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Divided High Court Strengthens Police Searches

ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick with Madeleine Brand.

Coming up, we test drive our summer series: Just Where Can You Get with 100 Bucks of Gas?

MADELEINE BRAND, host:

First though, police now don't have to knock before entering private homes. The Supreme Court issued that decision in a narrow four to five vote. Joining us to discuss the case is Dahlia Lithwick, she's legal analyst for the online magazine Slate and for us here at DAY TO DAY.

And Dahlia, this case is called Hudson v. Michigan. Tell us about it, and what was at issue here.

Ms. DAHLIA LITHWICK (Slate Magazine): Well, we had the poor defendant who was sitting in his Detroit apartment in the front room, casually minding his own business when suddenly - after a apparently three-second knock - seven police officers burst in, found him there, found five rocks of cocaine on his - of crack I'm sorry - on his person, and other drug paraphernalia around the apartment.

The question then became because they did not knock prior to - and announce themselves - prior to coming in, whether they had violated this age-old quote "knock and announce" rule, whereby the police - even when they have a valid search warrant are supposed to sort of let you know that they're coming. And the police in this case acknowledge that they didn't really give him time.

There's a constant tension in the knock and announce doctrine between the sort of police need to get in there before you flush the evidence, and your right to know that the police are coming in. So it issue really was whether this evidence should be suppressed, because the police did not, in fact, follow the knock and announce rule. That was the issue for the court today.

BRAND: And they decided that no, indeed, they don't have to knock? They can just rush on in?

Ms. LITHWICK: Well, yeah. Essentially, what they said was not that they don't have to knock. There still is a knock and announce rule. But the question was what is the remedy? In effect, is this evidence all suppressed, or can it still be used? And Justice Scalia, writing for a five/four court - a very, very narrowly, by the way, five/four court, in some places there were only three other people who signed off on his opinion - but Justice Scalia essentially said I'm going to hang my hat on something called the inevitable discovery doctrine. And what that says is, and you probably know this from NYPD Blue, Madeleine, that if the cops were going to find it anyway, if they were going to execute the warrant and find all that stuff anyway, then you don't have to suppress everything. And so what he said was I'm going to sort of say this evidence could all come in otherwise, quote, "Every single bad guy would have a sort of get out of jail free card and that's not acceptable." So whether in fact there is some sort of other remedy for when the police, in fact, don't knock and announce, we don't know, that remains to be seen. But Scalia says the correct remedy here is not to suppress all that evidence.

BRAND: So, inevitably, the fallout will be that police don't have to knock anymore, right?

Ms. LITHWICK: One would certainly wonder if the evidence is not going to be suppressed, and you're not on the hook for anything why the police would ever knock and announce again. It gives the guy a chance to - as I said - flush the drugs. And it's much more dangerous for the police to announce their presence. They don't want to get shot, so why any cop would ever announce his presence before busting in does remain to be seen.

BRAND: And Dahlia, what were the arguments against it?

Ms. LITHWICK: Well, I think the argument against it is preserving this age-old doctrine of the police don't get to just knock down your door. They have to knock, they have to announce themselves. You have that sort of tiny shred of privacy to which you're entitled, and if there is no remedy, if there's nothing, there's no consequence for the police to just come in and search your home, then there's absolutely no way to prevent them from doing this.

BRAND: This was a five to four decision. And the newest justice, Samuel Alito, broke the tie. What does that tell you about how future cases will be decided?

Ms. LITHWICK: Even more important than that, Madeleine, this case was re-argued. In other words, the court heard it when Sandra Day O'Connor was on the bench. They heard it again after O'Connor was replaced by Alito. And certainly, some court watchers thought that O'Connor would have gone the other way. In other words, she would have voted with the far more liberal members to preserve this knock and announce rule and to really not lay too much importance on the inevitable discovery doctrine. So it's not simply that Alito is the tiebreaker, it really does show the absolute sharp jag to the sort of political right that the court may take when Alito replaces O'Connor as that swing vote.

BRAND: Dahlia, this isn't the only case that we're waiting on for the court to decide as the end of the term nears. What other big cases are we waiting for?

Ms. LITHWICK: I think the two really big ones that everybody is holding their breath about are one, the Texas redistricting case that is going to really test this question of whether there can ever be a political gerrymander, a redistricting that violates the constitution - that violates this principal of one person, one vote.

The other big one - and probably the biggest one that's going to really tell us about the sort of ongoing stamp of the new Roberts court - is the Hamdam decision. The decision that is testing the constitutionality of President Bush's military tribunal system that he's set up for the people that are at Guantanamo Bay.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate, and for us here at DAY TO DAY. Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine. Transcript provided by NPR, Copyright NPR.