Some Thoughts on Hudson v. Michigan

I saw my friend Dave Moran last night, who is the lawyer that argued Hudson v. Michigan, the recent case about knock and announce rules on searches. As you can imagine, he was pretty uphappy about losing the case. But he had a few more insights I’d like to share.

Anthony Kennedy changed his mind

Dave believes that, after he first argued the case in January, he had a 6-3 win. Now obviously, that’s his gut feel, though Dave has argued several cases before these guys (and he has a well-known Jedi-like ability to predict disc flips in ultimate frisbee). Also, the case was not included with the original batch of cases announced to be reargued–it was announced later. So if Dave’s right, then Kennedy somehow went from deciding in favor of the Fourth Amendment, to concurring against.

  1. Anonymous says:

    I’ve got a knock-knock joke for you about the new supreme court ruling. Ready?

  2. Brian Boru says:

    This decision is going to get some cops shot as they break and enter the home of a 2d amendment true- believer.

  3. Anonymous says:

    Yeah, we talked about that, too, Brian. Dave’s take is that it’ll get a lot of suspected criminals shot, because the cops tend to be better shots (and would be more prepared) than the small-time criminals.

  4. JohnLopresti says:

    Perhaps the agitation expressed by the Justices related to the inflammatory content of the case, replete with issues bordering on the social values which serve as a rockbed upon which the society and constitution function. There is a remarkably thoughtful article from last year about Justice Tony Kennedy here which perhaps you have read. Here is one of his scholarly critics. Certainly appointing the pragmatist Alito to the court added to Justice Anthony Kennedy’s burden. His views extend from absolute rejection of turning the Supreme Court into a video production, to appreciation of international scholarship concerning how law is made and interpreted abroad. While Hudson was another chink crumbling from 4th amendment rights in the exclusionary rule for ill-gotten evidence, there is the consolation that there was a warrant in hand. The commenter above who laments the added risk for gendarmes has many companions among lawyers who defend both the people in blue and the people whose premises are entered. A lot of what the current president has done relates, however, to the tidal reaction to the effect upon the social fabric caused by the way stable civilizations react to extremism. My view as that the most uncompromising sorts of policy are the most risky, and the added aura of reassurance implicit in such regimes illusory.

  5. margaret says:

    â€These remedies apply to all violations, including, of course, exceptional cases in which unannounced entries cause severe fright and humiliation.â€

    …â€if those violations were committed against persons who lacked the means or voice to mount an effective protestâ€

    A Question: What if, Mr. Chief Justices, unannounced entries were to the wrong house? What if the entries resulted in the death of the occupant(s)? Or, the death of the policemen?

    There seems to be very light-weight thinking going on, here, at the Supreme Court. Is it the heat? The humidity? Senility?

  6. prostratedragon says:

    I think it’s the stupidity, margaret.

    What if the entries resulted in the death of the occupant(s)?

    This has happened at least once in recent years. I recall a case in NYC in which a woman at home alone in her apartment was terrified to death by some cops busting down the wrong door. Might have been a second, similar case with an elderly minister. Both less than 10 years ago.

  7. Kagro X says:

    They don’t call them â€police states†because a lot of police live in them. It’s because such states put the primacy of their police function above the primacy of their private property protection function.

    It’s now more important that police be able to police than for private citizens to be able to retain their privacy.

  8. JohnLopresti says:

    In the discussions on another website, a few of the above concerns find echoes: wrong house resulting in police getting injured, weakened exclusionary rule, disproportionate recourse if the civil suit is pursued rather than the exclusionary rule–arrestee receives $1.00 compensation for broken windowpane. But the Hudson case reminds me of some of Alito’s and CJ Roberts’ other preSCOTUS decisions in fourth amendment cases.

  9. smiley says:

    I was hoping it would never come to this. It’s clear that now is the time to buy a gun, before the UN takes them all away.

    /i kid, i kid…

    But seriously. How insightful that the founders included the 2nd amendment to allow Americans to protect themselves from our OWN oppressive government. Rulings like this are the reason I can’t support any ban on assault weapons or munitions like teflon-coated hollow points. If they’re coming into my house to kill me, that’s where their constitutional rights stop and mine start…

  10. Anonymous says:

    John Lopresti

    Yes, the earlier decisions of Roberts and Alito are one of the reasons that Dave’s perception that Kennedy changed his mind on this is so troubling. Consider, that would mean in January the court was leaning in favor of the 4th amendment. But then once they started discussing it for the opinion at a time when SD O’C had been replaced by Alito, Kennedy was persuaded to rehear the case. And, if you look at the transcript, he asks the first questions, regarding a hypothetical that is not the case at hand.


  11. JohnLopresti says:

    EW: I began reading it earlier this week; and, I believe, one of the links I provided has an elaborate presentation by the losing attorney.
    Alito and Roberts seem like temperate people, but I pitty the preteen with the french fry illegally on the public transport, whom one of those justices approved of arresting; and the other justice approved of another preteen’s being stripsearched by a policewoman; the girl was not named on the warrant but was progeny of a named person.
    If you review the New Yorker article, you see a picture of Kennedy as a justice with a career-viewing conscience, but he is a very conservative centrist. I parted company with demagogues who managed to say SDO’C was a centrist; yet, to be thoughtful and respectful of her memory, she waited her opportunities to help people of an independent frame of mind, having grown up as she did in far southeastern AZ. My sense of Kennedy is he seeks to protect his own opportunities to learn, so he may enhance his contribution on the court. This is in contradistinction to Scalia, for example, who refused to recuse in a case about which he had ranted at a European conference a week prior; the video and excerpted transcript were making the rounds of the legal discussion groups online, but there is really a distinction between those two associate justices’ approach to their work on the supreme court. And Roberts is trying to herd these willful souls into lofty opinions in unison which often is far from consensus. My hope for Kennedy is his low key contributions during Katyal’s argument in Hamdan indicate he is making that one of his central decisions this term; also there is a lot of discussion about the voter cases’ likely being authored this week by two fairly liberal justices, though that authorship assignment is strictly hearsay at my listening post. Certainly your vantage must be close to the best source.

  12. texas dem says:

    I’ve been thinking for months that if I were Bush, making SCOTUS appointments, my main goal would be to find someone who could persuade Kennedy. He’s obviously going to be the swing for many years, unless Stevens gets replaced with Scalia #5, but if I can appoint a conservative who can also appeal effectively to Kennedy’s conservative side, I win the whole Court right away.

    So the guy I really want is Kennedy’s significantly-more-conservative soulmate.

    Is that who Roberts is? Scalia I think is known to have actively antagonized Kennedy. Great. Alito is too extreme to attract a guy like Kennedy, but friendly-face Roberts could be the one to gently usher Kennedy back to the conservative fold.

    Is this part of the calculation? Are justices so independent that this kind of plotting is irrelevant, or can justices actually seduce one another? Certainly if Scalia can alienate his possible allies, the reverse ought to be possible as well.

    Anyway, emptywheel’s account of the apparently painful seduction of Kennedy on this case reminded me of this whole analysis. Are we losing Kennedy to Roberts? Are Souter and Breyer in a position to seduce right back?

    It must be a really interesting feeling to be Kennedy right around now. Unfortunately, an awful lot hinges on how the War for Kennedy goes.

    PS — I remember reading somewhere that Breyer was sure that with just one extra week, he could have seduced Kennedy on Bush v Gore. That’s the kind of thing I’m talking about, and if that goes on a lot, I wonder if Roberts thinks of his main job as lassoing Kennedy.

  13. Anonymous says:

    So the guy I really want is Kennedy’s significantly-more-conservative soulmate.

    Is that who Roberts is? Scalia I think is known to have actively antagonized Kennedy. Great. Alito is too extreme to attract a guy like Kennedy, but friendly-face Roberts could be the one to gently usher Kennedy back to the conservative fold.

    Very scary thought, texas dem. But you may well be right.

  14. JohnLopresti says:

    On this court Rapanos-Carabell 4-1-4 is a Kennedy gift to environmentalists, or maybe to the Army Corps of Engineers, or maybe to developers filling wetlands; in that decision this week Roberts proffered to future readers a narrow precedential way to look at the split as vindication of the position in which Scalia, Thomas, Alito, Roberts agreed with partial Kennedy alignment, as way to evade environmental protections; though Kennedy kept his careful opinion narrow enough to allow some future plea leeway to claim other than the view Roberts suggested. At that pace Roberts will expend his supply of hapless toads quicker than he imagines; but TDem has it right, that Roberts is in the running for the fanciest lariat looping toward Kennedy.
    One of the most intriguing policies of Stevens is his avoidance of the certification pool method of giving the clerks influence. It would be worthwhile getting to an array of Justices in which Stevens could relax as the centrist he is at heart. But that realignment almost certainly will develop by other means. There is an interesting post elsewhere on this site today by epockets discussing Bush and Congress on science policy. I think Gore has sensed that is Bush Republicans’ Achilles heel in the next electoral cycles; it is a difficult and rarified attack, but Katrina FEMA changed science and social safetynet into palpable issues.

    This diverges a way from Hudson and the waning of the exclusionary rule. I once had training by some folks who performed warrantless searches; they were government employees whose job it was to verify our agency did due diligence. To gain entry to client premises they simply would knock on the door and ask in very bullying tones to enter. A lot of people will acquiesce with that kind of pressure from a person who is stating they work for government. I myself once let a distraught policeman in the house I was renting when he could not find an emergency; same thing as several commenters upthread discussed; he knew he was close but the only way he could tell, he fretted at the door at 5:00 a.m. to me, was if he could use the telephone within the home; he said his switchboard could tell from the caller id on my telephone whether he was close or even in the residence he sought. I guessed I knew who he was trying to find, it was a neighbor who was very sick and probably had a lifeline autodialer; which is why I permitted the police to enter without a search warrant. The landlord read me the riot act when he found about the incident though. Sometimes you have to rely on your instincts to work together to help someone. I will give Hudson another read and return after a while. Doubtless, the fourth amendment parsimony on the current court will record more such decisions into the archive all too soon, unless the court composition changes; or, as I am hoping, the VT, TX, and Hamdan cases afford some pushback to the rightmost majority on this court. Kennedy is likely to have ample opportunity to write his thoughts on many cases, if that triad develops the way I expect. But Roberts would prefer otherwise.

  15. teacherken says:

    emtywheel: cops might be better shots against a target, but they also might be surprised how many of the petty gangster types they will run up against have no compunction at emptying their weapons at an other human, which is something entirely different — many trained marksmen, both in police and in military, hesitate when they are actually confronted with killing another human being.

  16. JohnLopresti says:

    One of Scalia’s contributions to the regressive Hudson decision was the contention that modern research has shown police to be less in need of oversight than in earlier eras; to substantiate this somewhat fanciful depiction, Scalia cited academic research by a now emeritus professor from Univ of Nebraska, Samuel Walker. The prof has written a disclaimer in the LATimes decrying the application of his writings in the opposite direction of their intent; in fact, he says in the LAT, his conclusions in his published research show that only proactive programs for oversight nurture the conditions which may optimize fairness, especially with respect to the evidentiary exclusion rule which had its origins in 1961 as one of the two watershed rulings in this realm by the Warren supreme court, the other being the Miranda rule. We could talk about what has been happening with Miranda dilution recently, as well: in some other thread.

  17. Anonymous says:

    My life’s been pretty dull these days. Such is life. I’ve basically been doing nothing.

  18. Anonymous says:

    I haven’t gotten much done , but it’s not important. Not much on my mind lately. Today was a total loss, but so it goes.

  19. Anonymous says:

    I can’t be bothered with anything recently. I’ve just been sitting around doing nothing. Today was a loss. I just don’t have much to say. Nothing seems worth thinking about.