Ruling on Police Searches Divides Justices

After a bitter debate, the Supreme Court issues a 5-4 ruling that protects evidence gathered by more aggressive police-search techniques. Justices split over a case where police — armed with a warrant — paused only briefly before entering a home.

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STEVE INSKEEP, host:

Just across the street from the Capitol, the Supreme Court issued a ruling that affects how police do their jobs.

In a sharply divided vote, the court made it easier for police to get evidence into court. The decision covers police who come to a home with a search warrant but barge in without following a requirement to knock and wait. Authorities may now be able to use the evidence they gather that way for a trial.

Here's NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG reporting:

Eleven years ago the Supreme Court ruled unanimously that the Constitution requires police to knock and announce their presence before breaking into a home to execute a warrant. Three years ago, the court said police must wait 15 to 20 seconds. But yesterday, a bitterly divided court ruled that if police violate that rule without a good reason, the traditional penalty of disallowing the seized evidence at trial will not apply. The evidence can come in.

The five-to-four decision seems to signal a new aggressiveness by the court's conservative majority, a majority now enhanced by two new Bush appointees, and it illustrates the pivotal role of Justice Anthony Kennedy, who joined the majority but wrote separately to say that he would not go along with any wholesale abandonment of the century-old rule that bars illegally obtained evidence from being used at trial.

Wayne State Law School Associate Dean David Moran, who represented the defendant in the case, said yesterday's decision eviscerates the so-called knock and announce rule.

Mr. DAVID MORAN (Wayne State Law School): On the ground, the knock and announce rule will be a joke.

TOTENBERG: Others, less critical of the ruling, conceded that the practical impact of the decision would be to take the teeth out of the rule.

George Washington Law Professor Steven Salsburg.

Professor STEVEN SALSBURG (Law, George Washington University): This is a bright line rule. I don't see anything in the Justice Scalia approach which says if the police do it deliberately that makes a difference. The rule is we don't suppress evidence simply because they don't knock and announce.

TOTENBERG: Yesterday's decision came in a routine drug case, where police conceded they had not knocked or waited more than a few seconds before entering the home. The question was whether the evidence they found inside, a small amount of cocaine and a gun, could be introduced at trial.

The answer from the Supreme Court was yes. Writing for the majority, Justice Antonin Scalia said that the long-established rule, excluding illegally obtained evidence, has substantial social costs, letting the guilty and the dangerous go free. And in this case, he noted, the police had a warrant and would have discovered the evidence even if they had followed the rules.

Pointing to the court's decision 45 years ago, holding that all illegally obtained evidence must be excluded from trials, Scalia said, in essence, that is then, and this is now. Now, he noted, the police are far more professional than in the past, and citizens can sue for damages for a violation of their rights.

But the dissenters, led by Justice Stephen Breyer, countered that the police are more professional precisely because of the deterrent effect of the so-called exclusionary rule barring illegally obtained evidence. Experience shows us, said Breyer, that no other measure provides such a deterrent. What's more, he added, the knock and announce rule is reasonable and flexible. It allows for no-knock searches when there is reason to believe there is danger to the police or that the evidence will be destroyed.

The tone of both the majority and dissent strongly suggested that the case reargued after Justice Sandra Day O'Conner left the bench had turned in large part on the vote of her replacement, Samuel Alito. It also suggested that behind the scenes the justices saw this case as a harbinger of things to come; a wholesale attack on the exclusionary rule, not just in knock and announce cases, but in cases where there is no warrant.

Supreme Court advocate Tom Goldstein teaches at both Harvard and Stanford Law Schools.

Professor TOM GOLDSTEIN (Law, Harvard and Stanford Law Schools): The exclusionary rule lives to see another day. But its head is on the chopping block. The two newest conservative members of the court signaled today that they were willing to give the police a lot more latitude, and it was the new center of the court, Justice Kennedy, who held the line.

TOTENBERG: Justice Kennedy, while joining most of the majority opinion, wrote separately to say that as far as he is concerned, the exclusionary rule is settled law and is not in play.

Nina Totenberg, NPR News, Washington.

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