Home > Criminal Law, Criminal Procedure > Hudson v. Michigan: A Pattern of Botched Police Raids?

Hudson v. Michigan: A Pattern of Botched Police Raids?

In 2006, the Supreme Court decided Hudson v. Michigan, which involved a violation of the knock-and-announce requirement (this rule posits that absent exigent circumstances or advanced no-knock authority, police officers must announce their presence prior to executing a warrant).  Back in 1998, Detroit police officers acting pursuant to a valid search warrant arrived at defendant’s home to execute a search for drugs and firearms.  Upon arrival, the officers announced their presence and that they had a search warrant.  “Three to five seconds” later the officers entered the home and found both drugs and a loaded firearm.  Defendant was arrested and subsequently charged with cocaine possession with intent to deliver and possession of a firearm during the commission of a felony.

Defendant argued that because the brief wait time of three to five seconds rendered the entry premature, the knock-and-announce requirement was breached in violation of his Fourth Amendment rights.  Thus, defendant contended that all of the evidence obtained should be excluded under the exclusionary rule (the rule that excludes illegally seized evidence).  Defendant relied upon Wilson v. Arkansas (1995), which upheld common law principles that law enforcement personnel should knock and announce their presence prior to entering a residence.  Moreover, the Court also held that the knock-and-announce requirement is factored into the “reasonableness” inquiry under the Fourth Amendment (e.g. officer safety may permit officers to enter without first knocking and announcing).

Justice Scalia’s majority opinion in Hudson began by explaining that suppression/exclusion has always been the last resort and that determining whether suppression is required involves a balancing process.  The balance includes the benefits of deterrence of officer misconduct vs. the substantial social costs to society (e.g. criminals going free).  When deterrence outweighs the social costs, courts should exclude evidence obtained in violation of the knock-and-announce requirement.

The Justice then listed the three primary purposes for the requirement, which are 1) protection of human life because unannounced entry can result in a violent confrontation; 2) protection of property; and 3) protection of elements of privacy and dignity.  The requirement, however, “has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant.”  Thus, “[s]ince the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.”

In further elaboration, the majority opinion discussed the considerable costs to the courts that would arise if such violations required exclusion.  Such costs would include flooding the courts with litigation and officers hesitating before entering a residence because they are uncertain whether they have knocked and announced properly (which could result in destruction of evidence, escape, or an ambush).  More importantly, Justice Scalia explained that deterrence of officer misconduct would be minimal in these circumstances where a violation of the requirement results in “the prevention of evidence destruction and avoidance of life-threatening resistance.”  Alternatively, the Justice noted that civil suits and self-policing (i.e. internal review) deter many forms of officer misconduct.

Ultimately, the exclusionary rule was not applied to the evidence even though it was obtained in violation of the knock-and-announce requirement.  Justice Kennedy filed a concurrence where he stated that “[i]f a widespread pattern of [knock-and-announce] violations were shown . . . there would be reason for grave concern.”  The Justice then went on to note that even if there were a widespread pattern, implementing the exclusionary rule for knock-and-announce violations would result in “significant practical implications, adding to the lists of issues requiring resolution at” trial.  Such issues would include determining whether an officer waited “10 seconds or 20” before entering the premises.

The Court’s focus when dealing with the exclusionary rule normally rests primarily on what affect exclusion will have on deterrence of officer misconduct.  Generally, the Court will exclude illegally obtained evidence when it feels there is a strong need to force officers to change their behavior.  As the Court noted three years later in Herring v. U.S. (2009), “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”  A widespread pattern of violations and systemic negligence, although not identically phrased, seems to imply that a continuous practice of “violations” may become problematic.  The questions then become, how much of a pattern is required or how systemic must the negligence be?

In Herring, a warrant clerk told an officer that an outstanding warrant for defendant existed, however, the warrant had been recalled months earlier.  The clerks had not updated their database so the initial error went unnoticed.  Justice Ginsburg expressed her concern with this practice in her dissent.  The Justice explained that there was “no routine practice of checking the database for accuracy,” and the error at issue was not discovered until five months later.  In addition, Justice Ginsburg noted how amicus briefs “warn[ed] that law enforcement databases are insufficiently monitored and often out of date.“  The combination of the error at issue and the aforementioned warning was enough for the Justice, as well as Justices Stevens, Souter, and Breyer, to conclude there was a systemic pattern of misconduct that required exclusion as a means of deterring said conduct.  The majority, however, disagreed and thus allowed the evidence obtained under a U.S. v. Leon (1984) type of reasonable mistake in good faith exception.

Although Herring did not involve a knock-and-announce violation, it squarely dealt with the applicability of the exclusionary rule.  Thus, under Justice Kennedy’s Hudson concurrence, the majority’s language of “recurring or systemic negligence” may still be relevant when dealing with the knock-and-announce requirement.  In this context, negligence would seem to include officers entering the wrong premises unannounced, entering without waiting absent exigent circumstances (i.e. if officers wait, suspects will arm themselves, escape, or destroy evidence), entering a nonviolent suspect’s home after waiting a very short time, unnecessarily damaging property, and unnecessarily harming individuals.  Such examples of negligence have been documented and mapped out by the Cato Institute *1.

In 2006, the Cato Institute released an interactive map of flawed police raids all across the United States from 1985 to 2006 (and now 2010) in conjunction with Radley Balko’s paper entitled “Overkill: The Rise of Paramilitary Police Raids.” The map contains the following categories: death of an innocent, death or injury of a police officer, death of a nonviolent offender, raid on an innocent suspect, other examples of paramilitary police excess, and unnecessary raids on doctors and sick people.

The map includes 357 incidents of flawed police raids.  The top five states are: New York (40), California (39), Texas (31), Florida (26), and Virginia (16).  99 out of the 357 flawed raids involved either the death of an innocent, death or injury of a police officer, or death of a nonviolent offender.  The top five states with regards to raids that resulted in death are: Texas (13), California (12), Florida (10), New York (5), and Ohio (5).  180 out of the 357 flawed raids involved a raid on an innocent suspect.  The top five/six states in this category are: New York (31), California (16), Florida (12), Texas (11), North Carolina (8), and Wisconsin (8).

According to criminologist Professor Peter Kraska, “between 1989 and 2001, at least 780 cases of flawed [police] raids reached the appellate level” *2.  To put that number into perspective, there were about 3,000 raids in the 1980s and upwards of 40,000 in 2006 *3.  Thus, in actuality, the percentage of flawed raids is neither staggering nor negligible.

Note, this Article is not focused on whether the exclusionary rule should be applicable to knock-and-announce violations.  Rather, this piece begs the question of how much of a “widespread pattern of violations” or “recurring or systemic negligence” is required before the Court begins inquiring whether deterrence outweighs the socials costs of exclusion.  And also, how severe must the negligent acts be before the Court takes notice.

An example of a negligently conducted raid that resulted in the death of an innocent person occurred in New York in 2003 when officers raided an apartment for a suspect who had been arrested days earlier *4.  A confidential informant with a poor record of reliability supplied the tip that the officers used in obtaining their no-knock warrant.  After obtaining the warrant and arriving at the residence, the officers, unaware that their suspect was already in custody, threw a flashbang grenade into the apartment before entering.  57-year-old Alberta Spruill was the only occupant at the time.  After initially being stunned by the grenade she fell into cardiac arrest and died two hours later.

In 2007, police officers in a specialized tactical unit entitled the Street Enforcement Team (SET) in California raided the home of an innocent couple *5.  The officers stormed through the unlocked front door with rifles drawn and ordered everyone in the home to the “f—ing floor.”  At the time, owners David and Lillian Scott, their 15-year-old daughter, two of her friends, their 16-year-old son, and 5-month-old baby were in the house.  Everyone but the baby was handcuffed and forced to lie on the floor.  When asked why the house was being raided, no answer was provided.  When Mrs. Scott asked if her baby was okay, an officer responded that if she moved “he was going to put a bullet in [her] head.”  After knocking doors off their hinges and making a hole in one of the doors, an officer radioed another officer informing him that the second floor was clear.  The officer responded that they were supposed to be raiding a one-story house.  Only then did the officers realize they were at the wrong house.  According to Mrs. Scott, “the officers [then] apologized and left.”

New Jersey provides an example of a no-knock search that resulted in an officer’s death *6.  In 1989, officers broke through the metal door of a suspected cocaine dealer’s home with a battering ram.  Six officers then tried squeezing through a 30-inch opening to enter the residence.  While attempting to enter, an officer’s 12-gauge shotgun discharged and struck a nearby 24-year-old officer in his lower back, just outside his bulletproof vest.  The officer died one hour later.  Ultimately, the raid resulted in the seizure of roughly $1,200 worth of cocaine.

These are just three examples out of the 357 that can be found on the Cato website.  For more examples, visit the link below for the “interactive map.”

It is not clear whether these documented flawed raids represent a “widespread pattern of violations” or “recurring or systemic negligence” such that the Court should intervene.  If one were to compare the percentages of botched raids per year to the total amount of raids conducted per year, the resulting figure would probably not be very alarming.  What is clear, however, is that over the span of three decades there have been many botched raids and many people have lost their lives because of it.

At the end of the day, whether applying the exclusionary rule would result in fewer mistakes is something I will let you decide.

– Daniel E. Bonilla

*1.  Cato Institute, 2006 Interactive Map, http://www.cato.org/raidmap/# (last visited Dec. 20, 2010).

*2.  Radley Balko, Overkill: The Rise of Paramilitary Police Raids, Cato Institute (2006), http://www.cato.org/pubs/wtpapers/balko_whitepaper_2006.pdf (last visited Dec. 12, 2010).

*3.  Mathew Davis, Death Raises Concern at Police Tactics, BBC News (Mar. 21, 2006), http://news.bbc.co.uk/2/hi/americas/4803570.stm (statistic is according to Professor Kraska).

*4.  Cato Institute, 2006 Interactive Map, http://www.cato.org/raidmap/# (last visited Dec. 20, 2010); citing William K. Rashbaum, Report By Police Outlines Mistakes In Ill-fated Raid, New York Times (May 31, 2003) at p. A1.

*5. Cato Institute, 2006 Interactive Map, http://www.cato.org/raidmap/# (last visited Dec. 20, 2010); citing John Hall, New Enforcement Team Replaces One Disbanded And Under Investigation, North County Times (Sept. 13, 2007).

*6. Cato Institute, 2006 Interactive Map, http://www.cato.org/raidmap/# (last visited Dec. 20, 2010); citing Joseph F. Sullivan, Police Gun’s Blast Kills Officer on a Drug Raid, New York Times (Aug. 4, 1989) at p. B2.

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