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Mixed messages on the exclusionary rule.

Article Excerpt
In Hudson v. Michigan, the Supreme Court, by a 5-4 vote, held that evidentiary exclusion is not required when police violate the Fourth Amendment by failing to properly knock and announce their presence to a suspect before executing a search warrant. (1) While this is itself an interesting issue, the more important question is whether the decision represents a significant undercutting of the exclusionary principle laid out in Mapp v. Ohio. (2)

Four justices in the majority--Antonin Scalia (the author), Clarence Thomas, John Roberts, and Samuel Alito--appear ready to eviscerate the exclusionary principle. The rule was saved from this fate in Hudson only by a confusing (or confused) concurring opinion written by Justice Anthony Kennedy.

In Hudson, police officers executing a search warrant violated the knock-and-announce rule of Wilson v. Arkansas (3) by waiting only a few seconds after they knocked before they broke into Booker Hudson's house. The officers made no claim that exigent circumstances justified their unannounced entry. (4) So Hudson squarely presented the question of what is an appropriate remedy for this Fourth Amendment violation.

In the most disturbing part of the majority opinion, the Court declared that "suppression of evidence ... has always been our last resort, not our first impulse." (5) The majority rejected as "expansive dicta" language in Mapp that declared a mandatory exclusionary rule for all Fourth Amendment violations. Many previous Court decisions had considered this language to be Mapp's central holding.

The majority further wrote that "exclusion may not be premised on the mere fact that a constitutional violation was a 'but for' cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression." (6) In other words, even if the police would not have obtained the evidence except for the Fourth Amendment...

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