As policing has militarized to fight a faltering war on drugs, few tactics have proved as dangerous as the use of forcible-entry raids to serve narcotics search warrants, which regularly introduce staggering levels of violence into missions that might be accomplished through patient stakeouts or simple knocks at the door.
Thousands of times a year, these “dynamic entry” raids exploit the element of surprise to effect seizures and arrests of neighborhood drug dealers. But they have also led time and again to avoidable deaths, gruesome injuries, demolished property, enduring trauma, blackened reputations and multimillion-dollar legal settlements at taxpayer expense, an investigation by The New York Times found.Watch this NYT's video.
For a time, under Wislon v. Arkansas and Richards v. Wisconsin, an unreasonable no-knock search warrant execution was subject to the exclusionary rule. Then came Justice Scalia in Hudson v. Michigan. Sure, a no-knock warrant could be unreasonable under the Fourth Amendment but this was not sufficient to trigger the exclusionary rule; other deterrents, such section 1983 civil actions, would suffice. With Hudson, decided in 2006, Fourth Amendment challenges to search warrant executions in criminal cases all but died. Meanwhile, the the no-knock executions described in the Times articles continue. Between 2010 and 2016, 13 police officers have died during forced-entry warrant executions; 81 civilians were killed.
Hudson was one of the first major blows to the exclusionary rule. More recently, Utah v. Strieff took a swipe at the judicially-crafted remedy: "[E]ven when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression."
Hudson was implicitly limited to search warrants. But what about arrest warrants? Does the exclusionary rule still apply to no-knock police home invasions executing an arrest warrant? At least one Circuit court says yes. In United States v. Weaver, 808 F.3d 26 (D.C. Cir. 2015), the court made this distinction:
An individual subject to an arrest warrant accordingly retains a robust privacy interest in the home's interior. That privacy interest is protected by requiring law enforcement officers executing an arrest warrant to knock, announce their identity and purpose, and provide the arrestee with the opportunity to come to the door before they barge in. And, where evidence is obtained because officers violated the knock-and-announce rule in executing an arrest warrant at the arrestee's home, the exclusionary rule retains its remedial force. Under Hudson's own analytic approach, then, exclusion of the evidence may be an appropriate remedy. Id. at 31.The same is true for night-time search warrant executions. Fourth Amendment challenges are difficult but not foreclosed. As the Eighth Circuit noted in 2011, “[a]lthough this constitutional issue has received surprisingly little attention in numerous night-time search decisions, we have little doubt that in some circumstances an officer’s night-time entry into a home might be unreasonable under the Fourth Amendment.” United States v. Kelley, 652 F.3d 915 (8th Cir. 2011).
For more, see Lafave, SEARCH AND SEIZURE, § 1.6 The exclusionary rule in criminal proceedings (2015) (“Hudson is dead wrong.”) and 51 Santa Clara L. Rev. 545 (2011), Dangerous Criminals, the Search for the Truth and Effective Law Enforcement: How the Supreme Court Overestimates the Social Costs of the Exclusionary Rule.