Radley Balco (And Most Libertarians) Are Wrong On Hudson

I just now had the chance to read through the Supreme Court's recent decision in Hudson v. Michigan, a decision which has faced numerous criticisms throughout the libertarian blogosphere. Most notably, the lonely libertarian's favorite blog, The Agitator, has been exceptionally harsh. You can read what Radley Balco had to say, here, here,
here, and
here.

The issue in Hudson was simple- does a violation of the knock and announce rule implicate the 4th Amendment's exclusionary rule. And the Court, in an opinion by Justice Scalia, said no. Delving in to search and seizure law, there are multitudes of occasions in which the exclusionary rule does not apply- for instance, an improper warrant executed by the police in good faith, the hot pursuit exception, and on and on. The real issue then, is whether or not the failure of police to announce themselves before executing a warrant amounts to an unreasonable search and seizure.

Common sense tells us no, such a failure is not unreasonable, especially given the difficulty of determining how long police must wait after they announce themselves. In Hudson, the officers found the exact evidence for which the warrant was granted. A proper application of the knock and announce rule may have allowed Hudson to conceal that evidence from police in the first place. And regardless of that fact, it makes little sense to exclude evidence obtained from a properly granted warrant because the police failed to wait 15 more seconds. That's not really what the 4th Amendment is all about.

Now policy wise, I think no-knock searches are a terrible idea, particularly when it comes to these drug raids. Radley Balco has done a tremendous job of cataloging the mistakes and abuses which have resulted from what he's called the "militarization of Mayberry."

But as common sense (and the Supreme Court) has told us, there are some unique circumstances where no-knock raids may be a necessity. The issue is not one of Constitutional law, but of police policy. No-knock raids may generally be a stupid idea, but we can't well have the Supreme Court legislate as to the specifics as when a situation does and does not require a no-knock raid.

The real issue here is that of police policy, an issue that has a potential democratic solution- we could pass laws to determine the rare circumstances no-knock raids are permissible. The other issue is that of the remedy when innocent people are killed or injured, or when innocent people have their property damaged during mistaken SWAT-team raids. In such circumstances, the exclusionary rule isn't relevant, and these are the sorts of people who invoke my sympathy. Those like Hudson, who want to escape a prison term because the police didn't wait 15 more seconds don't invoke my sympathy in the same way.

As I think Balco mentioned at some point in his blogging, Hudson was a not a good set of circumstances to make the case against no-knock raids. The problem is that the problems stemming from these raids are really not related to evidence, and the exclusionary rule, though it may be a remedy, is really just an evidentiary rule. The real issues of the over SWAT-ification of America are the war on drugs, and the human costs the war has placed on ordinary American citizens, and these are not the sorts of problems we can look for the Supreme Court to solve.