Federal Solutions for Inappropriate SWAT Raids

This is reason to believe that a decision made by the Supreme Court in 2006 may have contributed to the rise in inappropriate SWAT raids in recent years. 

The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures.  A judge needs to see sufficient evidence of probable cause in order to approve a search or arrest warrant, and warrants must be limited in scope. 

Since ancient times, law enforcement officers have been required to announce their presence and give residents the opportunity to open the door.  More recently, the use of "no-knock warrants" have been approved for situations where law enforcement can show a reasonable expectation that evidence might be destroyed or physical violence is likely.  

Starting in 1914, the federal exclusionary rule excluded evidence that was unlawfully obtained without a warrant from being used in court.

In 2006, the Supreme Court decided to hear the case of Booker Hudson, whose case was summarized in Justice Scalia's Opinion as follows: 

Police obtained a warrant authorizing a search for drugs and firearms at the home of petitioner Booker Hudson. They discovered both. Large quantities of drugs were found, including cocaine rocks in Hudson’s pocket. A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting. Hudson was charged under Michigan law with unlawful drug and firearm possession.

This case is before us only because of the method of entry into the house. When the police arrived to execute the warrant, they announced their presence, but waited only a short time—perhaps “three to five seconds,” App. 15—before turning the knob of the unlocked front door and entering Hudson’s home. Hudson moved to suppress all the inculpatory evidence, arguing that the premature entry violated his Fourth Amendment rights.

By a narrow 5 to 4 vote, the Justices ruled that "the social costs of applying the exclusionary rule to knock-and-announce violations are considerable" and that evidence needn't be suppressed in such cases.

Justice Breyer filed the following dissent with three other Justices:

In Wilson v. Arkansas, 514 U. S. 927 (1995) , a unanimous Court held that the Fourth Amendment normally requires law enforcement officers to knock and announce their presence before entering a dwelling. Today’s opinion holds that evidence seized from a home following a violation of this requirement need not be suppressed.

 As a result, the Court destroys the strongest legal incentive to comply with the Constitution’s knock-and-announce requirement. And the Court does so without significant support in precedent. At least I can find no such support in the many Fourth Amendment cases the Court has decided in the near century since it first set forth the exclusionary principle in Weeks v. United States, 232 U. S. 383 (1914) . See Appendix, infra.

Today’s opinion is thus doubly troubling. It represents a significant departure from the Court’s precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection.

The majority ruling was based heavily on the assumption that "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously".  If it can be shown that law enforcement is routinely violating the knock and announce rule, we hope that the Supreme Court can be convinced to look at this issue again.

Read Hudson v. Michigan opinions

Hear host Sheilah Kast discuss this issue with Law Professor David Gray
on NPR's Maryland Morning show on April 1, 2009 (10:41).