Hudson v. Michigan - Amicus (Merits)

Docket number: 
No. 04-1360
Supreme Court Term: 
2005 Term
Court Level: 
Supreme Court

No. 04-1360

In the Supreme Court of the United States






Solicitor General
Counsel of Record

Assistant Attorney General

Deputy Solicitor General

Assistant to the Solicitor

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


Whether evidence seized pursuant to a valid search warrant must be suppressed because the officers who exe cuted the warrant violated the Fourth Amendment's knock- and-announce requirement.


This case presents the question whether evidence seized pursuant to a valid search warrant must be suppressed when the police executing the warrant enter without complying with the Fourth Amendment knock-and-announce rule, but the evidence seized would have been discovered even if they had complied with the rule. Because the Court's resolution of that question will affect the admissibility of evidence offered in federal criminal prosecutions, the United States has a sub stantial interest in this case.


1. At 3:35 p.m. on August 27, 1998, approximately seven Detroit police officers executed a search warrant for narcotics and weapons at petitioner's house. Officer Jamal Good testi fied that he neither saw nor heard any activity inside the house-a single family dwelling-as he and the other officers approached. Some of the officers shouted "police, search war rant" upon their arrival. After waiting three to five seconds, Officer Good turned the knob on the door, and the officers entered the house. Officer Good was a 14-year veteran of the Detroit Police force with six years of experience in the Nar cotics Division. He testified that his entry was prompted by concerns for his safety, explaining that he had been shot at numerous times when executing narcotics search warrants. J.A. 4-5, 7-8, 19-20; 10/10/00 Tr. 10-16; 10/22/02 Tr. 5-9, 15-16.

Immediately upon entering the house, Officer Good saw petitioner seated on a chair in the living room. At least five other men and women were found running throughout the house. During the subsequent search, the police found on the chair in which petitioner had been sitting a plastic bag con taining 23 individual zip-lock bags, each containing crack co caine. They also discovered a loaded revolver protruding from between the cushion and armrest of the chair, as well as five rocks of cocaine weighing less than 25 grams and $225 cash inside petitioner's pants pockets. In addition, the police found a plastic bag on the living room coffee table containing two smaller baggies, each of which held 24 zip-lock bags of cocaine. J.A. 5-8, 17-20, 22; 10/22/02 Tr. 6, 9, 12-13, 17, 31, 33- 39, 58-59; 10/23/02 Tr. 40-44.

2. Petitioner was charged with possession of less than 50 grams of cocaine with intent to deliver, in violation of Mich. Comp. Laws Ann. § 333.7401(2)(a)(iv) (West 2001), and pos session of a firearm during the commission of a felony, in vio lation of Mich. Comp. Laws Ann. § 750.227b (West 2004). Petitioner moved to suppress the evidence, claiming, inter alia, that the police had violated the knock-and-announce requirement under the Fourth and Fourteenth Amendments, and that the evidence derived from the search should there fore be suppressed. J.A. 9-12.

At the evidentiary hearing, the prosecutor conceded, in light of Officer Good's testimony, that the police had violated the knock-and-announce requirement by waiting only three to five seconds before entering petitioner's home. The trial judge granted petitioner's motion to suppress. Pet. App. 9-10.

The State filed an interlocutory appeal, arguing that suppression was improper in light of the Michigan Supreme Court's decisions in People v. Stevens, 597 N.W.2d 53 (1999), cert. denied, 528 U.S. 1164 (2000), and People v. Vasquez, 602 N.W.2d 376 (1999), which held that the inevitable discovery doctrine of Nix v. Williams, 467 U.S. 431 (1984), generally rendered suppression inappropriate when officers failed to comply with the Fourth Amendment knock-and-announce requirement in making their entry to execute a valid warrant.

On May 1, 2001, the Michigan Court of Appeals reversed the suppression order, based on the decisions in Stevens and Vasquez. Pet. App. 4. Petitioner filed an application for leave to appeal to the Michigan Supreme Court. On December 18, 2001, the Michigan Supreme Court denied the application, reaffirming its decisions in Stevens and Vasquez. Id. at 5.

3. Following a bench trial on October 25, 2003, peti tioner was convicted of possession of less than 25 grams of cocaine, and acquitted of the firearm charge. He was sen tenced to 18 months of probation. J.A. 21-24.

Petitioner appealed his conviction, again arguing that the evidence seized in the warrant-authorized search should be suppressed because of the knock-and-announce violation. On June 17, 2004, the Michigan Court of Appeals affirmed petitioner's conviction, Pet. App. 1-2, and the Michigan Su preme Court subsequently denied his application for leave to appeal, id. at 3.


Because the exclusionary rule imposes significant costs on society by preventing the use at trial of reliable, probative evidence, the Court has carefully limited the rule's application to cases in which there is a significant causal connection be tween the discovery of evidence and the illegality. While the Court has articulated various doctrines-inevitable discovery, independent source, and rules that identify the "fruit of the poisonous tree"-to describe different ways in which a viola tion should not lead to suppression, they all reflect the princi ple that suppression is too high a price to pay for a particular violation when the causal link between the violation and the acquisition of evidence is weak, non-existent, or irrelevant to exclusionary-rule policies.

Such causation is completely lacking here. When offi cers seize evidence pursuant to a lawful warrant, the evidence is the product of the warrant, rather than the product of the unreasonable manner in which the police effected entry to execute the warrant. The warrant represents a judicial com mand that the officers search for and seize the evidence de scribed in the warrant, and there is no dispute that the offi cers in this case would have lawfully entered petitioner's resi dence and discovered the same evidence if they had delayed entry for the additional moments required by the knock-and- announce rule.

The evidence seized under warrant is therefore not the fruit of the particular government conduct that violated the Fourth Amendment, and suppression is therefore inappropri ate. Indeed, application of the exclusionary rule in this con text would put the government in a "worse position than it would otherwise have occupied" absent the illegality, contrary to this Court's express limitation on the exclusionary rule in Murray v. United States, 487 U.S. 533, 542 (1988) (emphasis added).

That conclusion is particularly clear given that the only claim of illegality asserted by petitioner involves the manner in which the officers executed the search warrant. Suppres sion of all the evidence is a mismatch because petitioner's Fourth Amendment interest here is not, as in a case involving the warrant or probable-cause requirements, in the items to be seized, but in the manner in which entry is achieved. This and other courts have repeatedly indicated that suppression is not an appropriate remedy for every illegality that might occur in the execution of a search warrant. Indeed, the Court has twice held that an initial illegal entry does not justify sup pression of evidence subsequently seized pursuant to a valid warrant. See Murray, 487 U.S. at 536-541; Segura v. United States, 468 U.S. 796, 804 (1984).

Petitioner's assertion that, absent suppression of all of the fruits of the search, police will routinely ignore the knock- and-announce rule is mistaken. Not only does that view inap propriately presume the bad faith of police officers, but sup pression remains an appropriate remedy if a knock-and-an nounce violation itself produces the discovery of evi dence-for example, a statement of a startled occupant. And, absent legitimate concerns over safety or destruction of evi dence, the risk that occupants may mistake the police for in truders gives the police ample incentives to announce their identity and purpose and wait a reasonable period of time for an occupant to answer the door. In addition, there remain significant alternative remedies for constitutional violations, such as liability under 42 U.S.C. 1983 and the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), or criminal sanctions, as well as non-judicial remedies, such as the possibility of departmen tal discipline.

In any event, this Court has never permitted a desire for greater deterrence of police misconduct to take precedence over the universal requirement that evidence sought to be suppressed must be causally connected to the illegality. Es pecially where, as here, the claim of illegality goes only to the manner of executing the search, this Court's cases make clear that suppression of all evidence obtained during the warrant- authorized search would be a disproportionately severe rem edy.



The manner in which a search or seizure occurs is gov erned by the reasonableness requirement of the Fourth Amendment. See United States v. Ramirez, 523 U.S. 65, 71 (1998); Graham v. Connor, 490 U.S. 386, 395 (1989). In Wil son v. Arkansas, 514 U.S. 927, 931 (1995), this Court held that the common-law requirement that officers announce their identity and purpose before entering a home to execute a search forms part of the Fourth Amendment inquiry into the reasonableness of the officers' entry.

Unlike other Fourth Amendment requirements, such as the warrant and probable-cause requirements, the knock-and- announce rule does not protect against improper government discovery or seizure of personal items. Rather, the rule serves three narrower interests. First, it protects "the indi vidual privacy interests intruded upon by a no-knock entry." Richards v. Wisconsin, 520 U.S. 385, 393 (1997). Although the search or arrest warrant itself justifies a significant intru sion on the occupants' privacy interests, an announcement before entry tempers the suddenness of the invasion of pri vacy. See id. at 393 n.5. Second, a prior announcement pro tects officers from the possibility that occupants will take violent defensive action based on the mistaken assumption that a criminal intruder is at the door. Sabbath v. United States, 391 U.S. 585, 589 (1968). Third, a knock before entry prevents needless damage to the door of the home by giving occupants an opportunity to admit the officers peacefully. Miller v. United States, 357 U.S. 301, 307-308, 313 (1958).1

In light of the State's concession, this case proceeds on the assumption that petitioner's Fourth Amendment rights were violated by the officers' early entry into his residence to effectuate the search warrant. It does not follow, however, that the premature entry requires suppression of the evidence that was seized pursuant to the warrant. As noted, peti tioner's interest in avoiding improper government seizure of his personal items is not among the Fourth Amendment inter ests protected by the knock-and-announce rule, especially in the context of a search supported by a lawful warrant.

A. Failure To Comply With The Knock-And-Announce Rule Does Not Require Suppression Of Evidence Seized Under The Warrant Because Such Evidence Is Not The Fruit Of The Premature Entry

The exclusionary rule requires suppression only when evidence is acquired as a consequence of unlawful conduct. When officers seize evidence pursuant to a lawful warrant, the evidence seized is the fruit of the warrant, rather than the fruit of the unreasonable manner in which the police effected entry. Because the evidence seized under warrant is not the product of the particular government conduct that violated the Fourth Amendment, the exclusionary rule is not an appro priate remedy.

1. The Court Has Carefully Limited Application Of The Exclusionary Rule To Those Instances Where It Is Most Likely To Accomplish Its Remedial Aims Without Imposing Undue Costs

This Court has repeatedly recognized that the exclu sionary rule imposes significant costs on society by prevent ing the use at trial of reliable, probative evidence, thereby allowing culpable defendants to go free.2 The Court has also emphasized that the exclusionary rule is a "remedial device," and that as such, its application "has been restricted to those areas where its remedial objectives are thought most effica ciously served." United States v. Calandra, 414 U.S. 338, 348 (1974); Illinois v. Gates, 462 U.S. 213, 257 (1983) (White, J., concurring in the judgment) ("[E]xclusion of evidence is not a personal constitutional right but a remedy, which, like all remedies, must be sensitive to the costs and benefits of its imposition.").

For these reasons, the exclusionary rule generally has been invoked only to suppress "[e]vidence obtained as a direct result of an unconstitutional search or seizure." Segura v. United States, 468 U.S. 796, 804 (1984) (emphasis added); see, e.g., Arizona v. Hicks, 480 U.S. 321 (1987); United States v. Chadwick, 433 U.S. 1 (1977); Chimel v. California, 395 U.S. 752 (1969); Katz v. United States, 389 U.S. 347 (1967); Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914). In addition, evidence that is obtained through ex ploitation of the prior illegality may be subject to suppression as the "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488 (1963). In order for evidence to be considered a "fruit" of the illegality, however, there must nec essarily be a causal connection between the evidence the gov ernment is seeking to introduce and the relevant illegality. Put another way, suppression is appropriate only if "the chal lenged evidence is in some sense the product of illegal govern mental activity." United States v. Crews, 445 U.S. 463, 471 (1980). The test for determining whether evidence is the "fruit" of a prior illegality is whether it was "come at by ex ploitation of [the initial] illegality or instead by means suffi ciently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 488 (citation omitted); see Rawlings v. Kentucky, 448 U.S. 98, 106-110 (1980); United States v. Ceccolini, 435 U.S. 268, 274 (1978).3

As this Court's cases have made clear, evidence is not a "fruit" of a constitutional violation if it was, or inevitably would have been, obtained irrespective of the constitutional violation. As the Court explained in Murray v. United States:

[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or mis conduct had occurred. . . . When the challenged evi dence has an independent source, exclusion of such evi dence would put the police in a worse position than they would have been in absent any error or violation.

487 U.S. 533, 537 (1988) (emphasis added) (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)); see id. at 542 ("[W]hile the government should not profit from its illegal activity, nei ther should it be placed in a worse position than it would otherwise have occupied" absent the illegality.) (emphasis added). Thus, suppression is not appropriate when the Fourth Amendment violation does not place the government in any better position with regard to the discovery of evidence than it would have occupied if the police had complied with the Constitution. See id. at 541.

The Court has consistently applied the principles limit ing the fruits doctrine to bar the suppression of evidence when it has determined that the receipt of evidence was not "caused" by the particular illegality. In United States v. Crews, supra, a robbery victim identified her assailant after he was arrested without probable cause. The Court assumed that the post-arrest identification should be suppressed, but it refused to suppress the victim's later in-court identification of her assailant as the fruit of the defendant's illegal arrest. The Court noted that the victim came forward before the ar rest occurred, and therefore her presence at trial was not traceable to the Fourth Amendment violation. Suppression was inappropriate, the Court held, because "the Fourth Amendment violation * * * yielded nothing of evidentiary value that the police did not already have in their grasp." 445 U.S. at 475. The Court therefore found, as a threshold mat ter, that the in-court identification was not "'come at by exploi tation' of * * * the defendant's Fourth Amendment rights." Id. at 471 (quoting Wong Sun, 371 U.S. at 488).

In New York v. Harris, 495 U.S. 14 (1990), the Court relied on Crews to reach a similar result. The defendant in Harris was arrested in his home. The arresting officers had probable cause to arrest him, but they did not comply with Payton v. New York, 445 U.S. 573 (1980), which generally requires a warrant to arrest a suspect in his home. After be ing taken from his home, the defendant made an incriminating statement at the station house. The Court held that the station-house statement was not a fruit of the Payton viola tion. The Court noted that Harris was not "unlawfully in cus tody" while he was detained at the station house, because "the officers had probable cause to arrest [him] for a crime." 495 U.S. at 18. Emphasizing that the penalties imposed for offi cers' violation of the law "must bear some relation to the pur poses which the law is to serve," id. at 17 (quoting Ceccolini, 435 U.S. at 279), the Court concluded that Harris's station- house statement should not be suppressed because it was not "the fruit of having been arrested in the home rather than someplace else." Id. at 19.

The Court has at least twice applied related causation principles to refuse to suppress evidence seized under war rant. In Segura, supra, police illegally entered an apartment without a search warrant and stayed there for 19 hours secur ing the premises. The next day, the police obtained a valid warrant and searched the apartment, seizing evidence, includ ing narcotics. The Court noted that because the affidavit sup porting the search warrant contained no information deriving from the illegal entry, the illegal entry "did not contribute in any way to discovery of the evidence seized" and the evidence was not "the product of illegal governmental activity." 468 U.S. at 815 (quoting Crews, 445 U.S. at 471); id. at 814 (hold ing that "legality of the initial entry is * * * wholly irrele vant" to admissibility of evidence seized pursuant to a valid warrant).

Likewise, in Murray, supra, officers first observed evi dence during an illegal, warrantless entry into a warehouse. They later obtained a search warrant, searched the ware house, and obtained that evidence. The Court noted that the affidavit seeking the warrant had included no information gleaned during the initial entry, and that the decision to ob tain that warrant was unaffected by the illegal entry. As in Segura, the Court held that the evidence had an "independent source"-the search pursuant to the warrant-and deter mined that it should not be suppressed. "[W]hile the govern ment should not profit from its illegal activity," the Court emphasized, "neither should it be placed in a worse position than it would otherwise have occupied" absent the illegality. 487 U.S. at 542.

Finally, in Nix v. Williams, 467 U.S. 431 (1984), the Court declined to apply the exclusionary rule to suppress the body of a victim to which the police had been led through an improperly obtained statement of the defendant, when the body would have inevitably been discovered by a then-ongoing search. The Court emphasized that even if the discovery of evidence is "in some sense" a product of government activity, the exclusionary rule's purposes would not be served when the evidence would have been acquired any way by lawful means. Id. at 444-448 (quoting Crews, 445 U.S. at 471) (em phasis added in Nix).

While the various doctrines-inevitable discovery, inde pendent source, and the causation rules-describe different ways in which a violation should not lead to suppression, they all reflect the principle that suppression is too high a price to pay for a particular violation when the causal link between the violation and the acquisition of evidence is weak, non-existent, or irrelevant to exclusionary-rule policies. That is the case when, notwithstanding an antecedent violation, evidence is, or inevitably would have been, acquired pursuant to a valid and untainted search warrant.

2. A Premature Entry Is Not Causally Related To The Seizure Of Evidence Pursuant To The Warrant

Causation is equally lacking, and suppression inappro priate, where the sole defect in a warrant-authorized search is the failure of the police to comply with the knock-and-an nounce requirement. In such cases, it is not the premature or unannounced nature of the entry that leads to the discovery of evidence within a home. It is the fact that the police have a judicially authorized warrant supported by probable cause that authorizes them to seize that evidence. The seized evi dence is therefore not the "product" of the prior Fourth Amendment violation (the premature entry); rather, it is the product of the warrant-authorized search.

Under this Court's cases, the exclusionary rule should therefore not apply. There is no dispute in this case that the officers had the authority to search for and seize the evidence in question. The only complaint is about the manner in which they executed the warrant, i.e., by entering prematurely. Because the prematurity of the entry into petitioner's resi dence "did not contribute in any way to discovery of the evi dence seized under the warrant," not even the threshold "'but for' requirement" for the "fruits" doctrine was met in this case. Segura, 468 U.S. at 815 (citation omitted); see Harris, 495 U.S. at 19. Nor is there any dispute that had the police complied with the knock-and-announce requirement-had the illegality never occurred-the officers would have inevitably discovered the same evidence. See United States v. Langford, 314 F.3d 892, 894 (7th Cir. 2002) ("[I]t is hard to understand how the discovery of evidence inside a house could be any thing but 'inevitable' once the police arrive with a warrant.") (citation omitted), cert. denied 540 U.S. 1075 (2003). The con clusion that the evidence should not be suppressed thus fol lows both from this Court's cases-such as Crews, Harris, Segura, and Murray-requiring that the challenged evidence be shown to be a "product" of the illegality, and from the inevitable-discovery doctrine of Nix.

To exclude the evidence would "put the police in a worse position" than they would have occupied absent the knock- and-announce violation. Nix, 467 U.S. at 445.4 The interest of society in obtaining probative evidence in this context is particularly acute because, in cases involving knock-and-an nounce violations, the police by definition will have already obtained a search warrant from a neutral magistrate based on probable cause that a crime has been or is being committed, and will have carried out the command of that judicial warrant by searching for evidence of that criminal activity.5

Petitioner argues (Pet. Br. 22-27) that the independent- source and inevitable-discovery doctrines cannot save a warrant-authorized search that follows on the heels of a knock-and-announce violation because in such cases there is no wholly independent source for the seized evidence. It fol lows, he claims, that evidence seized during that search is the direct fruit of the illegal entry. He attempts to distinguish Segura and Murray on the ground that in those cases, there was one illegal search, followed by a second search that had both a legal warrant and a legal entry. Cf. United States v. Dice, 200 F.3d 978, 985 (6th Cir. 2000) (Murray and Segura "involved a second search pursuant to a valid warrant, and that second search was independent of the illegal initial search."); United States v. Marts, 986 F.2d 1216, 1220 (8th Cir. 1993) (same).

As an initial matter, petitioner is mistaken about Segura. Although that case involved two searches, it, like this case, involved only a single (and defective) entry. See 468 U.S. at 819 (Stevens, J., dissenting) (noting that the agents that had illegally entered and remained inside to secure the apartment conducted the warrant-authorized search once they were notified that the warrant had issued). Petitioner's argument that an unlawful entry necessarily taints any search conducted following that entry is therefore flatly inconsistent with Segura, which found the "legality of the initial entry" to be "wholly irrelevant" to the admissibility of evidence seized pursuant to a valid warrant. Id. at 814.

Petitioner's argument also misperceives the relevant inquiry. The warrant-authorized searches in both Segura and Murray provided an independent source for the seizure of the evidence because the warrants were not based on any infor mation acquired as a result of the initial illegal entries. But when the only alleged violation is a premature entry in the execution of a previously obtained, otherwise valid warrant, it is beyond dispute that the warrant is not based on any evi dence acquired as a result of the unlawful manner in which the officers gained entry. The facts concerning entry do not somehow work to deprive the warrant of its status as an inde pendent, untainted basis for the search. Thus, the previously issued warrant furnishes an independent basis for the search that cannot be tainted by the subsequent unreasonable entry. Petitioner's argument also fails to focus on the precise nature of the alleged violation. Although there was only one "search" of petitioner's home, the search itself-which was conducted pursuant to a valid warrant-was not unlawful. Nor was the entry into petitioner's home unauthorized. The only aspect of the police officers' conduct that was unlawful was their failure to wait for a brief additional period before entering, and petitioner makes no claim that the premature entry itself resulted in the discovery of any evidence.

It is more than a little anomalous to suggest that police, as in Segura and Murray, may validly seize evidence pursuant to an untainted warrant when the earlier illegality is the greater one of entering a residence in the absence of any war rant at all, but they may not validly seize evidence pursuant to an untainted warrant when the antecedent illegality is the lesser one of entering a few moments prematurely during the execution of a valid warrant. Neither precedent nor logic dictates such a result.

3. Violations Relating Only To The Manner Of Exe cuting Warrants Do Not Require Suppression Of All Evidence Seized During the Warrant-Autho rized Search

This and other courts have repeatedly indicated that suppression is not an appropriate remedy for every illegality that might occur in the manner in which officers execute a valid search warrant, especially where the Fourth Amend ment's regulation of the manner of the search reflects inter ests distinct from the privacy interest in the underlying seized items. For instance, in United States v. Ramirez, 523 U.S. 65 (1998), this Court implicitly recognized that the failure to execute a search warrant in a reasonable manner does not inevitably lead to the suppression of any evidence; rather, suppression is warranted only if the evidence seized is the product of the particular illegality. There, as part of their entry into the home, police executing a "no-knock" warrant to search for drugs and guns broke a garage window and aimed a gun through the opening in order to discourage anyone from gaining access to weapons the police believed might be in the garage. This Court rejected the court of appeals' conclusion that a higher level of exigency was required to justify a no- knock entry that results in such property damage. Id. at 71. But the Court did not hold that the police have carte blanche to destroy property during the execution of a warrant. Ob serving that the manner in which police execute a search war rant is governed by the "general touchstone of reasonableness which governs Fourth Amendment analysis," ibid., the Court stated: "Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression." Ibid. (emphasis added).6

Because the Court in Ramirez found that the officers in entering the premises had acted reasonably in breaking the garage window, the Court had no occasion to determine whether, if the officers had violated the Fourth Amendment in breaking the windows, the guns seized pursuant to the war rant should have been suppressed. The Court indicated, how ever, that suppression would not automatically follow as a result of such a Fourth Amendment violation, but rather would be warranted only if "there was sufficient causal rela tionship between the breaking of the window and the discov ery of the guns." 523 U.S. at 72 n.3. Cf. United States v. Folks, 236 F.3d 384 (7th Cir.) (holding that regardless of rea sonableness of using a distraction (flash-bang) device in con nection with entry and search of residence, evidence was ad missible because it inevitably would have been discovered during course of warrant-authorized search), cert. denied, 534 U.S. 830 (2001).

Similarly, in Wilson v. Layne, 526 U.S. 603 (1999), homeowners sued federal officers pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and state officers under 42 U.S.C. 1983, on the ground that the homeowners' Fourth Amendment rights were violated because police officers executing an arrest war rant at their home invited the media to accompany them. The Court held that such a "media ride-along" violated the Fourth Amendment but that the officers were entitled to the defense of qualified immunity because the law prohibiting such con duct was not clearly established at the time the search took place. In a footnote, the Court observed:

Even though such actions might violate the Fourth Amendment, if the police are lawfully present, the viola tion of the Fourth Amendment is the presence of the media and not the presence of the police in the home. We have no occasion here to decide whether the exclusionary rule would apply to any evidence discov ered or developed by the media representatives.

526 U.S. at 614 n.2 (emphasis added). Implicit in this lan guage is the recognition that evidence discovered by the police during the course of the arrest would not be subject to exclu sion because there was nothing illegal about their presence in the home and no impairment of the warrant; rather, only evi dence discovered or developed by the media would arguably be subject to exclusion, because it was their presence that violated the Fourth Amendment.7

In addition, the courts of appeals have consistently held that items seized pursuant to a valid warrant are not to be excluded from evidence merely because the officers conduct ing the search also seized items not specified in the warrant. See, e.g., United States v. Sears, 411 F.3d 1124, 1131 (9th Cir. 2005) ("Our case law on searches that exceed the terms of valid warrants also supports a remedy of partial suppression. 'Ordinarily, only evidence that is obtained in violation of a warrant is suppressed.'") (citation omitted); accord United States v. Hamie, 165 F.3d 80, 84 (1st Cir. 1999); United States v. Jones, 31 F.3d 1304, 1314 (4th Cir. 1994); United States v. Heldt, 668 F.2d 1238, 1259-1269 (D.C. Cir. 1981), cert. denied, 456 U.S. 926 (1982); United States v. Dunloy, 584 F.2d 6, 11 n.4 (2d Cir. 1978). And this Court has recognized the correct ness of those decisions. See Waller v. Georgia, 467 U.S. 39, 43-44 n.3 (1984) (noting that because all items unlawfully seized during a warrant search were suppressed, "there is certainly no requirement that lawfully seized evidence be suppressed as well").

The result should be no different when the only illegality that occurs during the execution of the warrant is the police's failure to wait a few additional moments after knocking and announcing before entering the premises. When such a pre mature entry is the relevant Fourth Amendment violation, the remedy must respond to the defect in the manner of entry, and suppression only makes sense to the extent that evidence is acquired as a direct consequence of the prematurity of entry-for example, an utterance by a suspect made as police enter but before they announce their identity that might not have been obtained by police had they announced their pres ence, or excited utterances prompted by an unannounced, premature, or forceful entry. The exclusionary rule does not, however, require suppression of the evidence seized pursuant to the warrant, because that evidence is not the fruit of the relevant Fourth Amendment violation.

Petitioner's Reliance On Cases Involving Searches Incident To Warrantless And Unlawful Arrests Is Misplaced

Petitioner mistakenly asserts (Pet. Br. 9-12) that this Court's decisions in Miller v. United States, 357 U.S. 301 (1958), and Sabbath v. United States, 391 U.S. 585 (1968), control the instant inquiry and require the suppression of evidence seized under a warrant following a knock-and-an nounce violation. In both of those cases, the police made warrantless entries into the defendants' homes in order to arrest them, without first announcing their presence and pur pose, in violation of the federal knock-and-announce statute, 18 U.S.C. 3109.8 Searches made incident to those arrests yielded contraband that was admitted into evidence at the defendants' trials. The Court held that the statutory viola tions rendered the arrests unlawful, requiring suppression of the evidence seized incident to the arrests. Miller, 357 U.S. at 313-314; Sabbath, 391 U.S. at 586.

As an initial matter, the Court's decisions in Miller and Sabbath were rendered at a time when the Court assumed that all federal violations of the law governing search and seizure required the suppression of all evidence seized. Since then, however, as explained above, see pp. 7-12, supra, the Court has made clear that, because of the high costs of the suppression of relevant and reliable evidence, the exclu sionary rule should be applied only to the extent necessary to effectuate its purposes and only to the extent that seized evi dence logically constitutes a fruit of a particular violation.

Moreover, the analysis employed by the Court in later cases demonstrates that a knock-and-announce violation, by itself, does not render an otherwise valid arrest illegal. Miller and Sabbath predated this Court's decision in Payton, supra, that a warrantless entry into a defendant's home to arrest him violated the Fourth Amendment. Rather, at the time Miller and Sabbath were decided, as the Court in Miller noted, the lawfulness of a warrantless arrest was governed by local law. In Miller, the local law governing warrantless arrests mir rored the requirements set forth in the federal knock-and- announce statute, 18 U.S.C. 3109; the search by federal offi cers in Sabbath was directly governed by 18 U.S.C. 3109. Because the Court found that the arrests in both cases did not comply with those requirements, it held that the warrantless arrests were illegal. After Payton, however, it is clear that if the police have a warrant, they may make a valid in-home arrest. A failure to comply with the knock-and-announce rule in that context would render unlawful only the manner of ef fecting entry; it would not render unlawful the arrest itself.

In any event, under contemporary doctrine as applied to the facts in Miller and Sabbath, the exclusion of evidence in those cases is consistent with the governing principle that the exclusionary rule should be applied only if the seized evidence constitutes a fruit of a particular violation. Because the offi cers in both Miller and Sabbath had no search warrant, the government sought to admit the evidence in question pursu ant to the search-incident-to-arrest doctrine. But, for evi dence to be admissible under that doctrine, it "must be the product of a search incident to a lawful arrest." Ker v. Cali fornia, 374 U.S. 23, 34 (1963) (emphasis added). Because the arrests in both Miller and Sabbath were illegal-under cur rent law, because of the lack of a warrant-the suppressed evidence could plainly be said to be the fruit or product of those unlawful arrests.9

The same, however, cannot be said of evidence seized pursuant to a valid search warrant following a failure to com ply with the knock-and-announce requirement. In that situa tion, the government is not seeking to introduce the evidence under a search-incident-to-arrest rationale, but as evidence seized pursuant to a valid warrant. The evidence is thus the fruit, not of an illegal arrest, but of a warrant authorizing its seizure.

B. The Court Should Not Abandon The Fundamental Re quirement Of Causation In Order To Increase Deter rence Of Knock-And-Announce Violations

Petitioner contends (Pet. Br. 34-42) that, notwithstand ing the well-established limitations on the exclusionary rule discussed above, suppression is necessary in this context in order to deter police from violating the knock-and-announce rule. According to petitioner, absent the remedy of suppres sion, police officers would routinely violate the knock-and- announce rule with impunity. Petitioner is mistaken.

1. Petitioner's premise-that knock-and-announce viola tions will never lead to the exclusion of evidence-is flawed: suppression remains available under settled remedial princi ples where the discovery of evidence is the product of the prematurity of the entry. For example, if the police enter without announcing their identity and purpose, someone in side might make an incriminating statement that he would not have made had he known that it was the police entering his home. Similarly, an immediate forcible entry might startle an incriminating statement from an occupant. See Marts, 986 F.2d at 1222 (Fagg, J., dissenting) (In the absence of an exclusionary remedy, police officers still have an incentive to comply with the knock-and-announce rule because they "know that any evidence seized as a direct result of the entry may be suppressed. * * * [O]fficers armed with a search warrant would be foolhardy to enter early in violation of [the knock- and-announce rule] because they have no way of knowing what they will see, hear, or learn when they enter."); accord People v. Murphy, 13 Cal. Rptr. 3d 269, 298-299 (Ct. App. 2004) (Benke, Acting P.J., dissenting) (noting situations in which evidence could be fruit of premature entry), review granted, 16 Cal. Rptr. 3d 330 (2004).

Petitioner's argument that absent the remedy of sup pression the police will routinely ignore the knock-and-an nounce rule also rests on the flawed assumption that the po lice will deliberately violate this Court's decisions interpreting the Constitution. That assumption of bad faith is unwar ranted, particularly in light of the practicalities of the situa tion. When police arrive at a residence to execute a search warrant, the magistrate has already authorized the seizure of the items named in the warrant. Where the police have no reason to fear that anyone inside will respond with violence, the destruction of evidence, or an escape attempt, the police have ample incentives to announce their identity and purpose and wait for an occupant to come to the door to admit them: after all, an unannounced entry runs the very real risk that the occupants will take violent defensive action based on the mistaken assumption that the entering parties are criminal intruders. Indeed, this is one of the principal interests fur thered by the knock-and-announce rule. See Sabbath, 391 U.S. at 589; Miller, 357 U.S. at 313 n.12.

Moreover, expansive application of the exclusionary rule in this context would risk overdeterrence. Underlying most failures to comply with the knock-and-announce rule is the officers' concern that substantial delay after announcement would endanger their safety or enable the suspects to destroy evidence or escape. See Kemal Alexander Mericli, The Appre hension of Peril Exception to the Knock and Announce Rule-Part I, 16 Search and Seizure L. Rep. 129, 129-130 (July 1989). Ensuring officer safety and preserving the very evidence whose seizure the warrant authorizes are plainly important and wholly legitimate law enforcement objectives. Dispensing with the requirement of causation and suppress ing all the evidence found in the warrant-authorized search whenever officers' on-the-spot judgments miscalculate the exigencies of the situation might induce police officers to be unduly cautious in assessing how best to execute the warrant, at the possible expense of their safety and the preservation of the evidence to be seized under the warrant. See Gates, 462 U.S. at 258 ("It would be surprising if the suppression of evi dence garnered in good faith, but by means later found to violate the Fourth Amendment, did not deter legitimate as well as unlawful police activities. To the extent the [exclusionary] rule operates to discourage police from reason able and proper investigative actions, it hinders the solution and even the prevention of crime.") (White, J., concurring in the judgment).

2. It is true that this Court has concluded that criminal remedies are inadequate as the sole means of safeguarding Fourth Amendment requirements. See Mapp, 367 U.S. at 651-653. Nevertheless, it is not irrelevant that, in addition to criminal remedies, judicial remedies for constitutional viola tions may be available through claims under 42 U.S.C. 1983 and the doctrine of Bivens, 403 U.S. at 397. See Segura, 468 U.S. at 812; see also Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) ("The purpose of Bivens is to deter individ ual federal officers from committing constitutional violations" and "the threat of litigation and liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity."); Langford, 314 F.3d at 894-895; United States v. Sutton, 336 F.3d 550, 552-553 (7th Cir. 2003). There are also non-judicial remedies that will continue to de ter law enforcement officers from violating the knock-and- announce rule, such as the possibility of departmental disci pline. See Nix, 467 U.S. at 446 ("Significant disincentives to obtaining evidence illegally-including the possibility of de partmental discipline and civil liability-also lessen the likeli hood that the ultimate or inevitable discovery exception will promote police misconduct.") (citing Bivens, 403 U.S. at 397); United States v. Payner, 447 U.S. 727, 733-734 n.5 (1980) (re fusing to assume that "lawless conduct, if brought to the at tention of responsible officials, would not be dealt with appro priately" and concluding that "[t]o require in addition [to gov ernment discipline] the suppression of highly probative evi dence * * * would penalize society unnecessarily").

But even if petitioner were correct about the role of the exclusionary rule in deterring knock-and-announce violations, that would not justify departing from the universal require ment of causation. This Court has never placed deterrence concerns above all others in administering the exclusionary rule, but has instead balanced the rule's costs in a given situa tion against its deterrent effect. See Payner, 447 U.S. at 734. That approach has left some violations in certain instances undeterred. Thus, violations of the constitutional rights of one person that produce useful evidence only against other persons fall outside the scope of the rule, even though expan sion of the exclusionary remedy to reach such violations could have additional deterrent effect. Alderman v. United States, 394 U.S. 165, 171-176 (1969); Rakas v. Illinois, 439 U.S. 128, 133-134 (1978); United States v. Salvucci, 448 U.S. 83, 95 (1980). Likewise, constitutional violations that produce evi dence that independently is, or inevitably would have been, discovered anyway should not, the Court has held, result in the exclusion of that evidence. See Murray, 487 U.S. at 536- 541; Nix, 467 U.S. at 444; see also id. at 452, 456-457 (Stevens, J., concurring in the judgment); id. at 459 (Brennan, J., dis senting). And the Court has applied the independent-source doctrine over the objection of dissenters that it would provide "an affirmative incentive to engage in unconstitutional viola tions of the privacy of the home." Segura, 468 U.S. at 817 (Stevens, J., dissenting); see Murray, 487 U.S. at 551 (Mar shall, J., dissenting) (independent-source rule provides "an intolerable incentive for warrantless searches"). Indeed, it could be argued that officers who have initiated the process of obtaining a warrant based on existing information have no incentive to refrain from an immediate warrantless entry of the premises to be searched: if the warrant issues, the evi dence would be admitted under the independent-source doc trine. Yet the Court's independent-source jurisprudence re jects this line of argument. See Murray, 487 U.S. at 539-540.

The same reasoning applies with particular force where the violation does not relate to the authority of the officers to conduct the search, but rather only to the manner in which they executed it. When the illegality relates to the authority of the police to search for and seize particular evidence, there is a direct connection between the exclusionary rule, which denies the government the opportunity to exploit the inappro priately seized evidence against a defendant in a criminal trial, and the constitutional violation itself-the right of the defendant to keep his personal items secure from precisely such government search and seizure. But where, as here, the illegality relates only to the manner of executing a lawful warrant and there is no doubt as to the government's author ity to seize and use the evidence in question, there is a poor fit between the remedy of suppression and the interests pro tected by the right violated. The knock-and-announce rule does not protect an individual from having the government search for and seize personal items that are covered by a valid warrant. It protects only interests in the way in which entry is achieved to conduct the search and seizure. There is there fore a logical disconnect between the nature of the violation and the extent of suppression sought. Suppression of evi dence covered by a valid warrant because of a knock-and-an nounce violation makes no more sense than remedying a tech nical defect in an overbroad warrant by forcing the officers to pay for a door broken down when exigent circumstances justi fied the use of force. There are distinct Fourth Amendment interests and violations, and a suppression remedy that is appropriate when the underlying search is defective is dispro portionate when the only Fourth Amendment problem is in the manner of entry. That disproportionality argues strongly against imposing on society "the considerable harm that would flow from indiscriminate application of an exclusionary rule." Payner, 447 U.S. at 734.10

C. Suppression Is A Disproportionately Severe Remedy On The Facts Of This Case

Exclusion of all the evidence seized pursuant to the war rant would be an especially harsh remedy given the nature of the violation in this case. The officers loudly announced their identity and their purpose before entering. They accom plished the entry by turning the knob and opening the door, causing no damage to any of petitioner's property. Plainly, then, the manner in which they entered fully protected two of the interests furthered by the knock-and-announce rule: safe guarding law enforcement officers from being mistaken as unlawful intruders, thus lessening the potential for violence, and avoiding needless property damage.

The knock-and-announce rule also serves the purpose of giving occupants the opportunity to prepare themselves for the entry. As the Court observed in Richards v. Wisconsin, 520 U.S. at 393 n.5, "[t]he brief interlude between announce ment and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed." Here, however, the immediate entry did not catch petitioner in an intimate or compromising moment. Rather, the officers im mediately saw petitioner as they entered the house, sitting in a living room chair. Accordingly, given that the warrant au thorized the far greater invasion of petitioner's privacy, the invasion into petitioner's privacy occasioned by the immediate entry in this case was minimal. See United States v. Espinoza, 256 F.3d 718, 725 (7th Cir. 2001) ("[T]he exclu sionary rule should be limited only to those instances where the constitutional violation has caused actual harm to the in terest * * * that the rights protect.") (internal quotation marks omitted), cert. denied, 534 U.S. 1105 (2002); People v. Murphy, 13 Cal. Rptr. 3d at 296 (Benke, Acting P.J., dissent ing) ("[T]he right of privacy in this context is a limited one. In every announcement case the officers have the right to enter. Admittance may not be refused. As we use the term 'privacy' in such cases, the right is less ethereal and more practical, i.e., allowing occupants to get out of bed or get dressed and thus see who is at the door.").

Where, as here, officers with a valid warrant have an nounced their presence and purpose, and the knock-and-an nounce violation consists solely of their having entered the residence a few seconds early, society's vital interest in com bating crime should not be sacrificed by application of the exclusionary rule. As the Court observed in Stone v. Powell: "The disparity in particular cases between the error commit ted by the police officer and the windfall afforded a guilty defendant by application of the [exclusionary] rule is contrary to the idea of proportionality that is essential to the concept of justice." 428 U.S. 465, 490 (1976).


The judgment of the Michigan Supreme Court should be affirmed.

Respectfully submitted.


Solicitor General

Assistant Attorney General

Deputy Solicitor General

Assistant to the Solicitor




1 Wilson made clear that the knock-and-announce principle is not an absolute requirement, but may be overcome by "countervailing law enforce ment interests." 514 U.S. at 934; id. at 935-936 (noting "presumption in favor of announcement" could be overcome where, inter alia, officers face "a threat of physical violence" or "have reason to believe that evidence would likely be destroyed if advance notice were given"); accord Richards, 520 U.S. at 394; Ramirez, 523 U.S. at 67-68 (applying Richards's reasonable-suspicion standard to cases where no-knock entry results in property destruction).

2 The Court has recognized, for example, that there is a compelling "public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U.S. 165, 175 (1969); see United States v. Payner, 447 U.S. 727, 734 (1980) ("Our cases have consistently recognized that unbending appli cation of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury."). The exclusionary rule, if not properly limited, threatens to undermine this in terest by allowing "[t]he criminal * * * to go free because the constable has blundered." Nix v. Williams, 467 U.S. 431, 447 (1984). It also can give rise to a public perception of unfairness that can have the "effect of generating disre spect for the law and administration of justice." Stone v. Powell, 428 U.S. 465, 491 (1976). See generally United States v. Leon, 468 U.S. 897, 907-908 (1984); Illinois v. Gates, 462 U.S. at 254-261 (White, J., concurring in the judgment).

3 Petitioner mistakenly asserts (Pet. Br. 11) that Wong Sun and Silver thorne Lumber Co. v. United States, 251 U.S. 385, 390-392 (1920), stand for the proposition that "any kind of evidence found inside private premises following a police entry that is illegal for any reason is inadmissible." Those decisions stand only for the familiar principle that the direct and indirect fruits of an illegal arrest or search should be suppressed when they bear a sufficiently close causal connection to the underlying illegality. Wong Sun treated as an "illegal arrest" one in which the police lacked probable cause to detain the suspect; Silverthorne treated as an "illegal search" one in which the police searched the defendant's home in the absence of a warrant. In both cases, evidence acquired as a result of the illegal arrest (Wong Sun) and illegal search (Silverthorne), was a "fruit" of the illegality. In this case, by contrast, the entry and search were made pursuant to a warrant and thus were not "illegal" in the sense used by either of those cases.

4 Petitioner argues (Pet. Br. 27-34) that the Michigan Supreme Court inter preted the "worse position" language in Nix in a fashion that would eviscerate the exclusionary rule, because it would allow the police-in any case in which probable cause existed-to argue that the evidence would have inevitably been discovered if they had behaved lawfully. But that reading of Nix is not required in order to conclude that it is the pre-existing judicial warrant that commanded the officers to search that made the discovery of the contraband inevitable once the officers arrived to execute the warrant. Even though the officers retained discretion in executing the warrant, see Town of Castle Rock v. Gonzales, 125 S. Ct. 2796, 2808 (2005), the warrant itself represents a judicial directive to search the premises, see Mich. Comp. Laws Ann. § 780.654 (West 1998) (requiring that "search warrant shall be directed to the sheriff or any peace officer, commanding such officer to search the house, building, or other location or place, where any property or other thing for which he is required to search is believed to be concealed") (emphasis added). Cf. Fed. R. Crim. P. 41(e)(2) (stating that "warrant must command the officer to * * * execute the warrant").

5 It is possible, of course, that had the officers in this case not made a pre mature entry after announcing their presence and purpose, persons inside the home who were alerted to the arrival of the police might have destroyed the drugs during the brief interval between the officers' announcement and their entry into petitioner's home. Petitioner does not rely upon that possibility as a basis for arguing that the evidence seized pursuant to the warrant was the "fruit" of the early entry, nor could he. In Segura, this Court rejected the analogous claim that, because Segura could have destroyed drug evidence during the hours that the police unlawfully secured his apartment from the inside, the unlawful entry caused discovery of the evidence. The premise of that claim, the Court stated, "is that there is some 'constitutional right' to destroy evidence. This concept defies both logic and common sense." 468 U.S. at 816.

6 Petitioner argues (Pet. Br. 14) that, in making the observation that prop erty destruction during the execution of a search warrant may violate the Fourth Amendment "even though the entry itself is lawful and the fruits of the search are not subject to suppression," the Ramirez Court was making a distinction, for purposes of the exclusionary rule, between unreasonable police conduct during the execution of a warrant and unreasonable police conduct while obtaining entry to execute the warrant. He suggests that if the police obtain entry in an unreasonable manner, everything seized during the sub sequent search is subject to exclusion. But that reading of Ramirez is not sustainable. The point the Court was making was that if the police have a law ful right to enter-because they have a search warrant-evidence seized pur suant to the warrant is not subject to exclusion even though the police damage more property than was reasonably necessary in order to effectuate the entry and conduct the search. After all, the destruction of property at issue in Ramirez occurred during the entry.

7 At least one court has interpreted the footnote in this fashion. See United States v. Hendrixson, 234 F.3d 494, 496 (11th Cir. 2000) (relying on Wilson to hold that presence of media during execution of search warrant violated Fourth Amendment, but that evidence discovered by police was not subject to suppression), cert. denied, 534 U.S. 955 and 956 (2001).

8 Section 3109 states: "The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant." The Court has noted that read literally the statute "prohibits nothing," but assumed arguendo in Ramirez that "the statute implicitly forbids some of what it does not expressly permit." 523 U.S. at 72. Likewise, although the statute refers only to search warrants, its criteria have been applied as well to the execution of arrest warrants. Sabbath, 391 U.S. at 588-589; Miller, 357 U.S. at 306; Wong Sun, 371 U.S. at 482-484.

9 This Court's decision in Ker, which also pre-dates Payton, is to the same effect. There, the Court upheld the admission of evidence seized by state officers following the warrantless arrests of the defendants inside their home. As in Miller and Sabbath, the admissibility of the evidence depended on whether it was the "product of a search incident to a lawful arrest, since the officers had no search warrant." As in Miller and Sabbath, the plurality in Ker looked to state law to determine the lawfulness of the warrantless arrests. 374 U.S. at 37-38. Because California's statute permitted officers to enter a home without notice when exigent circumstances were present, and the plurality found such exigent circumstances were present in that case, it found the arrests to be lawful under both California law and reasonable under Fourth Amendment standards. Accordingly, the searches were lawful because they were incident to lawful arrests. Id. at 38-43.

10 Petitioner suggests (Pet. Br. 40-42) that application of the inevitable dis covery exception in this context would hinder development of Fourth Amend ment law because courts generally would have no occasion to decide whether particular police conduct violated the knock-and-announce rule. The Court in Leon addressed a similar concern about application of the good-faith exception to the exclusionary rule by noting that "[t]here is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct mani fested objective good faith before turning to the question whether the Fourth Amendment has been violated." 468 U.S. at 924. Rather, "[i]f the resolution of a particular Fourth Amendment question is necessary to guide future action by law enforcement officers and magistrates, nothing will prevent reviewing courts from deciding that question before turning to the good-faith issue." Id. at 925. Nothing would prohibit the courts from exercising a similar discretion in knock-and-announce cases.

Merits Stage Amicus Brief
Updated October 21, 2014