Tuesday, September 25, 2007


United States v. Acosta, Docket No. 05-1283-cr (2d Cir. September 5, 2007) (Pooler, Parker, Wesley, CJJ)

Last term, the United States Supreme Court held that the exclusionary rule does not apply to violations of the Fourth Amendment’s “knock-and-announce” rule. Hudson v. Michigan, 126 S.Ct. 2169 (2006). Here, the Circuit, unsurprisingly, holds that the same is true for violations of the knock and announce statute, 18 U.S.C. § 3109.

It is almost too sad to blog, but here, in brief, is the court’s reasoning. Both § 3109 and the Fourth Amendment’s knock-and-announce principle “share the same common law roots, overlap in scope, and protect the same interests, which necessitates similar results in terms of the exclusionary rule’s application.” Moreover, a civil remedy is available; a citizen can file a Bivens action. This, according to the Circuit, is an adequate deterrent to federal agents who might contemplate violating the knock-and-announce statute.

However pathetic this decision is, we really have to blame the Bush Supreme Court for it, and not the Circuit. The Bush court simply loves making categorical rules that cut off entire branches of Fourth Amendment relief, and Hudson is not the only example. Samson v. California, 126 S.Ct. 2193 (2006), ended all Fourth Amendment protection for parolees. Expect more like this in the future, folks, for that is surely the trend.

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