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June 2006
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More on Hudson

Breyer’s dissent (pdf) in the Hudson Supreme Court case is really impressive (if you’re a Constitutional rights geek like me, you’ll enjoy reading it). Here’s a justice who understands the importance of the 4th Amendment as part of our guarantee of freedom.
He methodically and thoroughly dismantles every one of the majority’s points, shows some real exasperation with Scalia’s lack of logic, and concludes:

There may be instances in the law where text or history
or tradition leaves room for a judicial decision that rests
upon little more than an unvarnished judicial instinct.
But this is not one of them. Rather, our Fourth Amendment
traditions place high value upon protecting privacy
in the home. They emphasize the need to assure that its
constitutional protections are effective, lest the Amendment
‘sound the word of promise to the ear but break it to
the hope.’ They include an exclusionary principle, which
since Weeks has formed the centerpiece of the criminal
law’s effort to ensure the practical reality of those promises.
That is why the Court should assure itself that any
departure from that principle is firmly grounded in logic,
in history, in precedent, and in empirical fact. It has not
done so. That is why, with respect, I dissent.

And what was Scalia’s justification for ignoring hundreds of cases of precedent? Because we don’t need it any more.

…we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously

…except of course that he had no such evidence.
Via The Agitator (and Radley continues to be the go-to source for information on this), there’s an excellent editorial at The Orange County Register

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

What’s particularly disturbing to me is that the new court seems to be on a very dangerous path for us. Already, the court had been way too lenient on allowing “drug war exceptions” to just about every part of the Bill of Rights, and deferring to the government in Fourth Amendment cases without requiring any proof of effectiveness. But now there seems to be a disturbing trend toward an “ends justifies the means” approach to policing.
In Caballes, Justice Stevens (who actually was on the correct side in Hudson) allowed a dog sniff without suspicion because revealing “no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.” In other words — it was there, so it was OK to search for it to see if it was there. Convoluted logic and — ends justifies the means.
Now in Hudson, the majority opinion by Scalia claims that the legal search warrant would have discovered the drugs anyway, so the illegal entry doesn’t matter. The bizarre claim is that it’s too much of a penalty on the police to make them give up that particular case, because of the comparatively small infraction of neglecting to knock. But what the majority leaves out is what the cost is to the rest of society in having a government that no longer respects right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.
Another disturbing part of this is that the majority is making the case that it really isn’t all that important for the police to obey the law. When we have the highest rate of citizen incarceration in the world, and yet at various levels of hierarchy we frequently now see clearly stated that the government is not required to obey the law, then what do we call ourselves?

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