hey, criminal defense lawyers, what is your take on this?

[Dinsdale]

I'm about as hardcore a "Bill Of Rights Guy" as you'll find, and that said -- if we're talking about cops armed with a written warrant in their hands, I don't really see a problem.

I'm pro-Bill Of Rights...not "anti-law-enforcement."

If the police have provided enough evidence to a judge to get a written warrant, I don't see where a few seconds is an issue.

I'm very much against the whole "knock-and-talk" warrantless searches, though.

[jiminphilly]

SCOTUS: No knock necessary.

So much for the exclusionary rule, huh?

Is there an actual written document that states how a search warrant is to be carried or is it 'understood' that police are to knock, wait a 15-20 seconds and enter the premises to being their search?

[Terry in Crapchester]

Seems to me to raise more questions than it answers.

I also agree that a lawsuit for damages under 42 U.S.C. §1983 is not an adequate remedy in this case. Michigan has conceded a "knock and announce" violation. Most attorneys, myself included, would tell the guy he's wasting his time pursuing a civil lawsuit.

[Moving Sale]

The majority opinion seems well-reasoned to me. And, if you need a minute to flush your stash while the Police are trying to execute a warrant, install a few deadbolts in a steel door and keep it locked. Just sayin.

That time is for the lord of the house to answer the door.

Team Nutsack writes bad law again. Color me shocked.

[Derron]

If you got a warrant, I guess your going to come in.

Sincerely,

The Grateful Dead.

[Diego in Seattle]

I don't think this will change much, at least initially. Unless they are dealing with someone known to harbor a grudge against cops & has weapons, I'd bet most cops will continue with "K&N" to make sure their evidence doesn't get tossed by another court.

[Terry in Crapchester]

Diego, with all due respect, I think you misread the ruling.

I didn't read the ruling as tossing the "knock and announce" rule. And Michigan conceded a violation of that rule here. The only issue was the remedy. You may have a point, though, in terms of precedent -- the "knock and announce" rule could be in jeopardy if police think the Supreme Court will take a "no harm no foul" position as to any future violations.

[XXXL]

It's heartbreaking to see another great tradition washed away by Justices who ideologically look past tradition, and instead set the rules on the side of big brother.......

[recockulous]

Seems to me to raise more questions than it answers.

I also agree that a lawsuit for damages under 42 U.S.C. §1983 is not an adequate remedy in this case. Michigan has conceded a "knock and announce" violation. Most attorneys, myself included, would tell the guy he's wasting his time pursuing a civil lawsuit.

Well, he'll have 5-10 years with nothing better to do than file it himself.

[Allah Akbar]

We here at al Qaeda will not have a warrant when we slaughter all of you dirty infidels.

Allah Akbar!!!!!!!!!!!!!!!!!!!!!!!

[XXXL]

It's heartbreaking to see another great tradition washed away by Justices who ideologically look past tradition, and instead set the rules on the side of big brother.......

Did you read the opinion? If so, how can you say that ^^^?

The majority didn't wash away a great tradition (whatever that is supposed to be). The majority noted that:

Until a valid warrant has issued, citizens are entitled to shield “their persons, houses, papers, and effects,” U. S. Const., Amdt. 4, from the government’sscrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement. The interests protected by the knock-and-announce requirement are quite different—and do not include the shielding of potential evidence from the government’s eyes.

One of those interests is the protection of human life and limb, because an unannounced entry may provokeviolence in supposed self-defense by the surprised resident. Another interest is the protection of property. Breaking a house (as the old cases typically put it) absent an announcement would penalize someone who “‘did not know of the process,of which, if he had notice, it is to be presumed that hewould obey it . . . .’” The knock-and-announce rule givesindividuals “the opportunity to comply with the law and toavoid the destruction of property occasioned by a forcibleentry.” And thirdly, the knock-and-announce ruleprotects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the“opportunity to prepare themselves for” the entry of the police. “The brief interlude between announcement and entry with a warrantmay be the opportunity that an individual has to pull on clothes or get out of bed.” In other words, it assures the opportunity to collect oneself before answering thedoor.

What the knock-and-announce rule has never protected, however, is one’s interest in preventing the governmentfrom seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

In this particular case, the dude was sitting on his sofa with crack rocks in his pocket and a loaded gun stuffed in the cushions. The police didn't damage any property, they turned the knob of an unlocked door and made entry, with warrant in hand.

http://www.supremecourtus.gov/opinions/ ... 4-1360.pdf

Exclusionary Rule...ought not to lose significance, nor tradition.

[XXXL]

Why exclude that which the government had the lawful right (warrant) to seize? It doesn't make any sense to suppress in this instance, XXXL. It runs contrary to the interest of the people. Give the crack head a buck fifty for the seven seconds of his life it would have taken him to walk over and open the door. Hell, make it $10.50 for an extra pair of BVD's to replace the ones he shit in when the po-po walked into his crib.

In my jurisdiction, success on motions to suppress, rarely occurs. I find meaning however in making motions to suppress because I appreciate the rule of law, and checks that law enforcement agencies face when I call them to the test as to why and how they go about their assertion of law.

Your point is valid, but I find myself on the defense side of criminal law and I follow the path that was cleared before me. That path is the path that requires constitutional scrutiny every step of the way for the clients that rely on me...

[Terry in Crapchester]

If I was still getting paid to get shit bags out of the shit they got themselves into, I'd probably feel the same way. But the intrusion here is very minimal. The "knock and announce" rule still survives, but the remedy for a violation is a civil one rather than the exclusion of the evidence that law enforcement had a warrant to obtain. Much hysteria over nothing.

I see your point here. Where I disagree with you is that imho, a civil remedy for a violation of the "knock and announce" rule is not much of a deterrent to a violation of the rule. Why have the rule in the first place if the police have no incentive to comply with it?

[Moving Sale]

If I was still getting paid to get shit bags out of the shit they got themselves into, I'd probably feel the same way.

Funny how right wing wackos like you love free enterprise and the 2nd am... till someone wants to use those rights.

Why do you hate America?

[Terry in Crapchester]

If I was still getting paid to get shit bags out of the shit they got themselves into, I'd probably feel the same way. But the intrusion here is very minimal. The "knock and announce" rule still survives, but the remedy for a violation is a civil one rather than the exclusion of the evidence that law enforcement had a warrant to obtain. Much hysteria over nothing.

I see your point here. Where I disagree with you is that imho, a civil remedy for a violation of the "knock and announce" rule is not much of a deterrent to a violation of the rule. Why have the rule in the first place if the police have no incentive to comply with it?

As you know, successful §1983 cases allow for the recovery of attorney's fees.

True, but those are always subject to the discretion of the court in any event. Like I said, if the guy came to me about a civil action, I'd probably tell him that he was wasting his time.

That alone is often enough to get a trivial civil rights violation case filed.

Not necessarily. See above.

What should the remedy be in this case? How much money will compensate the dude for the 7 or 8 seconds he was deprived of? It wasn't like they barged in and found him nude or banging the old lady. He was sitting on the sofa across the room. What is his compensation for not being given enough time to get up and walk across the room?

I think you missed my point here. My concern here is not compensation for the person. It's for the police respecting this particular point of law. Is a civil action for damages a strong enough deterrent?

Now, I'll concede that for a police officer who happened to be married to my wife, the prospect of a civil lawsuit together with a wage garnishment for any judgment recovered might be a strong enough deterrent. But since no police officers are married to my wife, that might not be the case. Throw in the culture that exists among the police, and maybe these will come to be seen as debts of honor, who knows.

Bottom line is that applying the exclusionary rule here certainly would have been a strong enough deterrent. A civil lawsuit? None of us here can honestly say, right now, that we know whether it will be an effective deterrent. Only time will tell.

And if we don't want to deter police from violating the "knock and announce" rule in the first place, we should get rid of the rule.

[Moving Sale]

That you are historically brain-dead is not at all shocking.

[Terry in Crapchester]

I don't understand the "constitutional" underpinnings for the "knock and announce" rule. But then again, I couldn't find the "constitutional" underpinnings for the recitation of Miranda warnings, either...

The latter is easy.

You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law.

http://caselaw.lp.findlaw.com/data/cons ... endment05/

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you at no cost to you.

http://caselaw.lp.findlaw.com/data/cons ... endment06/

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

[XXXL]

If I was still getting paid to get shit bags out of the shit they got themselves into, I'd probably feel the same way. But the intrusion here is very minimal. The "knock and announce" rule still survives, but the remedy for a violation is a civil one rather than the exclusion of the evidence that law enforcement had a warrant to obtain. Much hysteria over nothing.

Checks ought to take place at the Criminal Court trial level. What's to deter further Constitutional abuse by law enforcement if they cant' be held to answer to their acts then?

Hot damn, surf is up in Cali!!!!!!!

Catch a few green rooms in la manana.......

[recockulous]

What is his compensation for not being given enough time to get up and walk across the room?

The gov't will buy him a new door and a nice shiny lock. It's worth it to buy doors to make sure future Defendant isn't pouring his smack down the can.

[Moving Sale]

The gov't will buy him a new door and a nice shiny lock. It's worth it to buy doors to make sure future Defendant isn't pouring his smack down the can.

Or his beer... oh wait beer is legal again... nevermind.

[Terry in Crapchester]

It is easy when you get to make up "Constitutional" rights out of thin air, as the Warren Court did in Miranda. Read the decision.

I have read the decision. And in fact, it points to the exact language in the Constitution that I pointed out to you.

In that case, a fractured majority . . .

The Miranda majority was fractured only because Miranda actually consolidated four cases within a single decision. One Justice (Clark) concurred with the majority in one case, and dissented in the others. The dissent was actually more fractured than the majority -- the four opinions produced by the case were the majority decision (Warren's), Clark's decision, which essentially was a concurrence in part and a dissent in part, and two dissents.

. . . departed from a long line of prior cases that interpreted the 5th, 6th and 14th Amendments as not requiring any recitation of rights by police officers prior to interrogation. The Court extended the "privileges" provided in the 5th and 6th Amendments to circumstances they were never intended to cover, and then simply made up the rest.

Disagree. Escobedo v. Illinois, two years prior to Miranda, reached a similar result. Miranda explicitly stated that it was reaffirming Escobedo, not overruling any other ase law.

Miranda, which has no "constitutional" underpinnings but for the pronouncement by the Warren Court that it was intended to provide concrete "consitutional" guidelines, has become engrained in our "national psyche", and stare decisis (which apparently only counts for decisions rendered since 1966) now prohibits the correction of the original error. See Dickerson (not Eric).

I'll agree with you in part here. Miranda has become engrained within our national psyche, to the point where many people don't understand its applicability (only when the police seek to undertake a custodial interrogation). As for the rest, it seems to me, respectfully, that you have a beef with the outcome in Miranda moreso than with its legal reasoning, and the part I put in bold would seem to confirm that especially. That's okay, but it's better to admit that.

[Moving Sale]

Strawman S-T-R-A-W-M-A-N Strawman