Last week, in Hudson v. Michigan, the new composition of the Supreme Court revealed its hostility to the century-old exclusionary rule, which prevents illegally-obtained evidence from being introduced against a criminal defendant. In 1914, in Weeks v. US, the Supreme Court said that, without the sanction of exclusion, the Fourth Amendment “might as well be stricken from the Constitution,” because to accept evidence obtained without a valid warrant “would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.”
Booker T. Hudson complained that his conviction for drug possession was invalid because the Detroit police did not knock and announce their presence before barging into his home, as required by law. The US Supreme Court said that the “3 to 5 seconds” the police waited was fine with them and that the exclusionary rule should not apply to suppress the evidence found within.
New York State has its own exclusionary rule, so we are not directly affected by Nino Scalia’s opinion. But New York does have a dangerous affection for what are called “No Knock” warrants. Before other states scale down the time they wait before using a battering ram, they should consider what happened to Alberta Spruill.
Ms. Spruill was a 57-year-old city employee who died of a heart attack in May 2003 after police, acting on a bad tip, threw a concussion grenade into her apartment on W. 143rd St. Police had an affidavit from a confidential informant that a crack dealer lived in her apartment. They did not go to her building prior to raiding it with 12 men at 6:10 AM. They did not check with the Department of Corrections, who would have told them the man they sought was already in custody.
Ms. Spruill was not the only victim of an erroneous address, but she is the only fatality we know of in New York City. Mayor Bloomberg and Commissioner Ray Kelly immediately apologized for the death, which was ruled a homicide. Ms. Spruill’s family won $1.6 million in damages, but no one has ever been prosecuted for her death.
New York permits “No Knock” warrants to be issued upon a sworn statement that the police are looking for drugs or guns (usually drugs). “No Knock” warrants are supposed to be used only in extraordinary circumstances where there is risk that people will be hurt or evidence destroyed. But judges issue them routinely. In hearings held by the City Council after her death, Ray Kelly said that, of 13,000 search warrants obtained by police in the past two years, a majority were “No Knock” warrants. He admitted that, in ten percent of the cases, no contraband was found. In the first four months of 2003, police executed 1,900 search warrants and went to the wrong address four times. They used the “flash and bang” grenades 85 times in that period.
The Legal Aid Society proposed legislation in the City Council that the NYPD gather, record, and publish statistics about its use of “No Knock” warrants, so that the public can monitor the criminal justice system. Such a bill was introduced with 16 sponsors in 2003, but it was referred to the public safety committee where it died, never to be reintroduced. The police now require that the use of a stun grenade be approved by departmental officials and supposedly began a program to track the results of warrants. But similar policies existed on paper at the time of the Spruill raid.
It is the ease of ignoring written directives that makes the exclusionary rule so necessary. Short of grievous physical injury and demonstrable innocence, most victims of illegal police searches receive no damages for the violation of their civil rights. This is exactly what Scalia chose to ignore when he said “times have changed” and that the exclusionary rule is no longer necessary. The “knock and announce” rule didn’t just serve the right not to be arrested in your pajamas. It protected the public from lies by confidential informants, inadequate police investigations, inter-agency miscommunication, and outdated information. “No Knock” warrants only serve to increase the dangers to the public and to officers in the line of duty, and they should be issued sparingly, if at all.
Ann M. Schneider is a member of the National Lawyers Guild.