# Amicus Curiae Brief — Hudson v. Michigan

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0088%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 547 U.S. 586

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0088%3A08. Public record. Not legal advice.