Failure to knock

June 19, 2006

For those who think it doesn't matter who sits in the White House, a close ruling by the U.S. Supreme Court last week is a sharp reminder of how that bench is affected by presidential politics. The 5-4 decision allowing the admission of evidence even though it was conceded that police had violated the defendant's constitutional rights was supported by President Bush's two appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. The ruling poses a threat to the right of privacy and to accepted ways to wipe the slate clean when it is violated in criminal cases.

Police had a search warrant when they arrived at the Detroit home of Booker T. Hudson Jr. in 1998. Though they announced their presence, they didn't knock before opening his unlocked door almost immediately. Inside his home, they found a loaded gun and a large quantity of drugs. It was generally agreed that by failing to knock, police violated Mr. Hudson's Fourth Amendment protection against illegal searches and seizures. After being charged with unlawful possession, Mr. Hudson tried to have the evidence excluded.

But the court majority's disagreement with that remedy, as articulated by Justice Antonin Scalia, dismissed the relative importance of failing to knock in this case, showed little appreciation for the expectation of privacy that Mr. Hudson - or any citizen - should be entitled to and skirted decades of legal precedent that excluding incriminating evidence is a proper cure for police mistakes. Justice Scalia's suggested unlikely new cure is for an aggrieved defendant to file a civil lawsuit.

This is a case that was reargued after Justice Alito replaced Sandra Day O'Connor - and seemed destined for a different outcome had she remained on the court. That pattern is likely to be repeated, and it underscores the important connection between the court's sensibilities and the election returns.

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