On the other hand, Scalia contended, enforcement of the Exclusionary Rule carries substantial social costs. The exclusion of relevant incriminating evidence entails, for example, "the risk of releasing dangerous criminals into society." But loosening the rule would generate a constant flood of alleged failures to obey the Fourth Amendment. "The cost of entering this lottery would be small, but the jackpot enormous -- suppression of all evidence, amounting in many cases to a get-out-of-jail free card."
Scalia wound up his opinion for the majority with a stout defense of the increasing professionalism of police. "We now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously." Here my favorite justice was not eating fire. He was blowing smoke. He concluded:
"In sum, the social costs of applying the Exclusionary Rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial. ... Resort to the massive remedy of suppressing evidence of guilt is unjustified."
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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