Cato Supreme Court Review 2005-2006

By Roger Pilon; Robert A. Levy et al. | Go to book overview

The End of the Exclusionary Rule,
Among Other Things: The Roberts Court
Takes on the Fourth Amendment

David A. Moran*


I. Introduction

I have found through experience that when one argues a case in the United States Supreme Court, it can be more than a bit difficult to put the resulting decision in perspective. Depending on whether one wins or loses (and I’ve had both experiences), it is all too easy to think of the case as either the most important breakthrough in years or the death of the law as we know it.

I hope the reader will apply the appropriate degree of skepticism, therefore, when I say that my 5–4 loss in Hudson v. Michigan1 signals the end of the Fourth Amendment as we know it. In Hudson, the Court held that when the police violate the Fourth Amendment “knock and announce requirement” the normal Fourth Amendment remedy, exclusion of the evidence found after the violation, does not apply. While that result is remarkable enough given that the rule had been otherwise in every state except one2 and in every

* Associate Dean, Wayne State University Law School. I gratefully acknowledge the help I received from Timothy O’Toole and Corinne Beckwith, both of the Public Defender Service of the District of Columbia, in clarifying my thinking throughout the Hudson litigation. I also thank the Cato Institute and the National Association of Criminal Defense Lawyers for filing a superb amicus brief on my side in Hudson, and I thank Professor Tracey Maclin of Boston University Law School for writing that brief. After receiving that help from Cato, agreeing to write this article was the least I could do.

1 126 S. Ct. 2159 (2006).

2 See People v. Stevens, 597 N.W.2d 53 (Mich. 1999). The Stevens reasoning had been specifically rejected by appellate courts in at least nine states, see Brief for the Petitioner at 17, Hudson v. Michigan, 126 S. Ct. 2159 (2006) (No. 04–1360) (collecting cases from eight states) [hereinafter Petitioner’s Brief]; Supplemental Brief for the Petitioner at 1, Hudson v. Michigan, 126 S. Ct. 2159 (2006) (No. 04–1360) (citing case from additional state), while courts in the remaining 40 states apparently suppressed evidence found following knock and announce violations without even entertaining

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