Justice Anthony Kennedy filed another of his watery "concurring" opinions, like his feeble concurrence last month in the hugely important case of federal control over isolated underground state waters. Scalia's opinion for the court, said Kennedy, should not be interpreted as suggesting that the knock-and-announce requirement is trivial. Moreover, "the continued operation of the Exclusionary Rule as settled and defined by our precedents is not in doubt." Having sucked much of the juice out of the majority's opinion, he sighed and signed on.
Justice Stephen Breyer, speaking also for Justices Stevens, Souter and Ginsburg, found Scalia's opinion "doubly troubling." The majority had departed significantly from a unanimous precedent just 10 years ago; moreover, Scalia's opinion would weaken, perhaps destroy, much of the practical value of the Constitution's knock-and-announce protection. If the police had taken their time and entered lawfully, they would have found the gun and the drugs. But the question is not what the police might have done, but what they did do. Accordingly, their failure to knock and announce "rendered the entire search unlawful."
In my own view, Scalia's opinion rightly decided the case. But as they used to say of serial movies, so let it be said of jurisprudence under the Fourth Amendment: "to be continued."
(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or by e-mail to kilpatjj@aol.com.)
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