Supreme Court’s ‘drug war exception’ endangers privacy

Editorial

In Hudson v. Michigan, handed down Thursday, the U.S. Supreme Court carved out yet another “drug war exception” to the Fourth Amendment, which was written to protect Americans from unreasonable searches and seizures of their persons and homes.

Unfortunately, the ruling is likely to lead to more military-style no-knock raids of people’s homes and businesses, which will mean some innocent people’s homes will be raided, and a few people are likely to be killed.

The Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It’s an affirmation of the ancient common-law principle that a person’s home is his or her castle, that the authorities cannot intrude on it without solid evidence of a crime having been committed or being in progress.

The most direct way to enforce this rule would probably be to impose fines or other penalties – even prison sentences – on police who violate it, but such penalties are not realistic. So about 100 years ago the courts came up with the “exclusionary rule”: Evidence seized in an illegal search is excluded from any subsequent court case.

It’s an imperfect rule – the incentive for a police officer to worry about the final disposition of a case is somewhat indirect – but it’s the best device we’ve come up with, and it has a long history.

The situation is complicated when legislatures pass laws against crimes that are victimless in the very specific sense that there is unlikely to be a complaining victim to go to the police to offer specific and reliable information for an accurate warrant. Drug laws, which prohibit adults from ingesting certain substances, are one example.

Neither the buyer nor the seller of drugs is likely to complain to the police, even if a transaction goes sour. A user of illicit drugs is unlikely to call the police and say, “Hey, there are illicit drugs in my apartment.” To get evidence to prosecute these laws, increasingly intrusive methods of getting into otherwise private places and surprising people are necessary. Therefore the constitutional protection against unreasonable searches and seizures must be and has been progressively weakened.

Among the methods increasingly employed are undercover operatives and informants, “no-knock” warrants, in which a judge can authorize serving a warrant without the police knocking and announcing, and military-style SWAT team invasions. These tactics can put police at risk if a person is confused and thinks criminals are breaking down his door, and they have led to “wrong-door” raids where innocent citizens have been killed by the police.

In the Hudson case, the police, who did have a warrant, waited only three to five seconds before entering Booker T. Hudson’s apartment and finding cocaine and a gun. The courts who reviewed the case agreed it violated the “knock-and-announce” rule and was unconstitutional, but the appellate court in Michigan ruled that excluding the evidence was too severe a penalty for a minor infraction and allowed the evidence, leading to Hudson’s conviction. A deeply divided 5-4 Supreme Court, in an opinion written by Justice Antonin Scalia, affirmed that decision.

The decision could mean, in effect, that every search warrant becomes a “no-knock” warrant.

As Radley Balko, a Cato Institute policy analyst whose writing was cited in Justice Stephen Breyer’s eloquent dissent, said, “the state of Michigan acknowledged that it knows of no successful suits or disciplinary action against police who violated search-and-seizure rules. So the only real defense against police abuse was to exclude evidence seized in illegal raids. Today (Thursday), the Supreme Court removed that defense.”

Since drug raids are often based on confidential informants whose reliability can be dicey, this decision is likely to lead to more military-style policing and more “wrong-door” raids on innocent people. It is wrong-headed and potentially tragic.