappropriate, the Court held, because “the Fourth

Amendment violation * * * yielded nothing of evidentiary

value that the police did not already have in their grasp.” 445

U.S. at 475. The Court therefore found, as a threshold mat-

ter, that the in-court identification was not “come at by exploi-

tation’ of * * * the defendant’s Fourth Amendment rights.”

Id. at 471 (quoting Wong Sun, 371 U.S. at 488).

In New York v. Harris, 495 U.S. 14 (1990), the Court

relied on Crews to reach a similar result. The defendant in

Harris was arrested in his home. The arresting officers had

probable cause to arrest him, but they did not comply with

Payton v. New York, 445 U.S. 573 (1980), which generally

requires a warrant to arrest a suspect in his home. After be-

ing taken from his home, the defendant made an incriminating

statement at the station house. The Court held that the

station-house statement was not a fruit of the Payton viola-

tion. The Court noted that Harris was not “unlawfully in cus-

tody” while he was detained at the station house, because “the

officers had probable cause to arrest [him] for a crime.” 495

U.S. at 18. Emphasizing that the penalties imposed for offi-

11

cers’ violation of the law “must bear some relation to the pur-

poses which the law is to serve,” id. at 17 (quoting Ceccolini,

435 U.S. at 279), the Court concluded that Harris’s station-

house statement should not be suppressed because it was not

“the fruit of having been arrested in the home rather than

someplace else.” Jd. at 19.

The Court has at least twice applied related causation

principles to refuse to suppress evidence seized under war-

rant. In Segura, supra, police illegally entered an apartment

without a search warrant and stayed there for 19 hours secur-

ing the premises. The next day, the police obtained a valid

warrant and searched the apartment, seizing evidence, includ-

ing narcotics. The “curt noted that because the affidavit sup-

porting the search warrant contained no information deriving

from the illegal entry, the illegal entry “did not contribute in

any way to discovery of the evidence seized” and the evidence

was not “the product of illegal governmental activity.” 468

U.S. at 815 (quoting Crews, 445 U.S. at 471); id. at 814 (hold-

ing that “legality of the initial entry is * * * wholly irrele-

vant” to admissibility of evidence seized pursuant to a valid

warrant).

Likewise, in Murray, supra, officers first observed evi-

dence during an illegal, warrantless entry into a warehouse.

They later obtained a search warrant, searched the ware-

house, and o’ ‘tained that evidence. The Court noted that the

affidavit seeking the warrant had included no information

gleaned during the initial entry, and that the decision to ob-

tain that warrant was unaffected by the illegal entry. As in

Segura, the Court held that the evidence had an “independent

source”—the search pursuant to the warrant—and deter-

mined that it should not be suppressed. “[WJhile the govern-

ment should not profit from its illegal activity,” the Court

emphasized, “neither should it be placed in a worse position

than it would otherwise have occupied” absent the illegality.

487 U.S. at 542.

12

Finally, in Nix v. Williams, 467 U.S. 431 (1984), the

Court declined to apply the exclusionary rule to suppress the

body of a victim to which the police had been led through an

improperly obtained statement of the defendant, when the

body would have inevitably been discovered by a then-ongoing

search. The Court emphasized that even if the discovery of

evidence is “in some sense” a product of government activity,

the exclusionary rule’s purposes would not be served when

the evidence would have been acquired any way by lawful

means. /d. at 444-448 (quoting Crews, 445 U.S. at 471) (em-

phasis added in Niz).

While the various doctrines—inevitable discovery, inde-

pendent source, and the causation rules—describe different

ways in which a violation should not lead to suppression, they

all reflect the principle that suppression is too high a price to

pay for a particular violation when the causal link between the

violation and the acquisition of evidence is weak, non-existent,

or irrelevant to exclusionary-rule policies. That is the case

when, notwithstanding an antecedent violation, evidence is, or

inevitably would have been, acquired pursuant to a valid and

untainted search warrant.

2. A Premature Entry Is Not Causally Related To

The Seizure Of Evidence Pursuant To The Warrant

Causation is equally lacking, and suppression inappro-

priate, where the sole defect in a warrant-authorized search

is the failure of the police to comply with the knock-and-an-

nounce requirement. In such cases, it is not the premature or

unannounced nature of the entry that leads to the discovery

of evidence within a home. It is the fact that the police have

a judicially authorized warrant supported by probable cause

that authorizes them to seize that evidence. The seized evi-

dence is therefore not the “product” of the prior Fourth

Amendment violation (the premature entry); rather, it is the

product of the warrant-authorived search.

13

Under this Court’s cases, the exclusionary rule should

therefore not apply. There is no dispute in this case that the

officers had the authority to search for and seize the evidence

in question. The only complaint is about the manner in which

they executed the warrant, i.e., by entering prematurely.

Because the prematurity of the entry into petitioner’s resi-

dence “did not contribute in any way to discovery of the evi-

dence seized under the warrant,” not even the threshold “but

for’ requirement” for the “fruits” doctrine was met in this

ease. Segura, 468 U.S. at 815 (citation omitted); see Harris,

495 U.S. at 19. Nor is there any dispute that had the police

complied with the knock-and-announce requirement—had the

illegality never occurred—the officers would have inevitably

discovered the same evidence. See United States v. Langford,

314 F.3d 892, 894 (7th Cir. 2002) (“[1}t is hard to understand

how the discovery of evidence inside a house could be any-

thing but ‘inevitable’ once the police arrive with a warrant.”)

(citation omitted), cert. denied 540 U.S. 1075 (2003). The con-

clusion that the evidence should not be suppressed thus fol-

lows both from this Court’s cases—such as Crews, Harris,

Segura, and Murray—requiring that the challenged evidence

be shown to be a “product” of the illegality, and from the

inevitable-discovery doctrine of Nix.

To exclude the evidence would “put the police in a worse

position” than they would have occupied absent the knock-

and-announce violation. Nix, 467 U.S. at 445.‘ The interest

© Petitioner argues (Pet. Br. 27-34) that the Michigan Supreme Court inter-

preted the “worse position” language in Niz in a fashion that would eviscerate

the exclusionary rule, because it would allow the police—in any case in which

probable cause existed—to argue that the evidence would have inevitably been

discovered if they had behaved lawfully. But that reading of Niz is not

required in order to conclude that it is the pre-existing judicial warrant that

commanded the officers to search that made the discovery of the contraband

inevitable once the officers arrived to execute the warrant. Even though the

officers retained discretion in executing the warrant, see Town of Castle Rock

v. Gonzales, 125 S. Ct. 2796, 2808 (2005), the warrant itself represents a judicial

14

of society in obtaining probative evidence in this context is

particularly acute because, in cases involving knock-and-an-

nounce violations, the police by definition wil] have already

obtained a search warrant from a neutral magistrate based on

probable cause that a crime has been or is being committed,

and will have carried out the command of that judicial warrant

by searching for evidence of that criminal activity.”

Petitioner argues (Pet. Br. 22-27) that the independent-

source and inevitable-discovery doctrines cannot save a

warrant-authorized search that follows on the heels of a

knock-and-announce violation because in such cases there is

no wholly independent source for the seized evidence. It fol-

lows, he claims, that evidence seized during that search is the

direct fruit of the illegal entry. He attempts to distinguish

Segura and Murray on the ground that in those cases, there

was one illegal search, followed by a second search that had

both a legal warrant and a legal entry. Cf. United States v.

directive to search the premises, see Mich. Comp. Laws Ann. § 780.654 (West

1998) (requiring that “search warrant shall be directed to the sheriff or any

peace officer, commanding such officer to search the house, building, or other

location or place, where any property or other thing for which he is required to

search is believed to be concealed”) (emphasis added). Cf. Fed. R. Crim. P.

41(e)(2) (stating that “warrant must command the officer to * * * execute the

warrant”).

° It is possible, of course, that had the officers in this case not made a pre-

mature entry after announcing their presence and purpose, persons inside the

home who were alerted to the arrival of the police might have destroyed the

drugs during the brief interval between the officers’ announcement and their

entry into petitioner’s home. Petitioner does not rely upon that possibility as

a basis for arguing that the evidence seized pursuant to the warrant was the

“fruit” of the early entry, nor could he. In Segura, this Court rejected the

analogous claim that, because Segura could have destroyed drug evidence

during the hours that the police unlawfully secured his apartment from the

inside, the unlawful entry caused discovery of the evidence. The premise of

that claim, the Court stated, “is that there is some ‘constitutional right’ to

destroy evidence. This concept defies both logic and common sense.” 468 U.S.

at 816.

15

Dice, 200 F.3d 978, 985 (6th Cir. 2000) (Murray and Segura

“involved a second search pursuant to a valid warrant, and

that second search was independent of the illegal initial

search.”); United States v. Marts, 986 F.2d 1216, 1220 (8th

Cir. 1993) (same).

As an initial matter, petitioner is mistaken about

Segura. Although that case involved two searches, it, like this

case, involved only a single (and defective) entry. See 468

U.S. at 819 (Stevens, J., dissenting) (noting that the agents

that had illegally entered and remained inside to secure the

apartment conducted the warrant-authorized search once

they were notified that the warrant had issued). Petitioner’s

argument that an unlawful entry necessarily taints any search

conducted following that entry is therefore flatly inconsistent

with Segura, which found the “legality of the initial entry” to

be “wholly irrelevant” to the admissibility of evidence seized

pursuant to a valid warrant: /d. at 814.

Petitioner’s argument also misperceives the relevant

inquiry. The warrant-authorized searches in both Segura and

Murray provided an independent source for the seizure of the

evidence because the warrants were not based on any infor-

mation acquired as a result of the initial illegal entries. But

when the only alleged violation is a premature entry in the

execution of a previously obtained, otherwise valid warrant,

it is beyond dispute that the warrant is not based on any evi-

dence acquired as a result of the unlawful manner in which

the officers gained entry. The facts concern*ng entry do not

somehow work to deprive the warrant of its status as an inde-

pendent, untainted basis for the search. Thus, the previously

issued warrant furnishes an independent basis for the search

that cannot be tainted by the subsequent unreasonable entry.

Petitioner’s argument also fails to focus on the precise

nature of the alleged violation. Although there was only one

“search” of petitioner’s home, the search itself—which was

conducted pursuant to a valid warrant—was not unlawful.

16

Nor was the entry into petitioner’s home unauthorized. The

only aspect of the police officers’ conduct that was unlawful

was their failure to wait for a brief additional period before

entering, and petitioner makes no claim that the premature

entry itself resulted in the discovery of any evidence.

It is more than a little anomalous to suggest that police,

as in Segura and Murray, may validly seize evidence pursuant

to an untainted warrant when the earlier illegality is the

greater one of entering a residence in the absence of any war-

rant at all, but they may not validly seize evidence pursuant

to an untainted warrant when the antecedent illegality is the

lesser one of entering a few moments prematurely during the

execution of a valid warrant. Neither precedent nor logic

dictates such a result.

3. Violations Relating Only To The Manner Of Exe-

cuting Warrants Do Not Require Suppression Of

All Evidence Seized During the Warrant-Autho-

rized Search

This and other courts have repeatedly indicated that

suppression is not an appropriate remedy for every illegality

that might occur in the manner in which officers execute a

valid search warrant, especially where the Fourth Amend-

ment’s regulation of the manner of the search reflects inter-

ests distinct from the privacy interest in the underlying seized

items. For instance, in United States v. Ramirez, 523 U.S. 65

(1998), this Court implicitly recognized that the failure to

execute a search warrant in a reasonable manner does not

inevitably lead to the suppression of any evidence; rather,

suppression is warranted only if the evidence seized is the

product of the particular illegality. There, as part of their

entry into the home, police executing a “no-knock” warrant to

search for drugs and guns broke a garage window and aimed

a gun through the opening in order to discourage anyone from

gaining access to weapons the police believed might be in the

17

garage. This Court rejected the court of appeals’ conclusion

that a higher level of exigency was required to justify a no-

knock entry that results in such property damage. /d. at 71.

But the Court did not hold that the police have carte blanche

to destroy property during the execution of a warrant. Ob-

serving that the manner in which police execute a search war-

rant is governed by the “general touchstone of reasonableness

which governs Fourth Amendment analysis,” ibid., the Court

stated: “Excessive or unnecessary destruction of property in

the course of a search may violate the Fourth Amendment,

even though the entry itself is lawful and the fruits of the

search are not subject to suppression.” Ibid. (emphasis

added).°

Because the Court in Ramirez found that the officers in

entering the premises had acted reasonably in breaking the

garage window, the Court had no occasion to determine

whether, if the officers had violated the Fourth Amendment

in breaking the windows, the guns seized pursuant to the war-

rant should have been suppressed. The Court indicated, how-

ever, that suppression would not automatically follow as a

result of such a Fourth Amendment violation, but rather

would be warranted only if “there was sufficient causal rela-

Petitioner argues (Pet. Br. 14) that, in making the observation that prop-

erty destruction during the execution of a search warrant may violate the

Fourth Amendment “even though the entry itself is lawful and the fruits of the

search are not subject to suppression,” the Ramirez Court was making a

distinction, for purposes of the exclusionary rule, between unreasonable police

conduct during the execution of a warrant and unreasonable police conduct

while obtaining entry to execute the warrant. He suggests that if the police

obtain entry in an unreasonable manner, everything seized during the sub-

sequent search is subject to exclusion. But that reading of Ramirez is not

sustainable. The point the Court was making was that if the police have a law-

ful right to enter—because they have a search warrant—evidence seized pur-

suant to the warrant is not subject to exclusion even though the police damage

more property than was reasonably necessary in order to effectuate the entry

and conduct the search. After all, the destruction of property at issue in

18

tionship between the breaking of the window and the discov-

ery of the guns.” 523 U.S. at 72 n.3. Cf. United States v.

Folks, 236 F.3d 384 (7th Cir.) (holding that regardless of rea-

sonableness of using a distraction (flash-bang) device in con-

nection with entry and search of residence, evidence was ad-

missible because it inevitably would have been discovered

during course of warrant-authorized search), cert. denied, 534

U.S. 830 (2001).

Similarly, in Wilson v. Layne, 526 U.S. 603 (1999),

homeowners sued federal officers pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), and state officers under 42 U.S.C. 1983, on

the ground that the homeowners’ Fourth Amendment rights

were violated because police officers executing an arrest war-

rant at their home invited the media to accompany them. The

Court held that such a “media ride-along” violated the Fourth

Amendment but that the officers were entitled to the defense

of qualified immunity because the law prohibiting such con-

duct was not clearly established at the time the search took

place. In a footnote, the Court observed:

Even though such actions might violate the Fourth

Amendment, if the police are lawfully present, the viola-

tion of the Fourth Amendment is the presence of the

media and not the presence of the police in the home.

We have no occasion here to decide whether the

exclusionary rule would apply to any evidence discov-

ered or developed by the media representatives.

526 U.S. at 614 n.2 (emphasis added). Implicit in this lan-

guage is the recognition that evidence discovered by the police

during the course of the arrest would not be subject to exclu-

sion because there was nothing illegal about their presence in

the home and no impairment of the warrant; rather, only evi-

dence discovered or developed by the media would arguably

19

be subject to exclusion, because it was their presence that

violated the Fourth Amendment.’

In addition, the courts of appeals have consistently held

that items seized pursuant to a valid warrant are not to be

excluded from evidence merely because the officers conduct-

ing the search also seized items not specified in the warrant.

See, e.g., United States v. Sears, 411 F.3d 1124, 1131 (9th Cir.

2005) (“Our case law on searches that exceed the terms of

valid warrants also supports a remedy of partial suppression.

‘Ordinarily, only evidence that is obtuined in violation of a

warrant is suppressed.””) (citation omitted); accord United

States v. Hamie, 165 F.3d 80, 84 (1st Cir. 1999); United States

v. Jones, 31 F.3d 1304, 1314 (4th Cir. 1994); United States v.

Heldt, 668 F.2d 1238, 1259-1269 (D.C. Cir. 1981), cert. denied,

456 U.S. 926 (1982); United States v. Dunloy, 584 F.2d 6, 11

n.4 (2d Cir. 1978). And this Court has recognized the correct-

ness of those decisions. See Waller v. Georgia, 467 U.S. 39,

43-44 n.3 (1984) (noting that because all items unlawfully

seized during a warrant search were suppressed, “there is

certainly no requirement that lawfully seized evidence be

suppressed as well”).

The result should be no different when the only illegality

that occurs during the execution of the warrant is the police’s

failure to wait a few additional moments after knocking and

announcing before entering the premises. When such a pre-

mature entry is the relevant Fourth Amendment violation, the

remedy must respond to the defect in the manner of entry,

and suppression only makes sense to the extent that evidence

is acquired as a direct consequence of the prematurity of

entry—for example, an utterance by a suspect made as police

At least one court has interpreted the footnote in this fashion. See United

States v. Hendrixson, 234 F 3d 494, 496 (11th Cir. 2000) (relying on Wilsun to

hold that presence of media during execution of search warrant violated Fourth

Amendment, but that evidence discovered by police was not subject to

suppression), cert. denied, 534 U.S. 955 and 956 (2001).

20

enter but before they announce their identity that might not

have been obtained by police had they announced their pres-

ence, or excited utterances prompted by an unannounced,

premature, or forceful entry. The exclusionary rule does not,

however, require suppression of the evidence seized pursuant

to the warrant, because that evidence is not the fruit of the

relevant Fourth Amendment violation.

4. Petitioner’s Reliance On Cases Involving

Searches Incident To Warrantless And Unlawful

Arrests Is Misplaced

Petitioner mistakenly asserts (Pet. Br. 9-12) that this

Court’s decisions in Miller v. United States, 357 U.S. 301

(1958), and Sabbath v. United States, 391 U.S. 585 (1968),

control the instant inquiry and require the suppression of

evidence seized under a warrant following a knock-and-an-

nounce violation. In both of those cases, the police made

warrantless entries into the defendants’ homes in order to

arrest them, without first announcing their presence and pur-

pose, in violation of the federal knock-and-announce statute,

18 U.S.C. 3109." Searches made incident to those arrests

yielded contraband that was admitted into evidence at the

defendants’ trials. The Court held that the statutory viola-

tions rendered the arrests unlawful, requiring suppression of

the evidence seized incident to the arrests. Miller, 357 U.S.

at 313-314; Sabbath, 391 U.S. at 586.

® Section 3109 states: “The officer may break open any outer or inner door

or window of a house, or any part of a house, or anything therein, to execute a

search warrant, if, after notice of his authority and purpose, he is refused

admittance or when necessary to liberate himself or a person aiding him in the

execution of the warrant.” The Court has noted that read literally the statute

“prohibits nothing,” but assumed arguendo in Ramirez that “the statute

implicitly forbids some of what it does "ot expressly permit.” 523 U.S. at 72.

Likewise, although the statute refers ony to search warrants, its criteria have

been applied as well to the execution or arrest warrants. Sabbath, 391 U.S. at

588-589; Miller, 357 U.S. at 306; Wong Sun, 371 U.S. at 482-484.

21

As an initial matter, the Court’s decisions in Miller and

Sabbath were rendered at a time whe:: the Court assumed

that all federal violations of the law governing search and

seizure required the suppression of all evidence seized. Since

then, however, as explained above, see pp. 7-12, supra, the

Court has made clear that, because of the high costs of the

suppression of relevant and reliable evidence, the exciu-

sionary rule should be applied only to the extent necessary to

effectuate its purposes and only to the extent that seized evi-

dence logically constitutes a fruit of a particular violation.

Moreover, the analysis employed by the Court in later

cases demonstrates that a knock-and-announce violation, by

itself, does not render an otherwise valid arrest illegal. Miller

and Sabbath predated this Court’s decision in Payton, supra,

that a warrantless entry into a defendant’s home to arrest him

violated the Fourth Amendment. Rather, at the time Miller

and Sabbath were decided, as the Court in Miller noted, the

lawfulness of a warrantless arrest was governed by local law.

In Miller, the local law governing warrantless arrests mir-

rored the requirements set forth in the federal knock-and-

announce statute, 18 U.S.C. 3109; the search by federal offi-

cers in Sabbath was directly governed by 18 U.S.C. 3109.

Because the Court found that the arrests in both cases did not

comply with those requirements, it held that the warrantless

arrests were illegal. After Payton, however, it is clear that if

the police have a warrant, they may make a valid in-home

arrest. A failure to comply with the knock-and-announce rule

in that context would render unlawful only the manner of ef-

fecting entry; it would not render unlawful the arrest itself.

In any event, under contemporary doctrine as applied to

the facts in Miller and Sabbath, the exclusion of evidence in

those cases is consistent with the governing principle that the

exclusionary rule should be applied only if the seized evidence

constitutes a fruit of a particular violation. Because the offi-

cers in both Miller and Sabbath had no search warrant, the

22

government sought to admit the evidence in question pursu-

ant to the search-incident-to-arrest doctrine. But, for evi-

dence to be admissible under that doctrine, it “must be the

product of a search incident to a lawful arrest.” Ker v. Cali-

fornia, 374 U.S. 23, 34 (1963) (emphasis added). Because the

arrests in both Miller and Sabbath were illegal—under cur-

rent law, because of the lack of a warrant—the suppressed

evidence could plainly be said to be the fruit or product of

those unlawful arrests.”

The same, however, cannot be said of evidence seized

pursuant to a valid search warrant following a failure to com-

ply with the knock-and-announce requirement. In that situa-

tion, the government is not seeking to introduce the evidence

under a search-incident-to-arrest rationale, but as evidence

seized pursuant to a valid warrant. The evidence is thus the

fruit, not of an illegal arrest, but of a warrant authorizing its

seizure.

B. The Court Should Not Abandon The Fundamental Re-

quirement Of Causation In Order To Increase Deter-

rence Of Knock-And-Announce Violations

Petitioner contends (Pet. Br. 34-42) that, notwithstand-

ing the well-established limitations on the exclusionary rule

discussed above, suppression is necessary in this context in

This Court’s decision in Ker, which also pre-dates Payton, is to the same

effect. There, the Court upheld the admission of evidence seized by state

officers following the warrantless arrests of the defendants inside their home.

As in Miller and Sabbath, the admissibility of the evidence depended on

whether it was the “product of a search incident to a lawful arrest, since the

officers had no search warrant.” As in Miller and Sabbath, the plurality in Ker

looked to state law to determine the lawfulness of the warrantless arrests. 374

U.S. at 37-38. Because California's statute permitted officers to enter a home

without notice when exigent circumstances were present, and the plurality

found such exigent circumstances were present in that case, it found the

arrests to be lawful under both California law and reasonable under Fourth

Amendment standards. Accordingly, the searches were lawful because they

were incident to lawful arrests. /d. at 38-43.

23

order to deter police from violating the knock-and-announce

rule. According to petitioner, absent the remedy of suppres-

sion, police officers would routinely violate the knock-and-

announce rule with impunity. Petitioner is mistaken.

1. Petitioner’s premise—that knock-and-announce viola-

tions will never lead to the exclusion of evidence—is flawed:

suppression remains available under settled remedial princi-

ples where the discovery of evidence is the product of the

prematurity of the entry. For example, if the police enter

without announcing their identity and purpose, someone in-

side might make an incriminating statement that he would not

have made had he known that it was the police entering his

home. Similarly, an immediate forcible entry might startle an

incriminating statement from an occupant. See Marts, 986

F.2d at 1222 (Fagg, J., dissenting) (In the absence of an

exclusionary remedy, police officers still have an incentive to

comply with the knock-and-announce rule because they “know

that any evidence seized as a direct result of the entry may be

suppressed. * * * [O}fficers armed with a search warrant

would ~~ ‘oolhardy to enter early in violation of [the knock-

and-announce rule] because they have no way of knowing

what they will see, hear, or learn when they enter.”); accord

People v. Murphy, 13 Cal. Rptr. 3d 269, 298-299 (Ct. App.

2004) (Benke, Acting P.J., dissenting) (noting situations in

which evidence could be fruit of premature entry), review

granted, 16 Cal. Rptr. 3d 330 (2004).

Petitioner’s argument that absent the remedy of sup-

pression the police will routinely ignore the knock-and-an-

nounce rule also rests on the flawed assumption that the po-

lice will deliberately violate this Court’s decisions interpreting

the Constitution. That assumption of bad faith is unwar-

ranted, particularly in light of the practicalities of the situa-

tion. When police arrive at a residence to execute a search

warrant, the magistrate has already authorized the seizure of

th< items named in the warrant. Where the police have no

24

reason to fear that anyone inside will respond with violence,

the destruction of evidence, or an escape attempt, the police

have ample incentives to announce their identity and purpose

and wait for an occupant to come to the door to admit them:

after all, an unannounced entry runs the very real risk that

the occupants will take violent defensive action based on the

mistaken assumption that the entering parties are criminal

intruders. Indeed, this is one of the principal interests fur-

thered by the knock-and-announce rule. See Sabbath, 391

U.S. at 589; Miller, 357 U.S. at 313 n.12.

Moreover, expansive application of the exclusionary rule

in this context would risk overdeterrence. Underlying most

failures to comply with the knock-and-announce rule is the

officers’ concern that substantial delay after announcement

would endanger their safety or enable the suspects to destroy

evidence or escape. See Kemal Alexander Mericli, The Appre-

hension of Peril Exception to the Knock and Announce

Rule—Part I, 16 Search and Seizure L. Rep. 129, 129-130

(July 1989). Ensuring officer safety and preserving the very

evidence whose seizure the warrant authorizes are plainly

important and wholly legitimate law enforcement objectives.

Dispensing with the requirement of causation and suppress-

ing all the evidence found in the warrant-authorized search

whenever officers’ on-the-spot judgments miscalculate the

exigencies of the situation might induce police officers to be

unduly cautious in assessing how best to execute the warrant,

at the possible expense of their safety and the preservation of

the evidence to be seized under the warrant. See Gates, 462

U.S. at 258 (“It would be surprising if the suppression of evi-

dence garnered in geod faith, but by means later found to

violate the Fourth Amendment, did not deter legitimate as

well as unlawful police activities. To the extent the

[exclusionary] rule operates to discourage police from reason-

able and proper investigative actions, it hinders the solution

25

and even the prevention of crime.”) (White, J., concurring in

the judgment).

2. It is true that this Court has concluded that criminal

remedies are inadequate as the sole means of safeguarding

Fourth Amendment requirements. See Mapp, 367 U.S. at

651-653. Nevertheless, it is not irrelevant that, in addition to

criminal remedies, judicial remedies for constitutional viola-

tions may be available through claims under 42 U.S.C. 1983

and the doctrine of Bivens, 403 U.S. at 397. See Segura, 468

U.S. at 812; see also Correctional Servs. Corp. v. Malesko, 534

U.S. 61, 70 (2001) (“The purpose of Bivens is to deter individ-

ual federal officers from committing constitutional violations”

and “the threat of litigation and liability will adequately deter

federal officers for Bivens purposes no matter that they may

enjoy qualified immunity.”); Langford, 314 F.3d at 894-895;

United States v. Sutton, 336 F.3d 550, 552-553 (7th Cir. 2003).

There are also non-judicial remedies that will continue to de-

ter law enforcement officers from violating the knock-and-

announce rule, such as the possibility of departmental disci-

pline. See Nix, 467 U.S. at 446 (“Significant disincentives to

obtaining evidence illegally—including the possibility of de-

partmental discipline and civil liability—also lessen the !ikeli-

hood that the ultimate or inevitable discovery exception will

promote police misconduct.”) (citing Bivens, 403 U.S. at 397);

United States v. Payner, 447 U.S. 727, 733-734 n.5 (1980) (re-

fusing to assume that “lawless conduct, if brought to the at-

tention of responsible officials, would not be dealt with appro-

priately” and concluding that “[t]o require in addition (to gov-

ernment discipline] the suppression of highly probative evi-

dence * * * would penalize society unnecessarily”).

But even if petitioner were correct about the role off the

exclusionary rule in deterring knock-and-announce viohations,

that would not justify departing from the universal require-

ment of causation. This Court has never placedi deterrence

concerns above all others in administering the exclusionary

26

rule, but has instead balanced the rule’s costs in a given situa-

tion against its deterrent effect. See Payner, 447 U.S. at 734.

That approach has left some violations in certain instances

undeterred. Thus, violations of the constitutional rights of

one person that produce useful evidence only against other

persons fall outside the scope of the rule, even though expan-

sion of the exclusionary remedy to reach such violations could

have additional deterrent effect. Alderman v. United States,

394 U.S. 165, 171-176 (1969); Rakas v. Illinois, 439 U.S. 128,

133-134 (1978); United States v. Salvucci, 448 U.S. 83, 95

(1980). Likewise, constitutional violations that produce evi-

dence that independently is, or inevitably would have been,

discovered anyway should not, the Court has held, result in

the exclusion of that evidence. See Murray, 487 U.S. at 536-

541; Nix, 467 U.S. at 444; see also id. at 452, 456-457 (Stevens,

J., concurring in the judgment); id. at 459 (Brennan, J., dis-

senting). And the Court has applied the independent-source

doctrine over the objection of dissenters that it would provide

“an affirmative incentive to engage in unconstitutional viola-

tions of the privacy of the home.” Segura, 468 U.S. at 817

(Stevens, J., dissenting); see Murray, 487 U.S. at 551 (Mar-

shall, J., dissenting) (independent-source rule provides “an

intolerable incentive for warrantless searches”). Indeed, it

could be argued that officers who have initiated the process

of obtaining a warrant based on existing information have no

incentive to refrain from an immediate warrantless entry of

the premises to be searched: if the warrant issues, the evi-

dence would be admitted under the independent-source doc-

trine. Yet the Court’s independent-source jurisprudence re-

jects this line of argument. See Murray, 487 U.S. at 539-540.

The same reasoning applies with particular force where

the violation does not relate to the authority of the officers to

conduct the search, but rather only to the manner in which

they executed it. When the illegality relates to the authority

of the police to search for and seize particular evidence, there

27

is a direct connection between the exclusionary rule, which

denies the government the opportunity to exploit the inappro-

priately seized evidence against a defendant in a criminal

trial, and the constitutional violation itself—the right of the

defendant to keep his personal items secure from precisely

such government search and seizure. But where, as here, the

illegality relates only to the manner of executing a lawful

warrant and there is no doubt as to the government’s author-

ity to seize and use the evidence in question, there is a poor fit

between the remedy of suppression and the interests pro-

tected by the right violated. The knock-and-announce rule

does not protect an individual from having the government

search for and seize personal items that are covered by a valid

warrant. It protects only interests in the way in which entry

is achieved to conduct the search and seizure. There is there-

fore a logical disconnect between the nature of the violation

and the extent of suppression sought. Suppression of evi-

dence covered by a valid warrant because of a knock-and-an-

nounce violation makes no more sense than remedying a tech-

nica] defect in an overbroad warrant by forcing the officers to

pay for a door broken down when exigent circumstances justi-

fied the use of force. There are distinct Fourth Amendment

interests and violations, and a suppression remedy that is

appropriate when the underlying search is defective is dispro-

portionate when the only Fourth Amendment problem is in

the manner of entry. That disproportionality argues strongly

against imposing on society “the considerable harm that

would flow from indiscriminate application of an exclusionary

rule.” Payner, 447 U.S. at 734."

" Petitioner suggests (Pet. Br. 40-42) that application of the inevitable dis-

covery exception in this context would hinder development of Fourth Amend-

ment law because courts generally would have no occasion to decide whether

particular police conduct violated the knock-and announce rule. The Court in

Leon addressed a similar concern about application of the good-faith exception

to the exclusionary rule by noting that “[t}here is no need for courts to adopt

the inflexible practice of always deciding whether the officers’ conduct mani-

28

C. Suppression Is A Disproportionately Severe Remedy

On The Facts Of This Case

Exclusion of all the evidence seized pursuant to the war-

rant would be an especially harsh remedy given the nature of

the violation in this case. The officers loudly announced their

ideutity and their purpose before entering. They accom-

plished the entry by turning the knob and opening the door,

causing no damage to any of petitioner’s property. Plainly,

then, the manner in which they entered fully protected two of

the interests furthered by the knock-and-announce rule: safe-

guarding law enforcement officers from being mistaken as

unlawful intruders, thus lessening the potential for violence,

and avoiding needless property damage.

The knock-and-announce rule also serves the purpose of

giving occupants the opportunity to prepare themselves for

the entry. As the Court observed in Richards v. Wisconsin,

520 U.S. at 393 n.5, “(t}he brief interlude between announce-

ment and entry with a warrant may be the opportunity that an

individual has to puil on clothes or get out of bed.” Here,

however, the immediate entry did not catch petitioner in an

intimate or compromising moment. Rather, the officers im-

mediately saw petitioner as they entered the house, sitting in

a living room chair. Accordingly, given that the warrant au-

thorized the far greater invasion of petitioner’s privacy, the

invasion into petitioner’s privacy occasioned by the immediate

entry in this case was minimal. See United States v.

Espinoza, 256 F.3d 718, 725 (7th Cir. 2001) (“(T]he exclu-

sionary rule should be limited only to those instances where

fested objective good faith before turning to the question whether the Fourth

Amendment has been violated.” 468 U.S. at 924. Rather, “{i}f the resolution of

a particular Fourth Amendment question is necessary to guide future action by

law enforcement officers and magistrates, nothing will prevent reviewing

courts from deciding that question before turning to the good-faith issue.” /d.

at 925. Nothing would prohibit the courts from exercising a similar discretion

in knock-and-announce cases.

29

the constitutional violation has caused actual harm to the in-

terest * * * that the rights protect.”) (internal quotation

marks omitted), cert. denied, 534 U.S. 1105 (2002); People v.

Murphy, 13 Cal. Rptr. 3d at 296 (Benke, Acting P.J., dissent-

ing) (“[T)he right of privacy in this context is a limited one.

In every announcement case the officers have the right to

enter. Admittance may not be refused. As we use the term

‘privacy’ in such cases, the right is less ethereal and more

practical, i.e., allowing occupants to get out of bed or get

dressed and thus see who is at the door.”).

Where, as here, officers with a valid warrant have an-

nounced their presence and purpose, and the knock-and-an-

nounce violation consists solely of their having entered the

residence a few seconds early, society’s vital interest in com-

bating crime should not be sacrificed by application of the

exclusionary rule. As the Court observed in Stone v. Powell:

“The disparity in particular cases between the error commit-

ted by the police officer and the windfall afforded a guilty

defendant by application of the [exclusionary] rule is contrary

to the idea of proportionality that is essential to the concept

of justice.” 428 U.S. 465, 490 (1976).

30

CONCLUSION

The judgment of the Michigan Supreme Court should be

affirmed.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

ALICE S. FISHER

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

DAVID B. SALMONS

Assistant to the Solicitor

General

DEBORAH WATSON

Attorney

OCTOBER 2005

Supreme Court, US.

FILED

G) AUG 29 2005 :

No. 04-1360 OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

BOOKER T. HUDSON, JR.,

Petitioner,

Vv.

STATE OF MICHIGAN,

Respondent.

On Petition For A Writ Of Certiorari To The

Court Of Appeals Of Michigan

BRIEF FOR THE CATO INSTITUTE AND NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

TIMOTHY LYNCH TRACEY MACLIN

MARK K. MOLLER (Counsel of Record)

THE CATO INSTITUTE Boston University School

1000 Massachusetts Ave., N.W. of Law

Washington, D.C. 20001 765 Commonwealth Ave.

(202) 842-0200 Boston, MA 02215

MALIA N. BRINK

JOSHUA L. DRATEL

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1150 18th St., N.W.

Suite 950

Washington, D.C. 20036

(202) 872-8600

Counsel for Amici Curiae

WILSON-EPES PRINTING CO., INC. - (202) 788-0096 - WASHINGTON, D. C. 20001

QUESTION PRESENTED

Does the inevitable discovery doctrine create a per se

exception to the exclusionary rule for evidence seized after a

Fourth Amendment “knock and announce” violation, as the

Seventh Circuit and the Michigan Supreme Court have held,

or is evidence subject to suppression after such violations, as

the Sixth and Eighth Circuits, the Arkansas Supreme Court,

and the Maryland Court of Appeals have held?

TABLE OF CONTENTS

Page

Te Ge FFTs Ce sectnrsccessctcnsicesnsececesessncnves iv

re i TR isiniceibiteieicécnitimniceiscnenincecnciiiinniien |

STATEMENT OF THE CASE ......ccccsccccecsesessesssecenesoees

SUMMARY OF ARGUMENT...............cccecceeseeeeeeeteees 4

I. ANNOUNCEMENT IS A REQUISITE ELE-

MENT IN DETERMINING THE’ REA-

SONABLENESS OF A POLICE ENTRY AND

SUBSEQUENT SEARCH AND SEIZURE IN

Py PRIVATE 0 ovsccecessstscesencissccsicesssnrtees 8

Il. EXCLUSION IS THE PROPER REMEDY FOR

THE VIOLATION OF PETITIONER’S FOURTH

PIPTIFOETE WIDOT ED ivcincrccnssictinvsceccsensentsccteseses 11

A. Exclusion Is Necessary To Enforce The Fourth

IIE viinnrninsiniinetennnmmnnis ll

B. The Independent Source And Inevitable Dis-

covery Exceptions To The Exclusionary Rule

Are Inapplicable To Petitioner’s Case............... 17

1. The Independent Source And Inevitable

Discovery Exceptions Forbid The Admis-

sion Of Evidence Derived From A Con-

I Pe iecinticdtiindisteicitnscicibecivciees 17

2. The Court Below Has Improperly Applied

The Inevitable Discovery Exception ........... 22

AIT cncsiecvntecitinctipdisihiiaennehesisatanebiduniimstnaiaiciiin 29

iV

TABLE OF AUTHORITIES

CASES Page

Arizona v. Hicks, 480 U.S. 321 (1987)... 12, 13

Brewer v. Williams, 430 U.S. 387 (1977)

IP NIND BR cincincticcscsuissclidiuiunstiinblibeeipumamidensinien 19

California v. Acevedo, 500 U.S. 565 (1991)......... 17

Chimel v. California, 395 U.S. 752 (1969) .........+. 16

Ker v. California, 374 U.S. 23 (1963)... 8, 9, 10

Knowles v. lowa, 525 U.S. 113 (1998)............0008. 16

Kyllo v. United States, 533 U.S. 27 (2001)............ 13

Mapp v. Ohio, 367 U.S. 643 (1961) ......ccceeceeees 12

Michigan v. Summers, 452 U.S. 692 (1981).......... 16

Miller v. United States, 357 U.S. 301 (1958)........ 8

Minnesota v. Dickerson, 508 U.S. 366 (1993) ...... 17

Murray v. United States, 487 U.S. 533 (1988)...... passim

Nix v. Williams, 467 US. 431 (1984)

CAPPED Si Basitscennccnvectesiersininnnseiuibeduniiedtansadasitine passim

Payton v. New York, 445 U.S. 573 (1980)............. 15, 16

People v. Stevens, 597 N.W.2d 53 (Mich. 1999)... passim

People v. Vasquez, 602 N.W.2d 376 (Mich.

ei ccncsscsennedioteindasiercitiaedintcksesiipintanniniaansumebiadibenie 3

Richards v. Wisconsin, 520 U.S. 385 (1997)......... 8

Sabbath v. United States, 391 U.S. 585 (1968)..... 8

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

Silverthorne Lumber Co. v. United States, 25)

SAFE IE cvccnctcaciniasenipaictuatatntiaihtniiintsiciinbaiaadatas 6, 7,17

State v. Davolt, 84 P.3d 456 (Ariz. 2004).............. 25

State v. Hall, 115 P.3d 908 (Or. 2005).................4. 6

Tennessee v. Garner, 471 U.S. 1 (1985) ............... 10

Terry v. Ohio, 392 U.S. 1 (1968)...........:cecccsesecees 16

United States v. Banks, 540 U.S. 31 (2003) .......... 8, 12

United States v. Calandra, 414 U.S. 338 (1974)... 13

United States v. Chadwick, 433 U.S. 1 (1977)..12, 14, 15

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

Weeks v. United States, 232 U.S. 383 (1914)........ 17

v

TABLE OF AUTHORITIES—Continued

Page

Wilson v. Arkansas, 514 U.S. 927 (1995).............. passim

Wilson v. Layne, 526 U.S. 603 (1999) .0.0......ccccceee 24

Wong Sun v. United States, 371 U.S. 471 (1963).. 19

CONSTITUTIONAL PROVISIONS

TTT LATA TT passim

CODES AND STATUTES

ae ene 8

OTHER AUTHORITIES

6 Wayne R_ LaFave, Search & Seizure (4th ed.

SII sinh sail bishtasanseheadinicmididatiintenindenicaptinewatagnieneats 25

Joint Appendix, Hudson v. Michigan (04-1360) .... passim

Kemal Alexander Mericli, The Apprehension of

Peril Exception to the Knock and Announce

Rule—Part I, 16 Search & Seizure L. Rep. 129

Loly Garcia Tor, Mandating Exclusion for

Violations of the Knock and Announce Rule, 83

RS EE eee 26

Mattias Luukkonen, Knock, Knock. What's In-

evitably There? An Analysis of the Applicability

of the Doctrine of Inevitable Discovery to Knock

and Announce Violations, 35 McGeorge L. Rev.

SEP EIITITTnicchinbiadtesmtissinensuiidennisastesteorescepeeesiantastes 25

Petitioner's Appendix, Hudson v. Michigan

STITT inciniiiatiicioabdapiapbesieiiniemnibeapetentemmmentndnasnee 2,3

Respondent’s Answer, Hudson v. Michigan

STITT nsasicnshanehdsunesimangibnanagngmdocntnmenensenegeemeanness 9

Stephen E. Hessler, Establishing Inevitability

Without Active Pursuit: Defining the Inevitable

Discovery Exception to the Fourth Amendment

Exclusionary Rule, 99 Mich. L. Rev. 238 (2000).. 29

vi

TABLE OF AUTHORITIES—C continued

Page

Timothy Lynch, /n Defense of the Exclusionary

Rule, 23 Harv. J.L. & Pub. Pol’y 711 (2000)... 6

Yale Kamisar et al., Modern Criminal

Procedure: Cases-Comments-Questions (1 \th

BRIEF FOR THE CATO INSTITUTE AND NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI'

The Cato Institute was established in 1977 as a non-

partisan public policy research foundation dedicated to ad-

vancing the principles of individual liberty, free markets, and

limited government. Cato’s Center for Constitutional Studies

was established in 1989 to restore the principles of limited

constitutional government. The Center publishes books and

studies, conducts conferences and forums, publishes the

annual Cato Supreme Court Review, and files amicus curiae

briefs with this Court. The instant case addresses an impor-

tant Fourth Amendment issue, and is thus of central concern

to the Cato Institute and its Center for Constitutional Studies.

The National Association of Criminal Defense Lawyers

(NACDL) is a nonprofit corporation founded in 1958 to

ensure justice and due process for persons accused of crime;

to foster integrity, independence, and expertise of the criminal

defense bar; and to promote the fair administration of

criminal justice. NACDL strives to defend the liberties

guaranteed by the Bill of Rights and therefore has an interest

in the important Fourth Amendment issues raised in this case.

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, counsel

for amici state that no counsel for a party authored this brief in whole or in

part. Amicus Cato Institute funded the preparation and submission of this

bricf with the financial support of a grant from the JEHT Foundation

Trust, a nonprofit charitable institution incorporated under the laws of the

State of New York that provides monetary assistance to organizations en-

gaged in criminal justice reform.

eee

ee,

2

STATEMENT OF THE CASE

On August 27, 1998, at approximately 3:35 p.m., several

Detroit police officers arrived at the home of Petitioner

Booker T. Hudson, Jr., to execute a search warrant for

weapons and narcotics. Officer Jamal Good testified that he

did not see or hear any activity in the home as he approached

the door. Although Good announced “Police, search war-

rant,” he did not knock on the door and did not wait for

anyone to open the door. J.A. 19-20. Good waited three to

five seconds before opening the door and entering “{rjeal

fast.” J.A. 19. After entering the home, Good saw Petitioner

seated in the living room. Good ordered Petitioner to remain

seated. After a sweep of the premises, Good returned to the

living room and conducted a protective frisk of Petitioner.

That search revealed five rocks of cocaine in Petitioner’s

pants pocket. J.A. 4-8.

Based on the evidence found in Petitioner’s pants and other

evidence obtained pursuant to the execution of the search

warrant, Petitioner was charged with possession of cocaine

with intent to deliver, possession of cocaine, and felony fire-

arm. At the suppression hearing, the prosecutor conceded

that the police entry into Petitioner’s home violated the

knock-and-announce requirement. Pet. App. 10. The trial

court granted Petitioner’s motion to suppress the evidence

found on his person and in his home. Respondent then

appealed to the Michigan Court of Appeals for peremptory

reversal of the trial court’s suppression order. Although Re-

spondent conceded that the police entry of Petitioner's home

“may have violated” the Fourth Amendment, J.A. 13, Re-

spondent argued exclusion was an impermissible remedy un-

der the Michigan Supreme Court’s ruling in People v.

Stevens, 597 N.W.2d 53 (Mich. 1999).

Stevens held that evidence unlawfully obtained pursuant to

a police violation of the knock-and-announce requirement is

not subject to the exclusionary rule, provided the police

3

possess a valid search warrant and conduct a search of proper

scope. Acknowledging that announcement is constitutionally

mandated by Wilson v. Arkansas, 514 U.S. 927 (1995), and

its progeny, Stevens explained that under this Court’s cases

“there has to be a causal relationship between the violation

and the seizing of the evidence to warrant the sanction of

suppression.” 597 N.W.2d at 60. Stevens concluded that the

inevitable discovery exception to the exclusionary rule was

applicable where police violate the Fourth Amendment’s

announcement requirement. According to the court, the “ex-

clusionary rule is not meant to put the prosecution in a worse

position than if the police officer’s improper conduct had not

occurred, but, rather it is to prevent the prosecutor from being

in a better position because of that conduct.” /d. at 61,

quoting Nix v. Williams, 467 U.S. 431, 443 (1984)

(hereinafter Williams 1/). Because the police in Stevens had a

valid warrant, the Michigan Supreme Court opined that “the

evidence would have been discovered despite any police mis-

conduct” and that there are state and federal “disincentives to

deter police misconduct.” /d. at 62.

The Michigan Court of Appeals granted Respondent's

motion for peremptory reversal of the trial court’s order

suppressing the evidence found on Petitioner and in his home.

That court ruled that Stevens and People v. Vasquez, 602

N.W.2d 376 (Mich. 1999) (per curiam) (reaffirming Stevens),

did not authorize exclusion as an appropriate remedy for a

knock-and-announce violation. Pet. App. 4. Petitioner filed

an application for leave to appeal to the Michigan Supreme

Court, but that application was denied. The Michigan

Supreme Court reaffirmed its earlier holdings in Stevens and

Vasquez that exclusion is not a proper remedy for a violation

of the Fourth Amendment’s announcement rule. Pet. App. 5.

Petitioner was then convicted in the trial court of pos-

session of less than 25 grams of cocaine, based on the

evidence discovered in his pants; he was acquitted of felony

4

firearm and possession of cocaine with intent to deliver.

Petitioner was sentenced to 18 months probation. J.A. 21-24.

Petitioner again appealed to the Michigan Court of Appeals,

but that court affirmed his conviction based on the holdings in

Stevens and Vasquez. Petitioner’s application to the Mich-

igan Supreme Court for leave to appeal the judgment of the

Court of Appeals was denied. This Court granted certiorari to

consider whether the inevitable discovery doctrine creates a

per se exception to the exclusionary rule for evidence seized

after a Fourth Amendment knock-and-announce violation.

SUMMARY OF ARGUMENT

This case presents in unmistakable terms the question of

constitutional remedy undecided in Wilson v. Arkansas and

its progeny: whether and in what circumstances it is appro-

priate to exclude evidence seized in violation of the Fourth

Amendment’s knock-and-announcement requirement. The

Michigan Supreme Court has held that the inevitable dis-

covery doctrine authorizes a per se exception to the exclu-

sionary rule for evidence illegally seized after a Fourth

Amendment announcement violation. That judgment ts in-

consistent with the logic of this Court’s knock-and-announce

and exclusionary rule decisions.

According to the Michigan court’s analysis, the violation

of the announcement requirement “was independent of” the

search and seizuic that occurred in Petitioner’s home.

Stevens, 597 N.W.2d at 64. This analysis ignores Wilson’s

holding that “the method of an officer’s entry into a dwelling

[is] among the factors to be considered in assessing the

reasonableness of a search or seizure.” Wilson, 514 U.S. at

934. Because the police violated the announcement require-

ment, as conceded by Respondent below, the search and

seizure inside Petitioner's home was unconstitutional under

the Fourth Amendment. Thus, the courts below were wrong

to suggest that the search of Petitioner and his home was

causally disconnected from the announcement violation. The

5

correct analysis is provided by Wilson: the illegal entry into

Petitioner's home unconstitutionally tainted the subsequent

search and seizure that occurred inside.

Because Wilson and its progeny indisputably establish that

the intrusion into and search of Petitioner’s person and home

was unconstitutional, the question here is whether the

exclusionary rule is the proper remedy for an announcement

violation. The argument against exclusion—at its core—is

that Petitioner would find himself in the same position

(because the evidence would have been found anyway) if the

search had been properly announced. There are three reasons

why this argument proves too much.

First, unless illegally obtained evidence is excluded, there

will be no effective deterrent to future announcement vio-

lations in ordinary cases like Petitioner's. Common sense

teaches that if exclusion is unavailable as a remedy for an

announcement violation, officers will not comply with Wilson

and its progeny. Affirming the judgment below would mean

the evisceration—as a practical matter—of the constitutional

protection announced in Wilson.

Second, the Michigan Supreme Court’s analysis misunder-

stands the purpose of the exclusionary rule. Even assuming

that the evidence found in Petitioner’s pants would have been

discovered had the police complied with the announcement

requirement, that fact is irrelevant when determining whether

exclusion is appropriate for a Fourth Amendment violation.

This Court recognizes that the purpose of exclusion is to deter

future violations of the Fourth Amendment; it has, moreover,

repeatedly explained that the “wrong condemned by the

[Fourth] Amendment is ‘fully accomplished’ by the unlawful

search or seizure itself, and the exclusionary rule is neither

intended nor able to ‘cure the invasion of the defendant’s

right which he has already suffered.”” United States v. Leon,

468 U.S. 897, 906 (1984) (citations omitted). If when

determining the applicability of the exclusionary rule in a