The Battle of Hudson Heights
A small case may portend big changes to the exclusionary rule.
Another front in the culture wars heated up last week as the proper scope of the exclusionary rule and the central purposes of the Fourth Amendment were debated anew by the Supreme Court in the case of Hudson v. Michigan.
The immediate battleground—the precise fact pattern at issue in Hudson—is but a speck on the vast map of American constitutional law. Yet given the precise location of this battleground and the particular tactics of the justices in struggling over it, Hudson may be seen one day as a decisive crossroads. Essentially, the judicial battle of Hudson Heights involved a fierce contest for high conceptual ground, and the victors have now secured a strong base for further action that could broadly reshape the lines of the exclusionary rule.
First the facts: The cops in Hudson had a search warrant authorizing them to enter a house and look for drugs and guns. They found both. But the way they entered the house was constitutionally improper. Instead of waiting a reasonable period (say, 20 seconds) after announcing their presence at the front door—as generally required under long-standing Anglo-American tradition and modern Fourth Amendment doctrine—the police simply announced themselves, opened the (unlocked) door, and began searching. They found lots of cocaine, later introduced as evidence to convict the homeowner of drug possession.
Led by Justice Stephen Breyer, four dissenters found this a textbook case for exclusion: The police violated the Fourth Amendment, so the drugs must be suppressed and the guilty man must go free. Next case.
Not so fast, said five justices on the other side, led by Justice Antonin Scalia. Although the Fourth Amendment was violated, this violation made absolutely no difference so far as the drugs were concerned. Had the cops properly waited an extra 20 seconds they still would have found the cocaine.
To this, Breyer responded with an ultrastrict version of coulda, woulda, shoulda. It is not enough, he said, that the government could have found the drugs in a lawful search. Generally, the government must in fact find the drugs in a perfectly valid search wholly independent of the tainted search.
But as the Scalia Five emphasized, the Hudson cops did in fact have a valid search warrant that authorized the successful drug search—even if the warrant didn't authorize the earlier overhasty entrance. Nothing in law or logic requires that judges must always lump together the improper entrance and the otherwise proper search, rather than treating these as two independent events. For example, if the warrant had authorized only a search of the house, and the cops instead searched both the house and a nearby barn, why should drugs found in the house be excluded just because the barn search was invalid? Why shouldn't only the stuff found in the barn be suppressed in court?
The Scalia Five also stressed that the Supreme Court's previous case law, which Breyer claimed was the source of his ultrastrict test, is actually a mixed bag of rules and exceptions. One exception to the exclusionary rule is called "inevitable discovery" and as its very label makes clear, the test is whether a piece of evidence "would have" inevitably come to light in a lawful search. Nor have previous court opinions consistently read this test in the superstrict way Breyer was now urging.
But Breyer was right to observe that, if aggressively applied, the "inevitable discovery" doctrine could outflank the exclusionary rule in a wide range of cases. With Hudson on the books, state and federal prosecutors should now try to find the Next Perfect Test Case, which would look something like this: The cops have very good reasons (what lawyers call "probable cause") to conduct a given search and thus the police could easily get a warrant from a judge. But they decline to get the warrant because they reasonably—though it turns out erroneously—believe that the facts fall into one of the umpteen categories for which the court has said that warrants are not required. Armed with probable cause and good faith (but no warrant), the cops search and find a smoking gun or a bloody knife—proof positive of a violent crime.
Similar cases have come before the court previously, and the justices have at times mindlessly suppressed the evidence. But none of the court's past cases has squarely addressed the strong argument of inevitable discovery (combined with police good faith). With Hudson now on the books clarifying the scope and logic of inevitable discovery, the government can argue in our Perfect Test Case as follows: "The cops could have easily gotten a warrant and surely would have done so, had they only better understood often-complex court doctrine. Because the cops acted in good faith and because the evidence would have been found if the cops had strictly complied with the Fourth Amendment—a warrant would inevitably have been issued, had it been sought—the case should be treated just like Hudson."
Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.
Illustration by Mark Alan Stamaty.