A Chisel Or A Sledgehammer

In my post today I will be walking that fine line of being unbiased, though many will surely draw their conclusion on what side of this issue I agree with, and nonpolitical, though I anticipate readers will put me in a particular ideological column. That is fine.

Alexis de Tocqueville observed over a century ago that everything in America is politics. This can not be more true than in terms of the law, especially when the two intersect.

The facts of this specific case do not need be related here. What is important to note as a warning is what the Supreme Court of the United States allowed today. The answer is this: evidence seized in a home search can be used against a suspect even though police fail to knock on the door and wait a "reasonable" amount of time before entering. The justices sparred in an appeal they were hearing for a second time, and reflected the deep divisions that remain on a court divided along ideological lines. There was little unanimity over how to ensure law enforcement officers do not routinely violate the constitutional protection against "unreasonable searches-and-seizures."

The 5-4 decision continues a string of rulings since the September 11, 2001 terrorist attacks that in general give law enforcement greater discretion to carry out search-and-seizure warrants. Chief Justice John Roberts and Justice Samuel Alito, President Bush's nominees to the high court, notably sided with the government. Writing for the majority, Justice Antonin Scalia said disallowing evidence from every "knock-and-announce violation" by officers would lead to the "grave adverse consequence" of a flood of appeals by accused criminals seeking dismissal of their cases. Scalia added that police might put their lives in danger if they were uncertain when and if entry was legally permissible. "If the consequences of running afoul of the law were so massive, officers would be inclined to wait longer than the law requires -- producing inevitable violence against officers in some cases, and the destruction of evidence in many others."

Justice Stephen Breyer wrote a lengthy dissent, saying, "Our Fourth Amendment traditions place a high value upon protecting privacy in the home." A centerpiece of those protections, he said, includes the "exclusionary rule," under which evidence seized in illegal searches should be suppressed at trial. Writing further, Breyer noted, "it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection."

American citizens like to believe that they live in a free society. This belief is buoyed by our fundamental laws, enumerated in the Constitution, particularly the Bill of Rights (a hotly contested part of the document, then and today). When we speak of freedom, that glorious ambivalent word, subconsciously, we are thinking of the Constitution, even the Declaration of Independence. So, it is difficult to square this tradition of legal precedence with what is new precedence today.

Protecting freedom abroad begins at home.