Hudson v. Michigan

Ken AshfordSupreme CourtLeave a Comment

Like many, I haven’t read the SCOTUS opinion regarding the knock-and-announce case, but I’ve read intelligent summaries.  My view of it mirror that of Glenn Reynolds, with whom I usually disagree:

I think, though, that it’s defensible legally, but not morally. That is, it’s not much of a stretch from the existing caselaw, but it produces a rule that seems inconsistent with the original meaning of the constitution, and common sense.

However, the exclusionary rule is a lousy remedy for these kinds of things, since it doesn’t protect those innocent of any crime. (If you’re innocent, there’s nothing to exclude). I’d rather see a rule that disciplines officers for improper behavior without regard to the exclusion of evidence.

A tip of the hat to Professor Kerr, who wryly notes that Scalia is a doctrinal hypocrite, quite willing to argue (in essence) that the Constitution is "living", while taking contrary positions at other times.  I’ve been saying that for years.