Monday, June 19, 2006

"No Knock" - In Through the Back Door

As if we needed further proof that an "activist judiciary" is in the eye of the beholder --

It was, I think, unseemly at the least for the Right to continue railing against "activist judges" after an activist Supreme Court for the first time in American history ordered a state not to recount ballots in a presidential election, thus installing the first-term Bush administration, despite the subsequently confirmed fact that Bush had lost the Florida vote. It has been a far more than unseemly spectacle to see the Right universally condemning an activist judiciary as part of the campaign to save our marriages from gay couples while they were at the same time seeking activist judicial intervention on behalf of their own long-held goals.

Which brings us to "no knock."

Conservative political figures have long had our constitutional protections against unreasonable search and seizure on their target list. Much of the talk of radical and activist judges dates to the
era of the Miranda decision. One of the favorite measures conservative politicians came up with to counter the Supreme Court's protection of our Bill of Rights was the "No Knock" law.

The idea was as simple as its name. Congress would pass a crime bill that would provide for the issuance of "no knock" warrants, allowing police to dispense with the traditionally required "knock and announce" procedure when executing a search warrant. Presidents from Nixon to Reagan to Bush, of course, have been known to dispense with warrants all together, authorizing "black bag" jobs against those who have opposed their policies.

Nixon, who frequently sought to use the Distirct of Columbia as a testng ground for laws that couldn't be applied elsewhere without serious political consequences, sought several times to get Congress to pass a "no knock" provision for D.C. as part of various Omnibus Crime Bills. The residents of D.C., having no voting representation in Congress, are especially vulnerable to this sort of poltical gaming, but Nixon failed. He didn't enoy the Republican control of all branches of government that Bush has been able to take advantage of.

But the Right has now achieved its long-standing goal by non-legislative means. The Supreme Court, in what can only be viewed as a most serious attack on the exclusionary rule, has held that evidence obtained illegally by officers who do not "knock and announce" may still be admissable in court. It will not be long before such illegally obtained evidence is used against someone who is not, as in the case before the Supreme Court, a drug dealer. It will not be long before the "failure to knock and announce" will become unspoken policy.

The court majority reasoned that the usual operations of the exclusionary rule could be suspended because victims of no knock searches have other recourse, such as civil suits against the police. That may be true if you're a congressman whose office is violated; it is considerably less viable an option for the more poltically and economically vulnerable members of our society.

"Knock and announce" requirements serve an important function; they work toward the "reasonableness" of search and seizure. The exclusionary rule was really the only thing that stood to enforce even that fragile protection, and now the Supreme Court majority has shredded it.

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