The Battle of Hudson Heights– A Commentary by Akhil Reed Amar
The Battle of Hudson Heights
A small case may portend big changes to the exclusionary rule.
Another front in the culture wars heated up last week as the proper scope of the exclusionary rule and the central purposes of the Fourth Amendment were debated anew by the Supreme Court in the case of Hudson v. Michigan.
The immediate battleground—the precise fact pattern at issue in Hudson—is but a speck on the vast map of American constitutional law. Yet given the precise location of this battleground and the particular tactics of the justices in struggling over it, Hudson may be seen one day as a decisive crossroads. Essentially, the judicial battle of Hudson Heights involved a fierce contest for high conceptual ground, and the victors have now secured a strong base for further action that could broadly reshape the lines of the exclusionary rule.
First the facts: The cops in Hudson had a search warrant authorizing them to enter a house and look for drugs and guns. They found both. But the way they entered the house was constitutionally improper. Instead of waiting a reasonable period (say, 20 seconds) after announcing their presence at the front door—as generally required under long-standing Anglo-American tradition and modern Fourth Amendment doctrine—the police simply announced themselves, opened the (unlocked) door, and began searching. They found lots of cocaine, later introduced as evidence to convict the homeowner of drug possession.
Led by Justice Stephen Breyer, four dissenters found this a textbook case for exclusion: The police violated the Fourth Amendment, so the drugs must be suppressed and the guilty man must go free. Next case.
Not so fast, said five justices on the other side, led by Justice Antonin Scalia. Although the Fourth Amendment was violated, this violation made absolutely no difference so far as the drugs were concerned. Had the cops properly waited an extra 20 seconds they still would have found the cocaine.
To this, Breyer responded with an ultrastrict version of coulda, woulda, shoulda. It is not enough, he said, that the government could have found the drugs in a lawful search. Generally, the government must in fact find the drugs in a perfectly valid search wholly independent of the tainted search.
But as the Scalia Five emphasized, the Hudson cops did in fact have a valid search warrant that authorized the successful drug search—even if the warrant didn't authorize the earlier overhasty entrance. Nothing in law or logic requires that judges must always lump together the improper entrance and the otherwise proper search, rather than treating these as two independent events. For example, if the warrant had authorized only a search of the house, and the cops instead searched both the house and a nearby barn, why should drugs found in the house be excluded just because the barn search was invalid? Why shouldn't only the stuff found in the barn be suppressed in court?
The Scalia Five also stressed that the Supreme Court's previous case law, which Breyer claimed was the source of his ultrastrict test, is actually a mixed bag of rules and exceptions. One exception to the exclusionary rule is called "inevitable discovery" and as its very label makes clear, the test is whether a piece of evidence "would have" inevitably come to light in a lawful search. Nor have previous court opinions consistently read this test in the superstrict way Breyer was now urging.
But Breyer was right to observe that, if aggressively applied, the "inevitable discovery" doctrine could outflank the exclusionary rule in a wide range of cases. With Hudson on the books, state and federal prosecutors should now try to find the Next Perfect Test Case, which would look something like this: The cops have very good reasons (what lawyers call "probable cause") to conduct a given search and thus the police could easily get a warrant from a judge. But they decline to get the warrant because they reasonably—though it turns out erroneously—believe that the facts fall into one of the umpteen categories for which the court has said that warrants are not required. Armed with probable cause and good faith (but no warrant), the cops search and find a smoking gun or a bloody knife—proof positive of a violent crime.
Similar cases have come before the court previously, and the justices have at times mindlessly suppressed the evidence. But none of the court's past cases has squarely addressed the strong argument of inevitable discovery (combined with police good faith). With Hudson now on the books clarifying the scope and logic of inevitable discovery, the government can argue in our Perfect Test Case as follows: "The cops could have easily gotten a warrant and surely would have done so, had they only better understood often-complex court doctrine. Because the cops acted in good faith and because the evidence would have been found if the cops had strictly complied with the Fourth Amendment—a warrant would inevitably have been issued, had it been sought—the case should be treated just like Hudson."
It's not guaranteed that a court majority would buy this argument in the Next Perfect Test Case. Justice Kennedy, while joining almost all of Scalia's Hudson opinion, wrote separately to insist that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt." Kennedy also took pains to note that in Hudson the drugs were discovered "because of a search pursuant to a lawful warrant"—which would not quite be true in the Next Perfect Test Case.
Yet Kennedy also embraced virtually all of Scalia's opinion, which vigorously cataloged various vices of the exclusionary rule and called for a tighter fit between right and remedy. One big problem with the exclusionary rule, Scalia argued, is that the rule often fits poorly with important Fourth Amendment values. If cops brutalize or humiliate citizens or destroy personal effects within a home—thereby violating core Fourth Amendment principles—there is no real link between these unreasonable intrusions on persons and property and the finding of evidence for use in a criminal case. Indeed, in many situations the cops may find no evidence at all (and they might not even be looking for evidence). If the exclusionary rule were the only remedial game in town, it would be open season on the innocent.
Of course, as Scalia and Kennedy made clear (joined by Justice Thomas and by the court's two newest members, Chief Justice Roberts and Justice Alito), the exclusionary rule is not the only—and in many cases, not the best—way to vindicate Fourth Amendment values. In fact—though Scalia did not stress this point—no Founding Father ever called for a Fourth Amendment exclusionary rule, and no court in America ever followed such a rule in the entire century after the Declaration of Independence. Instead, the framers believed that punitive-damage suits brought by aggrieved Americans against overbearing government searchers and seizers would properly protect Fourth Amendment values.
What Scalia did stress is that—in sharp contrast to the situation faced by the early Warren Court (which was the first to apply the exclusionary rule to ordinary state crimes)—today a wide range of civil rights laws and regimes offers a superior model for enforcing the Fourth Amendment via damage suits by innocent citizens and other devices rather than suppression motions by the guilty.
Hudson's facts illustrate the point nicely. Why, after all, does the Fourth Amendment generally require the cops to knock and wait for a few seconds? Not to give crooks a 20-second window to destroy evidence, but rather to give innocent citizens a 20-second chance to, say, put on a bathrobe. And this right would best be vindicated in a punitive-damage suit brought by, for example, an innocent women in her negligee who was surprised by overbearing cops, rather than by a drug dealer caught red-handed and seeking a get-out-of-jail-free card.
The Founders' Fourth Amendment, in short, was designed to protect the innocent; yet the later judge-made exclusionary rule perversely springs the guilty. While the New York Times has said that Scalia seemed to trivialize the Fourth Amendment knock-and-announce rule when he emphasized the bathrobe/negligee issue, Scalia was in fact describing part of the amendment's core—a right of privacy and personal dignity. It was largely this core value that led Scalia, writing for the court in 2001, to invalidate freewheeling use of high-tech thermal detection devices aimed at personal residences, since such James Bond-like ray guns would improperly allow the government to learn "at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider 'intimate.' "
This is hardly some personal obsession of Scalia's. The Fourth Amendment's framers had a remarkably similar view of the amendment's core rights and core remedies. According to one 1787 pamphlet, if a constable searching "for stolen goods, pulled down the clothes of a bed in which there was a woman and searched under her shift ... a trial by [civil] jury would be our safest resource, [and] heavy damages would at once punish the [offending constable] and deter others from committing the same."
Although none of the justices in Hudson quoted this remarkably apt passage from the Founding Fathers, it strongly supports the Hudson court's shift toward Fourth Amendment remedies that protect the innocent rather than reward the guilty. In the latest round of the culture wars, score one for Scalia.
Akhil Reed Amar, who clerked for then Judge (now Justice) Stephen Breyer in 1984-85, teaches constitutional law at Yale and is the author of America's Constitution: A Biography, winner of the 2006 ABA Silver Gavel Award.