United States v. Michael Weaver

for contraception access regu- facilitating to federal required current the form employees. organizations’ the lations.12 clarity: The Govern note One final require to course continue may

ment of provide

religious organizations’ insurers or religious coverage

contraceptive if the reli employees, even

ganizations’ object. Judge As

gious organizations “RFRA does correctly explained, Flaum America, Appellee of UNITED STATES religious organizations not authorize v. third- independent actions of dictate WEAVER, Anthony Appellant. Michael sincerely organization if the even parties, No University them.” disagrees with of No. 13-3097. Sebelius, 743 F.3d tre Dame Appeals, of United States Court (7th Cir.2014) J., (Flaum, dissenting), va District of Columbia Circuit. — remanded, -, cated and (2015). “That 191 L.Ed.2d Argued Feb. third-party gov true whether 4, 2015. Sept. Decided student, insurer, some ernment, an or govern long Id. other actor.” “So require” religious organiza

ment does not action, RFRA “to take

tions themselves give” religious organizations

does right prevent

“a contraceptives religious to” the

providing employees. Id.

organizations’ sum, respectfully grant re-

In I would

hearing plaintiff rule for the en banc and ground

religious organizations on College/Little Sisters

the Wheaton than way restrictive

Poor notice is less the Gov- currently mandated form for compelling interest

ernment to achieve its noted, Hobby Lobby say funding least did not that direct was the 12. As the Court pro- directly furthering Government could subsidize restrictive means of the Govern- employees religious contraceptives had, vide If then even the ment’s interest. Hobby Lobby, non-profit organizations. See College/Little no- Wheaton Sisters the Poor funding 134 S.Ct. at 2780-81. The direct any be restrictive. tice would itself too feasibility option A certain issues. raises event, present matters case is what reasonably way of not a means that is feasible College/LittleSisters the Poor the Wheaton furthering the interest cannot Government’s re- notice restrictive than the form is less a less means of further- deemed restrictive regulations quired by current but federal Poor, ing In Little Sisters that interest. achieves the Government's interest. still Hobby Lobby, College,the Court and Wheaton requires rule

The knock-and-announce that, executing a before officers home, they knock on the enter a door identity purpose, their forcibly time before then wait reasonable entering. Court that, that rule held when officers violate warrant, executing a search exclusion find they appropri is not remedy. that the ate The Court reasoned the evi officers would discovered went any dence event when authority under the through house warrant. As the valid search the knock-and-announce emphasized, Dyer, Assistant Federal Pub- Beverly G. any pre “interest in protected” “has never Defender, the cause for argued appel- lic venting seeing lant. her on briefs was A.J. With in a warrant.” taking evidence described Kramer, Tony Federal Public Defender. Id. at 126 S.Ct. 2159. Where officers Jr., Axam, Public De- Assistant Federal judi awith search warrant have a armed fender, appearance. entered an prerogative to the cially-sanctioned invade home, privacy of the the knock-and-an Heffernan, A. At- Patricia Assistant U.S. the nounce violation does not cause seizure argued appellee. the cause for torney, context, disputed In that evidence. on brief were Ronald C. With her exclusionary remedy’s significant costs Machen, Jr., Attorney, and Elizabeth outweigh privacy-shielding its minimal Trosman, Danello, H. and Elizabeth John role, utility and its deterrent is “not worth Dominguez, Attorneys. P. Assistant U.S. 596, 126 lot.” Id. S.Ct. 2159. HENDERSON, Before: ROGERS and in Unlike the officers PILLARD, Judges. Circuit home, had a warrant to search the who pursuant here acted to warrant officers by Opinion for the Court filed Circuit to arrest a An arrest warrant person. Judge PILLARD. judicial no determination reflects home; rather, Dissenting opinion by grounds filed Circuit to search n Judge probable HENDERSON. evidences cause believe crime, the arrestee has committed a and PILLARD, Judge: Circuit his might authorizes arrest wherever he If an is appeal requires away us to answer a found. arrestee found This work, street, on the or at question by left unresolved home—at some privacy of Michigan, in one else’s home—the his home (2006): So, too, if 165 L.Ed.2d 56 remains inviolate. an arrestee there, exclusionary him applica- rule is not at home when officers seek Whether and makes or if he comes to door ble when law enforcement violate arrest, the arrest available the Fourth Amendment’s knock-and-an- himself to en a warrant to warrant does not authorize officers executing nounce rule while Any prerogative ter an arrest suspect at home. the home. arrest a found may to enter a home is er exclusionary warrant confer rule applies when the highly contingent thus narrow and knock-and-announce rule is violated particular circumstances the arrest. arrest warrant context. We consider whether the violation causes the seizure of subject An individual to an arrest evidentiary such that suppression accordingly priva retains robust furthers underlying interests cy in the That interest home’s interior. rule, and whether the privacy protected by requiring interest of applying benefits rule law enforcement officers an ar executing outweigh Examining costs. those fac- knock, rest warrant announce their tors, we conclude that exclusion was the provide the ar identity purpose, appropriate remedy here, where officers opportunity restee with the to come to the executing warrant for defendant Michael And, they barge door before in. where sought home, Weaver’s arrest him vio- evidence is obtained because officers vio rule, lated the knock-and-announce lated the knock-and-announce rule exe discovered Weaver’s marijuana upon their cuting an warrant at the arrestee’s entry home, forced into apartment. its re Weaver’s retains Accordingly, medial force. Under Hudson’s ana own reverse the district court’s then, lytic approach, exclusion of the evi contrary. decision to the may appropriate remedy. dence be an Kennedy Justice took care to underscore I. separate opinion his in Hudson that agents Federal from the Bureau of Alco- operation

“the continued of the exclusion hol, Tobacco, Firearms, Explosives be- rule, ary as settled and defined our gan investigating defendant Michael Weav- precedents, is not doubt.” Id. er in when he came to their provided 126 S.Ct. 2159. He fifth vote attention drug-related for the course of a majority opinion the the investi- because gation targeting a suspect. knock-and-announce violation before the different As sufficiently part Weaver, court was “not to investigation related the of their into the later of discovery justify sup evidence to agents through searched trash outside his pression.” inquiry Id. The critical was marijuana. They home and found there, here, as it is whether the knock-and- from the target learned of the first investi- “properly violation could be de gation that Weaver drugs had sold for having discovery scribed as caused the of year signifi- more than and trafficked evidence,” 604, 126 and, id. at if quantities marijuana. cant of The agents so, whether costs outweigh its benefits. executed warrant to search Weaver’s Where the “requirement of causation” that residence late 2009 and discovered more exclusionary animates the rule has not grams $38,000 than marijuana, of been as it obviated was the search cash, drug packaging and materials. The id., and the where agents also reviewed Weaver’s bank rec- exclusionary rule retains remedial force to regular, unexplained ords and identified protect priva the core Fourth Amendment cash and a of more deposits balance than cy home, interest in the id. at cf. $100,000 from In April unknown sources. duty consider it our to agents the relied on that information apply it. to a warrant obtain for Weaver’s arrest. analyze on sepa-

We thus the factors the Court Prosecutors indicted Weaver counts, considered in Hudson including possession to determine wheth- rate with in- agents legally not authorized marijuana money that the were distribute tent' to they made apartment in his when laundering. they had because violat- those observations appre- was unable government ed knock-and-announce rule. Weaver the the agents when until hend Weaver that Hudson did argued pre- further residence. of his new the location learned of application clude building, the arriving at Weaver’s After rule to his case. his door apartment on agents knocked answer, no but There twice. was rejected Weaver’s The district court They inside. agents heard movement sup- motion to contentions and denied his would not concerned Weaver were press. The court first concluded district apartment flee because out a-window vio- that there was no knock-and-announce a minute high Less than was on a floor. knocked, an- because the officers lation “police” and later, agents announced “police,” and then waited rea- nounced key they had obtained immediately used a opening time sonable before door. to unlock the building’s concierge from the violation, if there had been a Even They not inform Weaver door. did prevail court held that would Weaver him. As the they had a warrant Hudson held because concluded door, attempted open some- agents inapplicable to knock- to hold the door closed. one inside tried generally. and-announce violations push door officers were able to order, separate district court and, open, struggle, after a brief sub- speedy rights trial held that Weaver’s Weaver, him, and arrested removed dued respect to the were violated with first apartment. him from the indictment, counts of the and so dismissed Weaver, arresting In the course of government them. The then into entered marijuana. One the offi- officers smelled agreement concerning with Weaver in” that as soon as he “came testified cers recent of the indictment. The more counts left” “turned left” and “looked to the for pos- dismissed the counts kitchen, “bags he observed toward MDMC, oxycodone session on marijuana” on the counter. Based agreed stipu- Weaver to a bench trial observations, obtained a the officers those remaining charge lated facts on the apartment search warrant possession with intent distribute mari- marijuana, kilograms several two found trial, juana. After that the district court oxycodone, bag drug tablets of guilty. found Weaver (commonly methylenexdioxymethcathinone appeals Weaver the district court’s MDMC, salts), as and referred to bath suppression denial of his motion. On such $10,000 government cash. The nearly legal appeal, we review court’s con charged with three additional then Weaver clusions de novo and findings of fact for with possession one count of intent counts: Pindell, v. clear error. United States 336 marijuana and two counts distribute (D.C.Cir.2003). 1049, 1052 of a possession controlled substance. trial, suppress At Weaver moved to II. search of

evidence seized the 2012 his He apartment. contended A. authorizing search derived protects The Fourth Amendment solely agents from the observations made warrants, right people to be secure executing “[t]he while the arrest 33 houses, effects, papers, 128, 136, persons, 2301, their U.S. 110 S.Ct. 110 L.Ed.2d (1990). against searches and sei- 112 If unreasonable the officers’ entry forcible zures.” U.S. Const. Amend. The con- unlawful, IV. into Weaver’s home was their stitutional of a search or presence reasonableness unlawful, his home was also on, depends among in the seizure home and their observations could not serve as things, law of- other whether enforcement the basis for a search warrant. Conse- complied ficers the knock-and- quently, the sole question before us is Arkansas, rule. v. Wilson 514 whether the rule applies to 927, 931, 1914, 934, U.S. 115 S.Ct. 131 evidence obtained as a result of a knock- (1995); L.Ed.2d 976 see also 18 U.S.C. and-announce violation committed when § (setting statutory 3109 forth a knock- law enforcement officers execute an arrest requirement). warrant, and-announcement opposed search warrant. rule requires, subject exceptions it applies, Where the exclusion here, relevant that law enforcement offi- ary prohibits rule executing cers a warrant —whether introducing in its case in chief evidence search or arrest —knock on an individual’s obtained in violation of the -Fourth Amend door, identity purpose, announce their See, Ohio, ment. e.g., v. Mapp 367 U.S. wait a then reasonable amount of time 643, 655, 1684, 81 S.Ct. 6 L.Ed.2d 1081 Wilson, forcibly entering before a home. (1961); v. Weeks United States, 232 U.S. 1914; 934-36, 514 U.S. 115 S.Ct. see 383, 398, (1914). 341, 34 S.Ct. 58 L.Ed. 652 Banks, also United States v. 540 U.S. Evidentiary “compel[s] respect exclusion 124 157 S.Ct. L.Ed.2d 343 for the guaranty only constitutional in the States, (2003); Sabbath v. United 391 U.S. effectively way by removing available — & n. 588 88 S.Ct. 20 L.Ed.2d incentive disregard” the Fourth Amend (1968); States, Miller v. United ment’s commands. Elkins v. United 301, 312-14, 1190, 2 U.S. S.Ct. L.Ed.2d States, 206, 217, 364 U.S. (1958). (1960). L.Ed.2d 1669 however, acknowledged, has that exclusion

Notwithstanding the district court’s is not appropriate every Applica case. contrary, conclusion to the there is no tion of is warranted when its dispute on this record that constitu objectives efficaciously are “most served.” safeguards imposed tional by the knock- Leon, 897, 908, United States and-announce rule were violated here. As (1984) (in 82 L.Ed.2d 677 government correctly ap concedes on omitted); ternal quotation marks see also peal, agents federal violated the rule States, Davis v. United failing to announce their before purpose 2419, 2426-27, L.Ed.2d apartment. entering Appellee Weaver’s (2011); States, Herring v. United 19-20; Miller, Br. see also 140—41, 695, 172 L.Ed.2d 496 309-10, 78 S.Ct. States v. United (2009). yield suppression “Where fails to (D.C.Cir. Wylie, 462 F.2d 1184-85 deterrence,’ ‘appreciable exclusion is 1972). parties also agree Both that unless ” Davis, ‘clearly unwarranted.’ S.Ct. the agents legally present were Weav at 2426-27. marijua er’s home when they viewed the na, their observations could not serve as a B. lawful basis for the issuance of the search Appellee Appellant warrant. Br. 41 In n. the Court consid- 22-23; Br. ered California, Horton whether exclusion was warranted protects personal rule safe- the and-announce officers violated enforcement when law privacy of not ty, and a residuum property, a executing rule while by pro- search It obviated the warrant. at S.Ct. search warrant. 547 safety vio- personal by preventing tects its consider- governed 2159. Two factors Id. at by a resident. surprised lence causal link was a ation: whether there of It avoids destruction S.Ct. 2159. of and the seizure the violation between doorway of a house officers forci- when the rule’s deterrence and whether bly using requisite it of open instead excluding outweighed the costs of benefits identity of knock and announcement probative evidence. to summon the homeowner to purpose causation, rea- the Hudson Court As “protects those elements door. Id. And rule is exclusionary that soned can dignity of that be de- privacy and violation triggered when the constitutional stroyed by by giving entrance” sudden evidence,” obtaining “a ‘but-for’ cause an “to opportunity pull residents is not “too connection provided causal clothes[,] bed,” and get out of otherwise Id. 126 S.Ct. 2159. attenuated.” answering before [themselves] “collect Hudson, “the violation of constitutional (internal quotation door.” Id. marks omit- entry not but- illegal an manner of was ted). “the emphasized Court obtaining the Id. for cause of evidence.” pro- has never knock-and-announce rule the knock-and-announce That is because preventing ... interest in tected one’s the breadth of the expand violation did evi- seeing taking authority on the officers search conferred As dence described in warrant.” Id. hand, they had by the search warrant out, Kennedy vividly pointed Justice already privi- to which were pursuant ... want a violation results from “[w]hen incriminating evidence. leged to obtain the law- pause ensuing, of a 20-second but Id. ful five evi- lasting search hours discloses criminality, Even if the knock-and-announce viola- the failure wait dence obtaining properly cannot be described tion had been but-for cause of door having discovery of evidence.” evidence, too caused causation Hudson was J., 603-04, (Kennedy, 592-93, Id. at 126 S.Ct. 2159 Id. at 126 S.Ct. 2159. attenuated. concurring). interests that were “[T]he “when the causal con- Attenuation occurs nothing ... to do violated ha[d] Id. at nection is remote.” evidence,” leading the Court seizure occurs, 2159. Attenuation also the Court rule exclusionary hold the Hudson to by explained, protected when “the interest Id. at inapplicable. has guarantee been constitutional opinion). (majority by suppres- be served violated would not Having Id. sion of the evidence obtained.” separately in Hudson exam- causation, the held there was no but-for ined whether the “deterrence- benefits” analyze whether causation Court did rule to applying violations however, hold, was too remote. It did the knock-and-announce causation, but-for “outweigh even if there were search warrant executions (internal by the knock-and-an- protected quo- interests social costs.” Id. substantial not, omitted). in the signifi- nounce rule nonetheless would marks The most tation context, sup- applying search warrant be served cant of the “considerable” costs “grave rule is adverse pression of the evidence obtained. Id. context, in- consequence In that that exclusion of relevant entails,” always observed, criminating the knock- the Hudson Court dangerous namely releasing “the risk cient deter such violations. See id. at society.” criminals into Id. at 126 S.Ct. 2159. 2159. The Court cautioned that al- S.Ct. considerations, As a result of those lowing ¿xelusionary remedy could also evidentiary Court held that exclusion was to a claiming lead “flood” defendants required not when officers violated the violations, knock-and-announce which knock-and-announce in rule the course of require judicial compli-

would resolution of executing a search warrant. cated, fact-intensive issues. Id. It could longer also lead to wait than con- officers III. stitutionally entering before required A. dwelling, “produc[e] preventable thus cases, against in violence officers some Hudson has not question answered the many oth- the destruction of evidence government before us. The argues, and ers.” Id. agrees, the dissent that because the exclu- sionary rule was held inapplicable Hud- against weighed Court those costs son, equally inapplicable it is here. We of exclu applying the deterrence value of employ legal course Hudson’s framework sionary context, rule in the search warrant considering whether the exclusionary it is which concluded minimal. Id. is remedy appropriate But here. we can- Violating 126 S.Ct. 2159. the warrant re accept government’s contention in quirement altogether produces often analysis that our begins and ends with the criminating evidence not obtain otherwise outcome Hudson. must indepen- We able, see id. rule is exclusionary dently logic examine whether the of Hud- incentive, Mapp, needed to blunt that see effect, applies son here to same Elkins, 1684; U.S. at whether arrest warrant context at is- Violating 80 S.Ct. 1437. is materially sue here so it distinct. requirement knock-and-announce when ex requires different result. warrant, contrast, ecuting search does propose dissent provide with an opportunity interpretation follow an of Hudson that is evidence, warrant, already obtain They divorced from its context. contend hand, would not otherwise authorize that Hudson held that the 596, 126 get. them to application any no rule has violation of id. at rule, regardless knock-and-announce (Where- entry an unannounced whether the violation occurred during the important needed to serve law enforce execution of a warrant to search the home interests, ment such as where officers have suspect. or to arrest a Dissent at 45-46. suspicion evidentiary a reasonable de view, already In their held that struction or life-threatening resistance inapplicable rule is when- duly accompany entry, announced would ever the knock-and-announce is violat- requirement where ed—even officers have an ar- 2159.) suspended. Id. at search rest warrant and not a warrant. The that law concluded enforcement officers armed with search support approach. warrants Hudson does not scant incentive plucks general to violate the knock-and- The dissent statements rule; moreover, noted, other argue from Hudson to that the Court in- increasing holding beyond deterrents —civil suits and the tended its extend professionalism police forces—are suffi- search warrant context. See Dissent at

36 it); But before Armour th[e] the facts of case” also id. 50-51. & n. see 45-46 Wantock, 126, 132-33, 65 Court, to the dissent’s charac- v. U.S. contrary & Co. 323 the (1944) terization, question before 165, (emphasiz- the articulated 89 L.Ed. 118 S.Ct. The search-warrant-specific terms: “opinions it in are to be ing that the Court’s that opinion the stated opening sentence the case light in of the facts of read the “whether viola- was question presented discussion,” Court cannot under rule re- the ‘knock-and-announce’ tion of every limita- into them practically “writ[e] all quires suppression might suggestéd or which tion variation 588, 126 found in the search.” of cases not before by circumstances added). The Court’s (emphasis 2159 S.Ct. Court.”). in grounded the context reasoning was The Fourth Amend Court’s describing the interests it. before When vividly pre ment illustrate that cases protected, knock-and-announce -a scope cise and limits of constitutional it that example, emphasized “[w]hat in one case often are principle articulated pro- rule has never apparent op until the Court has had preventing ... tected is one’s interest it in new situations portunities apply taking evi- seeing Compare it. Florida help that to elucidate 594, in a warrant.” Id. at dence described — U.S. -, Jardines, 1409, S.Ct. v. 133 added). (emphasis Search 126 S.Ct. 2159 (2013) (holding 495 185 L.Ed.2d not arrest warrants —“de- warrants —and dog a drug-sniffing of a on the use and authorize officers scribe” “evidence” porch homeowner’s was search under the precedents The dis- “take” evidence. Amendment), Fourth with United States v. majority by both the cussed relied Place, 696, 707, 2637, 103 77 462 U.S. S.Ct. Kennedy’s opinion and Justice concurrence (1983) (holding by L.Ed.2d 110 that a sniff precedents concerning are the Court’s dog of a narcotics-detection an individual’s warrants, see 126 S.Ct. search id. luggage did constitute search under “excluding cases the fruits (discussing 2159 Amendment); the Fourth Dissent searches”), further of unlawful warrantless charting cases (collecting at 48-49 suggesting that the Court did not conceive creating approach Court’s incremental sweepingly govern- decision as as the rule). exceptions ment contends.1 Knotts, v. United States reject government’s We 276, 278-79, 281-82, 103 460 S.Ct. U.S. here dissent’s insistence that issue (1983), for example, 75 L.Ed.2d 55 It already by has been decided Hudson. no held that no search occurred thus holding go saying should without required was when officers to the can be understood reference by plac- tracked defendants’ whereabouts the case which was ren context of States, in a of illicit ing radio transmitter drum Phelps v. 421 dered. See United 330, 333-34, drug that when defendants ingredients, 44 L.Ed.2d so S.Ct. (1975) they unwittingly car- (cautioning picked up the dram the Court’s be “read in the context ried the transmitter them. Defen- statements must Ohio, precedents dis- v. 367 U.S. S.Ct. Court cited and States, searches, (1961); v. United involved home warrants and L.Ed.2d 1081 cussed Weeks 58 L.Ed. 652 not arrest warrants executed home. 590-91, 593, 602, (1914)); see also 547 U.S. at U.S. at Ramirez, J., (Kennedy, concurring part (citing United States Ramirez). (1998); (citing concurring judgment) Mapp in the 140 L.Ed.2d 191 expectation dants had no reasonable of text. The Court never par- mentioned the privacy thus no Fourth and Amendment question allel as it arises in the context of rights the against government using executing arrest warrants. For the rea- they already means to information obtain sections, sons discussed in the next 281-82, were to exposing public. the Id. at conclude that the differences between year, 103 S.Ct. 1081. The next in United distinguish search and arrest warrants this Karo, States v. 468 U.S. 104 S.Ct. case Hudson. (1984), however, 82 L.Ed.2d 530 the sup Court applied reasoning Knotts’s to B. port on opposite analogous the result but requirements for The search warrants A materially different of facts: similar use protect priva- and arrest warrants distinct placed drug radio in a can transmitter of interests, cy types and the two of warrants ingredients violated defendant’s authorize law enforcement officers to take rights Fourth Amendment because different actions. interests the knock- was track transmitter used to the defen protects and-announce rule corresponding- dant as he carried the chemicals inside a differ, ly depending type of warrant private home. Id. at 104 S.Ct. 3296. — law enforcement officers executing. are Jones, U.S. -, United v. States differences, Because those the Court’s (2012), 181 L.Ed.2d 911 revealed in analysis cannot apply Hudson the same yet important another consideration. yield way or the same result here. Jones, the Court considered whether the government’s installation a GPS device An individual’s in pro interest on a defendant’s car to monitor move tecting privacy his home of the public ments on roads constituted a search. See, Jardines, highest e.g. order. in Id. at Jones distin States, v. Kyllo S.Ct. at United Karo, guished pointing Knotts and out that 27, 31, 121 S.Ct. 150 L.Ed.2d 94 in prior neither of the had cases the Court (2001). Kennedy As Justice underscored been faced with a situation in which the in Hudson. possessed property defendant when security privacy and home are trespass committed the central Fourth Amendment’s insert the information-gathering device. guarantees explained as in our decisions Id. at 952. understood since the beginnings presume We cannot man- Hudson Republic. of the This common under- dates the same result for violations of standing respect for law ensures knock-and-announce rule both the institutions, allegiance to our it and is search In- and arrest warrant contexts. transmitting instrument for our Consti- stead, whether, we must assess as Weaver generations tution later undiminished argues, the arrest warrant context is mate- in meaning repeat- and force. It bears rially distinguishable from the search war- if ing serious matter law rant government’s context. The and the sanctity enforcement officers violate the dissent’s efforts find Hudson a cate- by ignoring requisites of the home gorical deciding this case cannot be entry. lawful squared pervasive necessary judicial making. 126 S.Ct. 2159. “At the incrementalism decision very core of Fourth propriety addressed the Amendment exclusionary remedy right for a stands the of man to retreat into knock-and-an- nounce violation the search warrant con- his home and there be free from own found, person might reasonably where governmental intrusion.”

unreasonable searching must once locate stop 121 S.Ct. Kyllo. 533 U.S. omitted); Buie, (internal him, Maryland marks quotation (“[W]hen Jardines, 108 L.Ed.2d Amendment, (1990); Thomas, Fourth it comes States v. 429 F.3d United (D.C.Cir.2005). among equals.”); 282, Minnesota home is first 287 99, 469, Carter, 83, v. 525 U.S. ac (1998) J., lawfully officers have When (Kennedy,

142 con L.Ed.2d 373 (“[I]t an home in search of an beyond dispute cessed area of the that the curring) is arrestee, they may plain seize items special protection entitled to as home is they that cause to be private peo probable of our view have the center lives 585, See, e.g., at 100 are a crime. ple.”); Payton, 445 S.Ct. lieve evidence of U.S. (“[T]he Hicks, 321, 326, entry of the home is v. U.S. 107 physical 1371 Arizona 480 (1987); 1149, against wording the chief evil which the of 94 347 S.Ct. L.Ed.2d Cool (in 465, 443, the Amendment is directed.” Hampshire, Fourth 403 U.S. idge New omitted)). (1971). quotation 2022, ternal marks Ar 91 29 L.Ed.2d 564 S.Ct. routinely resting officers must search enforcement officers’ au Law home; every arresting room in a when an warrant to enter thority under an arrest home, the arrest warrant’s individual at and home is more condition search a both authority locating per to is confined more their au al and circumscribed than reach, son, securing the area within his thority under a search warrant. Officers quick of making sweep and a and limited may with a enter a armed search immediately adjoining areas and for the items described in home search See, which an could be launched. attack in the anywhere the warrant home where Buie, 327, 334, 110 e.g. S.Ct. might Mary items be located. See those 752, California, Chimel v. 395 U.S. 84-85, Garrison, 79, 107 land v. 480 U.S. 766, 2034, 763, S.Ct. 23 L.Ed.2d 685 89 (1987). 1013, S.Ct. 94 L.Ed.2d 72 An ar (1969). perform sweep a may Officers warrant, contrast, by rest authorizes a they of of if other areas the home limited into the much more intrusion ... facts which would warrant “articulable See, States, e.g., Steagald v. United home. reasonably prudent believing a officer in 7, 101 n. 451 213-14 & S.Ct. U.S. swept that the area to be harbors an indi (1981); Payton 68 L.Ed.2d v. New a to posing danger vidual those on York, 573, 603, S.Ct. Buie, (1980). at arrest scene.” executing In an ar L.Ed.2d Once officers find arres warrant, may S.Ct. 1093.2 rest officers enter an individ tee, however, they longer no they are author only home when have reason to ual’s there, by enter Payton, 445 ized the arrest warrant to other believe arrestee is home; may only look rooms arrestee retains danger any longer argues 2. and in event no than it The dissent have mischarac- of Dissent at 57. That is not so. depart terized Buie. complete to arrest and takes (cid:127) Buie, specifically In de- S.Ct. premises." Id. 1093. sweep can scribed kind officers make by agree sweep supported a a reason- We suspicion "quick and without reasonable But, suspicion may be more extensive. able S.Ct. limited.” 494 U.S. at 1093. "justified by sweep the cir- such must be sweep "may cursory Such a extend to cumstances,” id. at and person inspection spaces those where argued such has not circum- found,” longer may may last "no than present are stances here. necessary dispel suspicion is reasonable expectation privacy an in those areas. extensive intrusion into the home sum, Id. at are authorized to make when an arrestee of lawful timing scope searches of does come the door. The knock- ' an pursuant home arrest warrant are and-announce rule consequently protects limited whether and where the arrestee an arrestee’s interest in shielding intimate he the home when submits to arrest. details his home from the gov- view of agents. ernment

An arrestee’s location the time likely depend whether person’s A right to the privacy comply officers knock-and-an of his home not require does him to have nounce rule. The knock-and-announce any special reason for claiming priva requires announce their cy; the recognizes Constitution a person’s presence purpose give arrestee privacy the home as valuable in and of open an opportunity to the door of his is, however, easy itself. It to understand Miller, home. See at U.S. the additional value of the knock-and-an (1604) (citing Semayne’s S.Ct. 1190 Case nounce a person facing rule to arrest- at 195; 91a); 77 Eng. Rep. Rep. 5 Co. home, who may any number of rea Banks, 31, 38-39, 540 U.S. 124 S.Ct. 521. for wanting sons to surrender himself at Any governmental agent the “signify must the door and shield the remainder of his cause of his and ... make coming, request from living home view. Someone with his Miller, open to doors.” at family might, prefer for example, to sur (quoting Semayne’s S.Ct. 1190 Case render himself on doorstep his to avoid 195). Eng. Rep. at an Officers armed with in front being family arrested of his mem may arrest warrant open “break bers, A especially person may children. person doors to the suspected, take if keep desire private to and personal upon demand he will not surrender him home, papers and effects or the the fact States, Accarino v. United self.” identity guest, (D.C.Cir.1949) added) 456, 461 (emphasis agents’ view. The Fourth Amendment’s (internal omitted). quotation marks protection privacy of personal Supreme recog As the documents, spaces, things and at home nizes, when officers break the door aof applies whether or not are evidence someone, they home to “invadef] arrest or a wrongdoing potential source of precious the of privacy interest summed householder, “Every embarrassment. the up in adage the ancient that a man’s house bad, good guilty and the and inno Miller, is his castle.” 78 cent, is to protection designed entitled context, S.Ct. 1190. In against the common interest un secure protects the knock-and-announce rule Miller, lawful invasion of the house.” privacy arrestee’s as well his property Hicks, at see also safety. privacy the officers’ That in 1149; Carter, at 480 U.S. terest is limited-—as it in the face (Ginsburg, at 525 U.S. a warrant provid search the home—to J., dissenting). ing opportunity the arrestee with an dressed, compose get himself or but also C. preserve priva enables arrestee cy by surrendering Contrary argument “castle” his himself to the advanced dissent, at the If an door. arrestee so surrenders our decision United States (D.C.Cir. himself, Southerland, officers cannot make the more 466 F.3d 1083 in Hud- discussion Supreme Court’s “directly refute 2006), does similarly limited. That son itself was just described. distinction” searcb/arrest to Miller and Sabbath involved Court referred at 52. Southerland Dissent roots of confirming violation exe common historical knock-and-announce It statutory warrant. was constitutional knock-and- a search cution of rules, say anything when the appeal in this court did not announce but pending remedy Hudson. On suppression Court decided overruling about his Southerland abandoned and announce reargument, officers fail to knock where argued claim ar- constitutional homes to effectuate entering before to the violation of apply did not at 126 S.Ct. 2159. rests. statutory right. his Indeed, validation of and Sabbath’s Miller concluded that 1083. We remedy 466 F.3d for knock and statutory knock- the constitutional in the violations arrest context— were one and the rules and-announce by Hudson —is more of undisturbed same, the exclu making id. than position to the dissent’s obstacle remedy equally inapplicable sionary govern- is to ours. Even Southerland during Southerland’s and the violations here, clearly was aware of ment which searches, home see id. 1084- Hudson’s case, Br. at Appellee Southerland it the force that the dis- does not accord urges. sent an unwarranted im- dissent draws discussion plication Southerland’s sum, agree In we with Southerland two cases—Miller and Sabbath— older legal provides the relevant frame- Hudson evidentiary denials of that had reversed determining work whether exclusion is for Sabbath, at suppression. See remedy officers vio- appropriate when Miller, 585-87, at But, rule. late the knock-and-announce Each of those cases 78 S.Ct. 1190. discussed, already for the reasons neither statutory knock-and- violations of involved an- nor Southerland considered or Hudson in an context. provisions arrest question before us. swered those cases his ef- Southerland invoked salvage distinguish Hudson and his

fort to D. exclusionary remedy ground on the statutory and Sabbath addressed Miller Finally, the cases the dis- out-of-circuit suppression appro- to be and held claims cites, 51-52, pro- at 46 n. sent Dissent rejected at 1084-85. We priate. F.3d support proposi- most for the vide at weak between con- proposed distinction applies in the arrest- tion that Hudson statutory stitutional versions warrant context. at rule. Id. knock-and-announce held, as The First has the dis- Circuit Miller and Sabbath The fact both out, applies points sent “Hudson was not relevant were arrest cases equal force in the context of Southerland, case; which was a search Pelletier, warrant.” States v. United no to address whether simply had occasion (1st Cir.2006); see also F.3d apply rule continues Jones, 36-37 United States v. committed violation knock-and-announce (1st Cir.2008). The First Circuit’s deci- suspect at when officers seek to arrest sions, however, do not address distinc- home. situations, tions between arrest and search warrants.3 warrant as opposed [search] one, those are Because we believe distinctions they like this where allegedly violate to Hudson’s analysis, material the First the rule when need not obtain a war- un- acknowledge Circuit’s failure to them rant” in order to perform constitutionally force. persuasive dercuts those decisions’ valid home search. Id. 311. Smith had no occasion to consider whether Hudson The other cases the dissent identifies was confined to search opposed to ar- arguably not even in conflict with our are rest cases. United (citing decision. Dissent at 52 Smith, (6th

States v. 526 F.3d Similarly, Ankeny’s holding way no Ankeny, and United States v. Cir.2008), case, conflicts with ours. In that the de- Cir.2007)). (9th 502 F.3d 835-36 fendant moved to suppress evidence seized of application Those cases concern because, by argued, he the officers context, to the search warrant not the failed to knock and announce pres- their arrest warrant context. The dissent ence when executing a search warrant. quotes language opinions from those out of 502 F.3d at 833-34.5 The defendant con- support points by context to not made tended that his governed by case was not Smith, opinions themselves.4 for exam- Hudson “because could have ple, argued the defendant that officers obtained a no-knock warrant but failed to failed abide the knock-and-announce so,” do but the court to limit “decline[d] search, conducting when not when Hudson so to its facts.” Id. narrowly making an arrest. 526 F.3d 308. The 835-36. court did not consider the warrant, officers lacked a search but the propriety exclusionary remedy of an court concluded that their search of the committed violations defendant’s home was nevertheless reason- during the execution of arrest warrants. able because he was under house arrest Despite the dissent’s assertions to the and thus had a con- expectation diminished Ankeny speak neither Smith nor trary, Id. privacy. 308-09. The court con- to “was not confined to whether or how Hudson cluded that Hudson applies when offi- situations which the officers violate the cers violate the knock-and-announce rule obtaining knock-and-announce rule after they when lack a search warrant and ar- Moreover, appear 3. it remedy does not that in either appropriate exclusion is the for viola- brought Pelletier or Jones defendants those tions of state knock-and-announce rules. See court, nor, Cable, (Fla.2010); distinctions attention of the State v. 51 So.3d indeed, State, (Alaska briefing did the in its Berumen v. 182 P.3d rely Ct.App.2008). Jones on either Hudson or Pelletier. 4. Ankeny, Several of the other cases and outstanding articles 5.In the defendant had cites, 2-3, 48, warrants, dissent see Dissent at 46 nn. appears but it that officers merely holding describe pursuant of Hudson. entered his home to a search war- hold, specify, Those (recounting cases do not let alone rant. 502 F.3d at 833 that officer prevents application of the "police, exclusion- announced search warrant” before ary door). breaking rule to a any knock-and-announce violation in down the defendant's In event, the arrest warrant We context. have not found if officers violated the knock-and-an- imprecise descriptions of Hudson in second- nounce rule armed with both arrest and ary warrants, provide helpful presumably sources or courts' dicta to search the officers would, Hudson, guidance applying analysis Hudson’s to the as in have a valid basis for Additionally, current case. in two independent seizure of the evidence invokes, violation, state-court cases the dissent Dissent knock-and-announce which is not evidentiary at 46 n. the courts held that the case here. obligation solely they war- fulfilled their constitutional to execute a

rive at house announce, knock, and the arrestee arrest. allow rant for the inhabitant’s time to to the door. As officers come IV. through move a house locate an arres- tee, portions to view more they are able between Given the differences they find in a its interior. If the arrestee warrants, warrants and arrest search bedroom, study within searching places or drawn in Hudson do not re conclusions protectively his immediate reach and Instead, indepen this we must solve case. likely areas to be sweeping adjacent factors identified dently examine the revealing more intrusive and than would costs and the and ben Hudson —causation had those searches occurred determine whether been efits exclusion—to ap foyer. in a fail- application stoop rule is a front Officers’ factors, announce, therefore, Examining those can propriate. ure to knock and that the rule is the conclude areas cause them to view of the home remedy for a violation of the appropriate they not have discover evidence would knock-and-announce rule committed dur authority have constitutional otherwise arrest warrant. ing execution of an cases, the vio- see. In such constitutional lation the direct cause law enforce-

A. obtaining beyond ment officers causation. authorizes. lawfully which the warrant We first consider knock context, Requiring officers to warrant the arrest executing an arrest individual is de announce when place where an arrested might privacy interest in the guards termines what officers they A permitted way requirement where are search. home in that the same violation, leading to cannot when officers have a warrant to do an arrest the home rather than at inside search home. Unlike officers armed door, the front is thus the immediate cause warrant, awith officers armed sole search within intruding of officers further a home ly with an arrest warrant do not have and obtaining than otherwise would any gather authority papers, to examine they are not authorized to evidence that effects, any or search various nooks strong see. That clear and causal connec They of an home. crannies arrestee’s Hudson. distinguishes case from tion this are authorized to make the limited necessary intrusion home to locate into the Law officers’ failure to enforcement Payton, See and the arrestee. seize deprives and arrestee knock they 100 S.Ct. 1371. Once any opportunity to answer the and door arrestee, may locate the officers intrude no at the of his surrender himself threshold rule, by further. The knock-and-announce properly by When not summoned home. providing opportunity an arrestee knocking announcing officers and their door, thereby to surrender himself identity purpose, might and an arrestee scope enables the arrestee to minimize the home, anywhere in in perhaps located protect of that the intimacies intrusion or floor of multi- upper a bedroom on an a Sup his home from officers’ view. entering a result of dwelling. level As obtained in violation of unannounced, pressing evidence gain the officers access to directly the knock-and-announce rule thus a deal a perhaps great more—of more— rule. they protected by would have had serves the interests home’s interior than that, because the presumes applying The dissent fits of the rule outweigh its ac- knock-and-announce re- knowledged same substantive social costs. apply in both the search quirements The costs of applying the exclu context, protects rule the same sionary rule to this kind constitutional interests. See Dissent 54-55. Hud- violation in the arrest warrant context are son, however, Court had no similar to in those described Hudson: The specify occasion to consider or the inter- courts expend will need to resources to protected by requirement ests that resolve close claims of knock-and-announce officers knock and announce when execut- violations, entry officers’ might be

ing an arrest warrant. See 547 U.S. at delayed by knocking, announcing, (“What 594, knock-and- and, waiting response, most important protected announce rule has never ... relevant, ly, incriminating evidence will be in preventing govern- one’s interest rendered unavailable at a defendant’s trial. seeing taking ment from evidence de- 595, 126 Id. at S.Ct. 2159.6 warrant.”). in a scribed Hudson concluded privacy the interest the home real, Those costs they are but are out- judge is obviated when a issues weighed by privacy interest opportu- probable search warrant based on cause of nity to deter its violation that is substan- crime or crime in evidence of the home is tially stronger here than negligible interest privacy interest and deterrence value longer analysis rule no recog- serves. Our Hudson. As the Court observed in Hud- privacy nizes that the interest the home son, “the value of depends deterrence judge remains intact when a has made strength of the incentive to commit the only proba- the different determination of forbidden act.” Id. at 126 S.Ct. 2159. suspect ble cause that a has committed a Officers armed with an arrest war- warranting Application crime arrest. who, reason, for whatever did not rant — the knock-and-announce rule in the arrest seek or were unable to obtain a search warrant context enables the arrestee to violate, strong warrant —have a incentive to protect privacy by his at home surrender- Entering knock-and-announce rule. ing himself at the door. home unannounced to execute an arrest

warrant increases the chances officers B. gain entry parts will they home carry would not otherwise have entered to weigh,-in We next the arrest warrant arrest, thereby out the and will give them- context, the of excluding costs evidence selves an opportunity incriminating to find obtained violation of the knock-and- otherwise would never see. against announce rule in pro- benefits tecting right the Fourth Amendment aptly highlight The facts of this case privacy deterring in the home and why might viola- when and want to vio- right. tions of that late the knock-and-announce rule. of- 594-98, at 2159. appli- executing Because ficers were an arrest warrant exclusionary old, cation of the years rule here would that was over two based on deterrence, appreciable result in the bene- offenses committed even earlier. The offi- cost, 906-09, always 6. The mere existence of that last 104 S.Ct. 3405. If it present exclusionary applied, when the otherwise, rule is exclusionary were rule would is insufficient in and itself of to overcome an not exist. Leon, appropriate application of the rule. Cf. If ing an arrest warrant. violations are incriminating evidence cers lacked recent rare, failing applying then cost of By to knock the actual against Weaver. new, announce, able to obtain they exclusionary were rule will be minimal. The kitchen from Weaver’s with cases courts will not be flooded claim- valuable warrant and secure rule ing very without a search observe the failures to that not sus- superseding indictment was dangerous go criminals will free few be- The challenge. trial ceptible speedy to a missteps. Dissent at cause officers’ Cf. parlay to ar- ability an old government’s paucity challenging The cases viola- 56. supporting new evidence rest into tions of and announce rule when the knock precisely why charges new demonstrates may officers execute an arrest warrant only an armed with arrest warrant officers very to the deterrent effect of well be due suspect to seek the tempted would be applications exclusionary of the rule. past the knock-and-announce home and violate Sabbath, generally 391 U.S. See rule. Miller, 357 U.S. limited in- can conduct searches

Officers home, as cident to a lawful context, Here in un- the arrest-warrant acknowledges. at 57- the dissent Dissent Hudson, grounds like in there are to con- recognize fails to that 58. But the dissent clude that application those scope and intrusiveness of rule to knock-and-announce violations in the depending varies where searches would deterrence of appreciable result violating located. By arrestee is home the application constitutional violations. When rule, give officers provides the exclusionary rule beneficial arresting a better chance themselves deterrence, that outweighs benefit home, inside his where a search individual rule, it applies. costs revealing protective sweep will more on the than one conducted home’s thresh- C. old. contends that its government The may strong incentives officers Given wait agents should not have to for an rule, have to violate the the deterrence any particular arrestee to take series of starkly different than it calculus is here home steps might shield his from the was in Hudson. the Court’s agents’ government The correct view. driven, analysis large was balancing not, as agents example, insofar need part, by conclusion the incentives every make to enable an effort arrestee to violate the rule were weak and there- open the a manner does not door-in virtually was fore that deterrence worth- view, home expose the interior of his less. 547 U.S. S.Ct. 2159. dwelling, exit the and close the door. But opportunities gain evidence not other- opportunity must him an to come give increase wise incentives to vio- accessible Banks, to the door. here, late which correspondingly the rule Here, by knocking 124 S.Ct. 521. but raises the rule’s deterrence purpose, failing announce their out- appreciable value. That deterrence agents gave opportunity pro no Weaver rule.

weighs the costs of the privacy tect the of his home. jettison It make little sense to would if simply because, argues even exclusionary rule himself, in rarely violate had surrendered this presumes, dissent Weaver would particular agents case the nonethe- the knock-and-announce when execut- ment, less have been able to make the observa- drugs would have been observed justified tions that the search warrant. The during protective sweep of the areas support record does not conclusion. adjacent to where Weaver was arrested. agents Because the federal violated the rule, knock-and-announce Weaver was not For reasons, all of the foregoing given peace- a chance to surrender himself conclude that the exclusionary rule is the fully doorway at the of his unit or in the appropriate remedy for knock-and-an- Instead, hallway building. of his he strug- nounce in violations the execution of arrest gled pushed with officers way who their person’s warrants at a parties home. The eventually inside and overpowered him in agree that the satisfy officers did not order to effectuate the arrest. The record rule’s dictates here. The district court does not reveal much how access to the should have excluded the fruits of that apartment struggle gave the agents constitutional violation. Consequently, we

beyond they what otherwise would have reverse the district court’s denial of Weav- whether, had. It is also given unclear er’s suppression motion and remand for layout of apartment Weaver’s and the loca- proceedings. further tion of drugs, the officers would have So ordered. been marijuana able to see and smell the plants from the threshold of his unit if HENDERSON, KAREN LECRAFT opened

Weaver had the door and surren- Judge, Circuit dissenting: dered himself there. the record is that I am exclusionary convinced the

agents drugs were not to observe the apply able does not to a violation of the Fourth they until apart- had entered Weaver’s Amendment require- ment: An agent executing ment, the warrant period. I thought had that was testified that soon as plain “[a]s went [he] the U.S. Court’s deci- door, smelled marijuana,” [he] the fresh sion in Michigan, Hudson v.

and that apartment (2006). after he entered the My 165 L.Ed.2d 56 marijua- conclude, and looked to his left he saw the colleagues however, that because na. specify The record does not how far Hudson involved a knock-and-announce vi- into apartment agent went during before olation the execution of a search marijuana, warrant, he saw the how much farther it is limited to that context and apartment into the he was able to enter as apply does not to a knock-and-announce Weaver, a result of struggle to subdue violation the execution of an arrest marijuana Yet, or whether the was visible from nothing warrant. supports doorway. government has thus their view. Hudson held that all viola- failed to create a record would enable tions of require- the knock-and-announce agents us to conclude that the would have ment are exempt from the made the same observations had my colleagues’ rule and attempt to limit its knocked, announced, and arrested reasoning Weaver to search unpersua- warrants is Indeed, his threshold. Nor has the sive. majority, concurrence that, argued even if Weaver had surren- dissent Hudson would all be sur- dered himself at apart- prised by the threshold of his my colleagues’ reading.1 narrow 1. See 126 S.Ct. 2159 for violation of the knock-and-announce re- (defining question presented broadly quirement”); id. at 126 S.Ct. 2159 (same); (Kenne- appropriate "whether the rule is id. at 126 S.Ct. 2159 46 exclusionary-rule of the debate4 every member of this Court sides and

As would circuits,3 2006,2 lawyer.5 majority both our scholars on even Hudson’s sister J., concurring concurring part application exclusionary rule. The rule dy, of 604, (Breyer, on of the judgment); 126 S.Ct. 2159 turns the nature constitutional viola- id. J., ("[T]he issue, police’s Amendment dissenting) Fourth tion at not the nature of the (citations normally authority entering officers requires law enforcement home.” omitted)). presence their before knock announce Today’s dwelling. opinion holds entering a following a from home that evidence seized See, Tomkovicz, e.g. J. Hudson 4. James v. sup- requirement need not be violation of this Michigan the Future Fourth Amend of pressed.”). 1819, ment 93 Iowa L.Rev. 1839— Exclusion. (2008) (explaining why 41 & n. 111 Hudson Southerland, v. 466 F.3d 2. See United States warrants); cannot be limited to search 1 ("Hudson’s 1083, (D.C.Cir.2006) holding 1083 R. Search & Seizure: A Treatise Wayne Lafave, exclusionary apply rule did that the [is] 1.6(h) § & n. 165 on the Fourth Amendment vio- knock-and-announce Fourth Amendment (5th ed.2014) (“Whatever might think one o lations”), opinion unanimously endorsed f fruit-of-the-poisonous-tree holding, Hudson’s F.3d at n. 1. Irons 466 1084 footnote. majority's ... alternate deterrence/costs holding tion____ applica open to ... is broader Pelletier, See, e.g., v. States 469 F.3d United only analysis, Applying a fruits Cir.2006) ("Hudson 194, (1st applies with 201 notwithstanding would seem that Hudson equal context an arrest war force in the of there would be instances in which items not Smith, 306, rant.”); v. United States 526 F.3d deemed named the warrant would be Cir.2008) ("Nor, (6th contrary to [defen 311 premature entry entry fruit of a anor without suggestion, only apply does dant’s] Hudson notice because absent that violation the evi warrant.”); when the have a search officers dence would not have been discovered. But 829, Ankeny, States v. 502 835-36 United F.3d ... it is to doubted that it likewise be could be (9th Cir.2007) ("[W]e decline limit Hudson greater said there is a need for deter facts.”); narrowly v. so to its United States rence of those knock-and-announce violations Cos, Cir.2007) (10th n. 498 F.3d 1132 3 serendipitously produce such evidence.” that, (Hudson particular when kind "held of (citation omitted)); and some footnotes 2 by police them mistake is made Drug § Abuse & the Law Sourcebook 9:14 Amend selves—a violation Fourth (“The (2014) balancing ... [Hudson ] Court's requirement— ment's knock-and-announce against the deterrence benefit [of] the social (em exclusionary applicable” is not rule likely cost of to lead to exclusion!] Collins, added)); phasis United v. States regardless entry result same whether the (7th Cir.2013) ("Hudson ... to serve search warrant an arrest war appropriate holds that exclusion is not an rant.”); Summers, A. Mark The Constable remedy for violations the knock-and-an Blunders but Isn’t Punished: Does Hudson v. Cable, rule.”); nounce see also State v. Michigan’s Exclusionary Abolition Rule (Fla.2010) (stating, in arrest- So.3d Beyond Extend Knock-and-Announce Viola Hudson, case, clear "[u]nder it is (2008) ("Be tions?. 10 Barry apply that the rule L.Rev. does not violations”); the[ cause interests in Hudson ] [identified ] Fourth Amendment knock-and-announce every are same in State, 635, 637 182 P.3d Berumen case, there are no knock-and-announce (same); (Alaska Ct.App.2008) v. Mar State applying violations where 04-CO-66, cum. No. V WL remedy Ray justified.”); would be John B. (Ohio 2006) (“Based Ct.App. at *3 Dec. burn, Note, "Blowing What Is in the Wind”? sup no should have been Debate, Exclusionary Reopening the Rule pressed due to a violation of the knock-and- (2008) ("ex W. Va. 823-24 of arrest rule” execution L.Rev. tending] Hudson to the execution of arrest S., warrant); Cal.App.4th In re Frank elementary warrants ... seem[s] (2006) ("Defen Cal.Rptr.3d non-problematic”). applies dant's contention Hudson where the search warrant is Moran, persuasive. held that a violation 5. David A. The End the Exclusion- Rule, justify ary Among Things: The the knock-and-announce rule does not Other Roberts 398, 406, case will opinion 1943, this create a U.S. 126 S.Ct. 164 L.Ed.2d (2006); split, Arkansas, direct circuit States v. United 650 Wilson v. 514 U.S. Jones, (1st 31, Cir.2008), 927, 936, 523 F.3d 36 but it 1914, 115 S.Ct. 131 L.Ed.2d 976 (1995); “produc[e] preventable Wisconsin, will violence v. Richards 520 U.S. officers,” against dangerous 385, 394, 1416, “releas[e] 117 S.Ct. 137 L.Ed.2d 615 (1997). society” generate criminals into Hudson, litigation. “flood” of burdensome The United States inherited the knock- 595, 2159; 547 U.S. 126 S.Ct. see also and-announce rule from English com pp. 55-57. I Accordingly, respectfully

infra 589, mon law. See 547 U.S. at dissent. 2159; Miller, 126 S.Ct. see also (knock-and-announce 313, 78 S.Ct. 1190 re I. BACKGROUND quirement “a tradition embedded in An requirement law”). glo-American It usually traced arises whenever a police officer seeks to Semayne’s to century Case — a 17th deci permis- enter someone’s residence without sion from the King’s although its Bench— States, sion. See Sabbath v. United 391 origins may be more ancient still. See 585, 589-90, 1755, 20 L.Ed.2d Wilson, 2, 514 U.S. at 931-32 n.& 115 (1968). making entry, 828 Before such an 5.Ct. see also Semayne’s Case. knock, officer must authority announce his (1604) (K.B.) 196; 77 Eng. Rep. 194 5 Co. (“Police! warrant!”) purpose I have a a, Rep. 91 (citing 91 b 1275 statute and and wait a reasonable for an time answer. noting it was then “but an affirmance of States, See Miller v. United 357 U.S. law”). the common For federal law-en 78 2 S.Ct. L.Ed.2d 1332 officers, forcement the knock-and-an (1958); Banks, United States v. 540 U.S. requirement nounce has been mandated 31, 41, L.Ed.2d 343 157 statute since 1917. See Act of June (2003). requirements, not surprising- XI, 8,§ tit. 40 Stat. 229. The cur See, ly, subject are exceptions. e.g., provides: rent version Miller, 78 S.Ct. 1190 may any The officer break open outer or (police need not announce if purpose de- house, inner door or window of a any already fendant knows are there to house, therein, part of a or anything him). Moreover, an can by- officer warrant, if, execute a search notice after pass requirement the knock-and-announce and, authority purpose, his he is re- entirely if suspicion he has a “reasonable fused necessary admittance or when Banks, exigency or futility.” 540 U.S. person aiding liberate himself or a him at 37 n. 521. Exigent S.Ct. circum- in the execution of the warrant. anticipated physical stances include vio- lence, added).6 apprehending escaped prisoner § (emphasis By 18 U.S.C. terms, preventing the destruction of governs evidence. section 3109 the execu- Stuart, Brigham City, See Utah v. only. tion of “search warrants]” reference, applies, by Court Takes on the Fourth Amendment. 2006 6. Section 3109 also ("[In] my CATO SUP. CT. REV. operating 5-4 local law-enforcement ..., Michigan § loss the Court the District of Columbia. See D.C.Code 23- (“An 524(a) held that when the executing violate the Fourth officer a warrant di- require- Amendment recting dwelling 'knock and announce search of house or other remedy, building ment’ the normal Fourth Amendment or a vehicle shall execute such war- exclusion of the evidence after the found vio- rant in accordance with section 3109 of Title lation, Code.”). apply.”). does not United States And, occurred, Southerland, un- that violation must at 1085. fruits of See, law, the knock-and-an- necessarily suppressed. e.g., the common der Ohio, 643, 654, “had not been extend- requirement nounee Mapp v. 367 U.S. context at conclusively” (1961) (“all the arrest ed 1684, L.Ed.2d Founding through or even the Civil by an search and obtained unconstitutional Wilson, War. See in a federal court” [is] seizure inadmissible Nevertheless, “gradual- courts added) Elkins v. (emphasis (citing United requirement ly” extended common-law States, 213, 206, 1437, 4 364 U.S. 80 S.Ct. Court, for arrests as well. Id. This (1960))); Whiteley v. L.Ed.2d 1669 War v. example, did so Accarino United den, Wyo. Penitentiary, State 401 U.S. (D.C.Cir.1949). States, 456 179 F.2d 568-69, 560, 1031, 91 28 L.Ed.2d 306 S.Ct. (1971) (because 1995, Supreme clarified in “petitioner’s In Court violat Arkansas the knock-and- v. that rights Wilson under ed his constitutional only a crea- requirement is not Amendments[,] Fourth and Fourteenth law, but also a ture of statute and common secured an incident thereto of the requirement U.S. Constitution. excluded”). been should have 934, Specifical- at 115 514 U.S. S.Ct. 1914. however, days, long gone. are Those protects the Fourth ly, “[t]he Amendment Supreme from the “Subsequent case law” in their right people of the to be secure “rejected application of Court reflexive [a] ... against ... houses unreasonable Evans, exclusionary v. rule.” Arizona Const, seizures,” amend. searches and U.S. 1, 13, 1185, 115 514 U.S. S.Ct. 131 L.Ed.2d IV, require- and the knock-and-announce Hudson, (1995); see 547 34 U.S. at part Amend- ment “forms of the Fourth 591, (“Expansive 126 S.Ct. dicta in 2159 Wilson, 514 inquiry,” ment reasonableness suggested ... Mapp scope wide 930, 115 The S.Ct. 1914. Wilson exclusionary long rule.... But declined, however, we Court to decide (citations rejected approach.” viola- since that remedy for a knock-and-announce omitted)). tion, day. Instead, leaving question suppression for another is “last 4, Hudson, resort, at 937 n. See id. S.Ct. impulse.” [a] first 2159. Given Nevertheless, already this an Court had upon “costly truth-seeking toll law Wilson, question. Long swered the before objectives,” party “urging enforcement knock-and-an we determined exclusionary application” shoul in the requirement grounded nounce was “high” ders a burden. Pa. Bd. Proba See, McKnight e.g., Fourth Amendment. Scott, Parole tion and v. 524 U.S. States, F.2d v. United 2014, 141 L.Ed.2d 118 S.Ct. (D.C.Cir.1950). And applied the exclu (1998) omitted); (quotation marks see also in viola sionary rule to evidence obtained States, Davis v. United 564 U.S. tion of both the constitutional and statuto 2419, 2427, (2011) L.Ed.2d 285 ry requirements. (“[Exclusion’s] effect, in many bottom-line States, See, e.g. Gatewood v. United cases, suppress truth and set (D.C.Cir.1953); v. F.2d 791-92 Woods (D.C.Cir. community criminal loose without States, United 39-40 1956). society Our punishment. cases hold Yet, largely prod our cases were pill must swallow when neces this bitter Supreme uct of the times. Court’s (citation that, sary, as a last resort.” suggested but decisions era omitted)). quotation a violation of Amendment marks once the Fourth Supreme recognized 433, 460, Court has sev 96 S.Ct. 49 L.Ed.2d 1046 (1976) (evidence exceptions eral to the rule. seized state The rule if apply does the constitution used in federal civil proceedings). In do al violation is not the but-for cause of the so, ing applies Court a bal evidence, discovery of the Murray ancing test: will not Court extend the States, 538, 537, United 487 U.S. 108 S.Ct. particular rule to a context (1988); 101 L.Ed.2d 472 Nix v. unless the deterrence outweigh benefits Williams, 431, 444, 467 U.S. See, Leon, the societal e.g., costs. 468 U.S. (1984), 81 L.Ed.2d 377 or if the caus 909-10, 104 S.Ct. 3405. “attenuated,” al link is too Wong Sun v. Michigan Hudson v. neatly falls within States, 471, 487, United this line of cases. the Su- (1963). 9 L.Ed.2d 441 Additionally, preme finally question answered the over the forty years, last the Supreme it had left unanswered namely, Wilson: repeatedly Court has exempted whole cat “whether the exclusionary rule appropri- egories of cases from ate for violation of the knock-and-announce See, Davis, rule’s reach. e.g., 131 at requirement.” 590, 547 U.S. at (search compliant 2423-24 with subse 126 S.Ct. 2159. said “no” for quently precedent); overruled Illinois independent First, two reasons. a knock- Krull, 340, 349, 1160, 480 U.S. 107 S.Ct. 94 violation is too “attenuated” and-announce. (1987) (search L.Ed.2d 364 compliant with from the seizure of evidence to warrant unconstitutional); statute later deemed 591-94, exclusion. See id. at 126 S.Ct. States, Herring v. 135, United 555 U.S. Second, “[q]uite apart from the 137, 695, (2009) 129 S.Ct. 172 L.Ed.2d 496 requirement of causation,” unattenuated (violation by caused police employee’s cler 594, 2159, id. at 126 S.Ct. under the exclu- error); Evans, ical 16, 514 U.S. at 115 sionary-rule test, balancing the deterrence (violation S.Ct. 1185 caused court em by suppression benefit of does not outweigh ployee’s error); clerical Massachusetts v. the social costs. See id. at 126 Sheppard, 981, 990-91, 468 U.S. 104 S.Ct. S.Ct. 2159. 3424, (1984) (violation 82 L.Ed.2d 737 Shortly decided, after Hudson was by magistrate caused judge’s clerical er opportunity had the to determine its ror); reach. Leon, 897, United States v. 468 U.S Southerland, In United States v. we as 922, (1984) 3405, 104 S.Ct. 82 L.Ed.2d 677 sessed whether (evidence holding “Hudson’s that the obtained in reasonable reliance exclusionary rule apply did not to Fourth warrant); Scott, on defective search 524 knoek-and-annoqnce Amendment 359, viola U.S. at (parole 118 S.Ct. 2014 revoca tions” applies statutory knock-and- hearings); tion Lopez-Mendoza, INS v. announce violations 1032, 1050, under section 3109. 3479, 468 U.S. 104 S.Ct. (1984) (civil 466 F.3d at 1083. We concluded that it L.Ed.2d 778 deportation hear Powell, does. See id. at ings); Stone v. 1086. We noted that the 428 U.S. 494- (1976) governing standards 96 S.Ct. section L.Ed.2d 1067 (federal review); Fourth habeas Amendment and the United States v. common law Calandra, 338, 354, “merged” U.S. so that “[t]here 94 S.Ct. is now one (1974) 38 L.Ed.2d uniform (grand knock-and-announce jury proceed rule.” Id. at ings); Havens, 1085-86; Ramirez, United States v. see also 620, 627, (“ § 100 S.Ct. L.Ed.2d 559 3109 codifies the com (1980) (evidence area, used to impeach defen mon law this and the common law dant); Janis, Amendment”). United States v. 428 U.S. in turn informs the Fourth reasons[7] and, because the then, to search warrants “each of the

Unsurprisingly applying exclu- here oc- for not knock-and-announce violation gave Hudson viola- sionary knock-and-announce during rule to execution of an arrest curred applies Amendment tions the Fourth warrant, is back § Souther- 3109.” equally violations attempt distinguish I Yet find the play. ac- land, 466 at 1084. Southerland completely unpersuasive. Hud- Supreme Court knowledged that earlier holding no contains search-warrant son’s apply the exclusion- precedent appeared reasoning applies equally limitation of section 3109. See ary rule violations to searches and arrests. Miller, (discussing id. at 1084-85 Sabbath, A. HUDSON’S HOLDING 1755). But did 585,- those cases section 3109 because technically apply a knock-and-announce Hudson involved viola- they dealt with violation occurred the execu- arrests, not search tions connection of a search warrant. See 547 U.S. tion importantly, at 1085. More warrants. Id. That 126 S.Ct. 2159. fact does may have arrest cases to the extent the mean, however, holding that Hudson’s exclusion, required we concluded to the context: limited search-warrant See id. by were overruled Hudson. (“[W]e 1085-86; think also id. facts,” to its if Every case is “limited Hudson, not Miller and Sab- plain phrase means that court one only Hud- is bath. now must control. Not present- on the judgment based facts pronounce- recent the most son Court’s to it. But cases are decided ed most should be ment about whether evidence general to some more with reference remedy for knock-and-an- excluded as a principle normative which extends be- violations, it is also the Su- nounce but specific the yond circumstances of the analysis of only thorough preme Court’s Indeed, before it is the case the court. Southerland, issue.”) Accordingly, in the which existence such broader norms rule does not we held that the distinguishes princi- a decision which is of section 3109 apply violations from one which is ad pled rational prece- circuit expressly contrary overruled and arbitrary. hoc 1086,1084 1. See n. dent. id. Corp., v. Hous. 463

Robinson Diamond II. ANALYSIS (D.C.Cir.1972). Here, 862 for instance, Court framed the colleagues Hudson my contends—and Weaver broadly. limited 547 U.S. at 126 agree Michigan Hudson v. issue See —that review,” appellate Hud- an court to id. at Court identified the cult for 7. The Southerland 2166; follows: the knock-and- any suppress- son "reasons” as that value that from deterrent requirement protect an does not ing evidence in these cases would not be shielding “potential ev- lot,” individual’s interest id.; damage “worth a that civil actions Hudson, government's eyes,” idence from deterrence, provide id. at would still some 2165; “imposing mas- th[e] 126 S.Ct. at 2166-68; development "[a]nother remedy” suppression a knock- sive "for past half-century civil- over deters generate a and-announce violation would rights increasing profession- is the violations alleged to observe constant flood of failures forces, police including new em- alism of rule,” 2165-66; questions id. at phasis police discipline,” id. at internal long enough police about whether the waited 2168. entering for the before would "difficult (alterations original). diffi- 466 F.3d at 1084 trial court to determine and even more (“The Indeed, issue here is ... whether ment for arrest far warrants. exclusionary rule is appropriate sharply distinguishing ar between re- searches, of the knock-and-announce violation rests expressly case law quirement.”); (knock-and-an id. 126 S.Ct. conflates them. See id. (“We decide whether violation nounce violation federal officer exe “to requires ‘knock-and-announce’ cute arrest without [an] warrant must [a] in the suppression all evidence found be tested criteria identical with those” search.”). are not These statements “entry to governing execute a search war context, Maj. Op. out of “pluck[ed]” ... by rant” and “arrest virtue of a war which they are the two instances in Sabbath, rant”); 391 U.S. at 88 S.Ct. pre- question Court framed the (same). Michigan See also generally opinion And nowhere in the did sented.8 Summers, 692, 704, v. open possibili- Court leave the Hudson (1981) 69 L.Ed.2d 340 (downplaying a different in the arrest ty of outcome “the distinction between a search warrant between any context draw distinction warrant”); and an Malley Briggs, searches and arrests. n. (1986) (same). Indeed,

Such distinction would make little L.Ed.2d 271 conceptually. There is “one uni- First has expressly rejected sense but Circuit my colleagues Souther- form rule.” distinction draw here. See land, (“Hudson Pelletier, governs 466 F.3d at 1086. The rule F.3d at 201 applies residence, all unauthorized entries into a in the equal force context of an arrest Jones, (“In warrant, warrant.”); have a whether search F.3d at 36 an arrest warrant or no warrant all. wake of we have recognized Miller, absence rule for knock- violations, There provided po is not one knoek-and-an- and-announce requirement valid nounce for search warrants lice have a arrest warrant ... and inside.”).9 require- target and another knock-and-announce reason to believe the 1640, (1990) colleagues emphasize My 8. the word 110 109 L.Ed.2d 13 —a involving “search” in the Hudson statement a ar- Court's case warrantless residential Hudson, 593, "[w]e decide whether violation of the rest. See 547 U.S. at requires sup- ‘knock-and-announce’ rule 2159." It relied on Miller and Sabbath as well. pression of all evidence found in the search." See 126 S.Ct. 2159. id. at Hudson, S.Ct. 2159 126 added). (emphasis is un- 9. had Their italicization Before Seventh Circuit “search,” helpful. exclusionary The Court said not that the rule likewise concluded police apply warrant.” Whenever the enter "search does not knock-and-announce viola- tions, Langford, a residence to execute an warrant and arrest States v. F.3d see United 314 (7th plain Cir.2002), evidence incident or in seize to arrest 894-95 and had extended view, context, a “search” occurs. to the holding arrest-warrant Smith, Fed.Appx. United States 171 colleagues My also note that the Hudson Cir.2006). (7th apparently It 519 has precedents concerning Court "relied on ... position departed post this Maj. Op. warrants.” That is un- search —Hudson. Poskon, (7th See 603 F.3d Evans v. surprising, acknowledging as the a “[clases Cir.2010) (“The exclusionary rule is used typically to knock and need involve only of all a subset constitutional'violations— Tomko- the execution search warrants.” vicz, cases). making supra, force in (collecting excessive arrest 1837 n. 92 event, a any rely seizure is not basis for the exclusion In the Hudson Court did not exclusively Michigan, precedents. evidence.... Hudson v. on such Its attenua- Cf. analysis, example, primarily L.Ed.2d tion was Harris, (2006) (violation grounded in New of constitutional knock-and- York v. them. these cases—it overruled have declined invita- arrest other circuits And See, Southerland, e.g. facts. to limit to its at 1085-86. tions Hudson See F.3d Smith, (“Nor, contrary to 526 F.3d at 311 held, directly con- therefore Southerland does suggestion, Hudson defendant’s] here, [the position trary my colleagues’ have the officers a search apply when governing Hudson cannot be read as warrant____[T]he interests served only. And Miller search warrants nothing ... rule ‘have knock-and-announce my position, no “obstacle” to Sabbath are evidence,’ to do with seizure 40, because, Maj. according to the Op. to do whether Fourth nothing with Court, by Hudson. they were overruled the officers to obtain required Amendment Southerland, Al- at 1085-86. See F.3d nothing There is about warrant. though could be drawn be- a distinction of a that increases the presence warrant (Miller and tween a warrantless arrest vio- deterring value of knock-and-announce Sabbath) and the execution of an arrest lations, tells which the Court us ‘is (this case), the under- distinction lot,’ mitigates or that ‘substan- worth If, as we my colleagues’ position. cuts suppressing the evi- tial social costs’ Southerland, rule said (citations omitted)); Ankeny, 502 dence.” to a apply does not (“[W]e decline to limit F.3d 835-36 police have no violation when so to its narrowly Hudson facts. warrant, plainly inapplicable then it that, it clear Supreme made because Keining- when police one. protects in- knock-and-announce rule States, ham v. United to do nothing that ‘have with the terests (D.C.Cir.1960) (“[I]t is inconceivable that evidence, ... seizure of acting required less of an officer should inapplicable’ to knock-and-announce him required without a warrant than is violations.”). warrant.”). sum, I be- under a valid Moreover, interpret we do not Hudson lieve of Hud- interpretation Southerland’s discussed, on blank slate. As South directly scope son’s refutes the search/ar- erland, we whether considered my colleagues rest draw. distinction two Court cases—Mil overruled analysis was not dicta and Southerland’s which and Sabbath —both of involved ler unanimously by the full was endorsed knock-and-announce violations the ar footnote; accordingly, we Court via Irons Sabbath, rest context. In Miller it here. States v. should follow See United the defendants in arrested Emor, (D.C.Cir.2015) 785 F.3d respective their residences without an ar (“[W]e panel’s deci- prior cannot overrule complying rest warrant and without sion, via an footnote or en except Irons requirement. the knock-and-announce See review.”). banc Sabbath, 586-87, at 303-04, Miller, 1190. 357 U.S. S.Ct. B. HUDSON’S REASONING Court held both cases that directly control Even if Hudson did not re the knock-and-announce violations (on this its own and as inter- case terms quired suppression of the evidence found Southerland), reasoning ap- preted in Sabbath, inside. plies equal force the arrest-warrant 1755; Miller, 357 U.S. S.Ct. Southerland, deemed the however, context. The Hudson Court 1190. In we inapplicable to knock- rule governed concluded exclusion).” omitted)). justify citation does not lone plain-view and-announee violations on two alternative observations were invalid be- grounds: attenuation and cost-benefit entry bal cause the was invalid because the ancing. grounds Both are holdings and so did not knock and announce. my colleagues Weaver and must success assuming Even Weaver’s causation the fully distinguish them both. See Woods ory correct, he wrong to suggest that Co., 535, 537, Realty Interstate the absence of but-for causation is the (1949) (“[W]here 93 L.Ed. 1524 “core” of Hudson. Appellant’s Br. 21. a decision rests on two grounds, or more contrary, On the the absence of but-for relegated none can be category to the comprised causation all of two sentences of dictum.”). view, In my they obiter suc Hudson, the Court’s opinion. See cessfully distinguish neither. Indeed, U.S. at 126 S.Ct. 2159. expressly Hudson Court downplayed the

i. Attenuation significance of but-for causation. See id. spends Weaver most of his brief explain- (“Our cases show that but-for causality is here, why ing unlike in only necessary, sufficient, not a condition knock-and-announce violation was the but- (“[Exclusion suppression.”); for id. may discovery for cause of the of the evidence. not premised on the mere fact that a argument goes His as follows: constitutional violation was a ‘but-for’ (cid:127) cause of obtaining evidence.” (emphasis Because the ATF officers violated the added)); (“[E]ven id. illegal entry requirement, if here could be characterized

Weaver did not but-for opportunity have an inside, cause of discovering what was surrender himself the door. have never held that evidence is fruit of (cid:127) Because Weaver did not surrender poisonous tree simply because it would door, himself at the the officers forced not have light come to but for illegal way their inside. added) police.” actions of the (emphasis (cid:127) Because were inside Weaver’s omitted)); (“[B]ut (quotation marks id. apartment, the officers were able to cause, logical causation sense marijuana plain see the view. alone, can be too justify attenuated to ex (cid:127) Based on plain-view their observa- (quotation clusion.” marks and citation tions, the officers a search obtained. omitted)); (“At id. at 126 S.Ct. 2159 warrant. when, tenuation ... given occurs even (cid:127) executing warrant, the search connection, direct causal pro the interest officers obtained the evidence ulti- by guarantee tected the constitutional mately used to convict Weaver. has been violated would not be served reverse, Stated in Weaver believes the suppression of the evidence obtained.” added)).10 search warrant was invalid because (emphasis The real core of times, my 10. At colleagues appear agree view, ultimately support rence does not their however, with Weaver that primarily Hudson was broadly about as he also stated more Maj. absence of but-for suppression causation. See is unwarranted in the “context of Op. They emphasize requirement” Justice Ken- the knock-and-announce writ concurrence, nedy's large. in which he said "the Id. at see also id. (“[E]xtension properly failure to wait at the door cannot be at 126 S.Ct. 2159 [of the having discovery described as caused the of rule to knock-and-announce vio- evidence." significant practical also would lations] have J., (Kennedy, concurring part S.Ct. 2159 implications, adding in to the re- list of issues concurring judgment). and in quiring His concur- ques- resolution at the criminal trial J., dissenting) (Breyer, is the con 126 S.Ct. 2159 analysis Hudson’s attenuation (“[The by protected majority] fully interests does describe clusion that “[t]he values, ... ob requirement purposes, and the knock-and-announce the constitutional shielding potential the of not include the jectives underlying do knock-and-an eyes.” government’s from the requirement. evidence That ... [also] nounce rule that the knock-and-an Id. The interests occupants’ privacy by assuring the protects protect safety, does requirement nounce government agents not en them that will — nothing to do dignity property and with complying ter their home without —“have at the Id. the evidence.” seizure Yet, according requirements....”). those 594, 126 2159.11 S.Ct. majority, only “privacy” the to the Hudson protected by the knock-and-an interests contends, my colleagues

Weaver requirement are “those elements nounce re- agree, that destroyed by ... that can a sudden be another interest: quirement protects entrance,” ability “get ie. to out out keeping police in privacy interest bed,” ... “pull on clothes” and Maj. “prepare The Op. one’s See 37-39. home. 594, 126 entry police.” in for the of the Id. at precisely Hudson made dissent (majority op.); id. at argument. at S.Ct. see also same See (“The by interests'protected such whether officers entered tions (em- requirement ... do the knock-and-announce waiting 10 20.” home seconds or after shielding potential not include the added)). fully phasis importantly, he More Smith, government’s eyes.”); from accord through majority joined I III” of the “Parts ("Nor,. contrary [defen- 526 F.3d (the cost- opinion in Hudson attenuation and suggestion, apply only dant's] does Hudson holdings). balancing id. at benefit when the officers have a search warrant. The court, As a lower we are 2159. explanations given by Hudson are not con- majority Court's bound follow in which the violate fined situations opinion, single Jus- the concurrence of a obtaining rule the knock-and-announce after States, tice. See v. United Hansford warrant....”). puts As one commentator (en banc); (D.C.Cir.1962) it: Duvall, 604, 610 United 740 F.3d States J., holding (D.C.Cir.2013) confined] Hudson’s (Kavanaugh, concurring [cannot be "evidence in a described warrant”.... banc) ("Justices rehearing en who denial purposes of the knock-and-announce join may express majority of course addi- ... identified the Court did not include concurrence, thoughts tional in a but concur- shielding the au- undescribed items from rences do lower in cases not bind courts Surely, oversight thorities. this was no majority opinion.”). where Ulti- there is language telling limiting more than agree mately, my colleagues we must used to what rule does not describe "employ legal framework in consid- Hudson’s safeguard. explanation for the Court's ering remedy ap- whether in a war- reference to "evidence described here,” including propriate its attenuation may rant” well be that the evidence balancing Op. holdings. Maj. 35. cost-benefit event, variety. any was of majority is inconceivable that would My suggest colleagues the Hudson suppression gun if the ordered analysis Court limited its attenuation possessed a officers had noting “the context search-warrant contraband narcotics had seized protected knock-and-announce rule has never 'plain view' a lawful firearm in preventing govern- ... one's interest in search. And the cost-benefit struck balance seeing taking ment evidence described for evi- in Hudson would no different in a warrant.” specified dence that had not been however, Elsewhere, added). (emphasis search warrant. Tomkovicz, any (citation point the Court made the same without supra, at 1840 & n. 105 omitted). "search and some' warrant” limitation. See id. footnotes

55 (“[C]ases 593, excluding the the law 126 S.Ct. 2159 have violated must bear rela- some say unlawful fruits of warrantless searches tion to which purposes the the law is to nothing serve”). of ex appropriateness about the And arrest-warrant require- protected to vindicate the interests clusion ments, requirements, like search-warrant require by the knock-and-announce protect to privacy are sufficient the inter- by protected ... The interests the ment. colleagues my identify. est Payton, See requirement quite are knock-and-announce 602-03, (“[A]n 445 at 100 U.S. S.Ct. 1371 Weeks, alia, (citing, 232 different.” inter requirement may warrant afford 383, 341; 367 Mapp, 34 S.Ct. U.S. U.S. than a protection less search re- added)). 1684) 643, S.Ct. As (emphasis 81 quirement, but will interpose suffice to court, contradict a lower are not free to the magistrate’s probable determination of descrip Court’s the exhaustive the cause between zealous officer the by the protected tion of interests is citizen. If there sufficient of a requirement. See participation felony citizen’s in a per- to FERC, 587 1135 Winslow judicial suade a officer that is his arrest (“Vertical (D.C.Cir.2009) decisis— stare justified, constitutionally it is reasonable letter a critical spirit both in —is require open him to his offi- doors to the Judiciary of our aspect hierarchical headed law.”); Summers, cers of the at 452 U.S. ” by supreme Court.’ U.S. (quoting ‘one (same). sum, S.Ct. Hud- Const, 1)). 111,§ art. analysis son’s attenuation exempts from course, require the arrest-warrant Of exclusionary rule a knock-and-an- by a a warrant be neu ments —that issued nounce violation committed the exe- magistrate probable tral based on cause cution arrest warrant. of an police to believe and that have reason suspect present is at the described Balancing ii. Test locale, York, Payton v. U.S. New analysis if Hudson’s Even attenuation 602-03, 100 S.Ct. 63 L.Ed.2d 639 warrants, were limited search privacy (1980) protect interest — balancing-test analysis assuredly Court’s Weaver identifies. See id. at not. Hudson Court concluded 1371. But he those concedes applying social costs exclusion- were here. requirements complied with ary rule to knock-and-announce violations ATF Reply See Br. 5 n. 2. The Appellant’s far the deterrence exceed benefits. had a valid arrest warrant and at 126 S.Ct. This U.S. had right therefore to enter Weaver’s not free to recalibrate the scales. apartment effectuate his arrest. See Florida, Tribe See Seminole Fla. v. 602-03, 100 Payton, U.S. S.Ct. 1371. 44, 67, 134 L.Ed.2d The knock-and-announce he iden violation (1996) (“When opinion issues alone, tifies, standing implicate does not Court, it is not the result also but privacy keeping his interest opinion portions necessary those and, thus, bay suppres his residence bound.”). which we are result sion would vindicate it. See adhering Faithfully Hudson’s cost-bene- think Ceccolini, analysis, fit I States v. United (1978) plainly apply to arrest warrants does 55 L.Ed.2d Indeed, (for the Hudson bal- pen as well. Court’s apply, “[t]he rule to Government, analysis way no relied on upon ancing alties visited non of a upon public, turn its officers existence vel search warrant. because allegation of a It is the mere in Hudson are ex- id. identified costs violation, the search- regardless here. In both knock-and-announce actly the same contexts, sup- merit, arrest-warrant warrant and will ultimately whether it has that dangerous crimi- pression “releas[e] will require suppres- via litigation” “extensive society” by excluding “relevant nals into hearings. sion Id. And burdens Hudson, 547 incriminating evidence.” in claims judiciary adjudicating these It will also U.S. at greater will than usual: be even a judicial by “generating] resources drain require- Unlike-the warrant or Miranda failures alleged flood of to ob- constant ments, compliance readily which rule,” [knock-and-announce] serve the (either was or determined there was require litigation” which claims “extensive warrant; warning either the Miranda “difficult,” inquiries like fact-specific over not), it given, or was what constitut- was a ‘reasonable wait “what constituted ” in particu- ed a time” “reasonable wait exception time’ and whether an (or, matter, many for lar case how requirement applied. knock-and-announce waited), in fact or police seconds the Id.; see also id. S.Ct. 2159 suspi- there “reasonable whether was that knock-and-announce re- (explaining cion” of the sort that would invoke quirement easily applied” [an] “is not easy precisely “it to determine what exceptionf is not the knock-and-announce do”). And, contexts, in both officers must is difficult for the trial requirement], consequences suppression the “massive” court to determine and even more diffi- encourage police long- to “wait will officers appellate cult for court to review. requires,” causing “pre- er than the law bottom, with, my colleagues argue Id. At against violence officers” and “the ventable High distinguish, rather than Court’s destruction of evidence.” Id. analysis in Hudson. Indeed, S.Ct. 2159. never con- Weaver tends otherwise. My colleagues’ will endan- decision

My colleagues applying claim that ger law-enforcement officers the same exclusionary rule in the arrest-warrant way predicted. that Hudson point trigger context will not a flood burden- in Hudson not that exclu- made rarely some “officers vi- litigation because sionary rule will from police deter Maj. olate the knock-and-announce rule.” require- violating knock-and-announce they 44. But Op. point miss the made it ment but will lead over-deter- Hudson. Whether or not knock-and- rence: occurs, every announce violation in fact consequence incongruent Another criminal defendant will claim did be- remedy applying [of entering lottery cause cost of this “[t]he violations] small, but jackpot would be enormous: police refraining would be officers’ evidence, suppression of all amounting entry knocking an- timely after many get-out-of-jail-free cases to card.” observed, nouncing. As we have U.S. at 126 S.Ct. 2159. they of time must neces- amount wait is Thus, every case the in which uncertain. If the sarily consequences find evidence execution of an ar- running afoul of the rule were so mas- warrant, rest can defendant and will sive, officers would inclined to wait claim violated the knock-and- longer than the requirement by, example, requires producing law — long preventable against waiting enough entering. before violence officers.... omitted). (citation today, probable this After cause reasonable suspicion. Id. Ford, every United States uncertainty will confront risk and (D.C.Cir.1995) Buie, (quoting war- 494 at who executes an arrest U.S. police officer 334, 1093); see also United in the District of Columbia. rant Thomas, 282, States v. 429 F.3d 287 in the Hud- matter costs identified No (D.C.Cir.2005) (Buie suspicion- authorizes son, colleagues they my ultimately believe entirety less of “the small sweep of a outweighed by an in alleged are increase apartment”). The sweep officers can also deterrence benefits the arrest-warrant broadly through they more the residence if Maj. Op. See 43-44. Weaver context. a suspicion danger have reasonable contends, my colleagues and agree, Buie, may present, ous confederates be see a incentive to police greater officers have 334, 494 at 110 U.S. S.Ct. 1093—a common require- violate the knock-and-announce suspicion arresting suspected when a drug executing ment warrants than when arrest Weaver, dealer like see v. United States warrants: if enter search officers can (8th Cash, Cir.2004) F.3d 378 749 they the sus- straightaway, can search (“[A]n arresting officer a suspected drug they than pect’s broadly residence more justified ... is in conducting trafficker a could. But “the of deter- otherwise value out of sweep Buie concern that could there depends upon strength rence lurking be individuals rooms other and, act” incentive commit the forbidden may who resort to violence to thwart us, as the Hudson Court reminds “deter- arrest.”). importantly, Most latter this rence of knock-and-announce violations type sweep go allows officers to inside a lot.” 547 at 126 worth U.S. even if the residence arrestee surren already bypass 2159. Officers can S.Ct. ders the door. States See United outside if requirement the knock-and-announce (D.C.Cir. 48 F.3d Henry, 1284 a they suspicion” “reasonable 1995) (Buie protective sweep authorizes will occupant destroy violently evidence or though police residence “the arrested even Moreover, resist arrest. Id. once ar- outside defendant rather than inside occupant, police rest the can his search dwelling”). his reach, person and areas within his see Weaver, however, According po In re Sealed Case F.3d 153 protective sweep lice conduct a if cannot (D.C.Cir.1998), protec- conduct suspect surrenders himself at sweep any tive of the home and seize something opportunity he has no door— view, incriminating in plain see police do when the the knock-and- violate Buie, Maryland v. U.S. Thomas, requirement. But announce (1990). L.Ed.2d 276 These 287; Henry, at 1284. F.3d at turn, searches, produce will often Yet, police forego that the will the notion cause a full- probable necessary to obtain knocking announcing just to broaden blown search warrant. authority their search defies common colleagues My protective believe the sub prefer sense. Officers no doubt sweep by authorized the Fourth Amend- ject suspected of an warrant —a fel arrest ment is more “limited” than it in fact is. on, at you voluntarily mind surrender —to Maj. Op. 38. residential course him breaking surprising the door arrest, can in closets and life-threatening struggle “look[] risks a inside. Miller, 12, 78 immediately adjoining other at spaces 313 n. place (“Compliance of arrest from which an attack could the knock-and- [with immediately any requirement] safeguard is ... a launched” without announce given the avail- sionary required, might be police themselves who

for the down inter- ability potential liability and be shot civil prowlers mistaken for Sabbath, householder.”); a fearful police discipline. nal (“[T]he rule of If a law- 126 S.Ct. 2159. federal officers, safeguard[] ... announcement knock-and- officer violates the enforcement mistaken, an unan upon might be who executing an requirement while home, for some into nounced intrusion warrant, may the arrestee file there.”). Telling to be right with no one him. against action See id. Bivens no evidence that ly, cites Weaver lawyers 126 S.Ct. 2159. Public-interest violate the knock-and- routinely officers suit, at handle id. willing would be to during the execu requirement 2159; 598, be 126 S.Ct. suit would Hudson, 547 of warrants. tion arrest Cf. attor- given availability of worthwhile (“[Pjolice 599, at 126 S.Ct. 2159 U.S. fees, 2159; 126 ney’s id. at S.Ct. take the forces across the United States would be enti- the officer-defendants not seriously. of citizens rights constitutional immunity, 126 qualified to id. at tled reforms wide-ranging There have been Hudson, According 2159. to we S.Ct. education, of training, supervision liability that “civil is an must ]” “assume! [Mjodern forces police police officers.... Likewise, Id. we effective deterrent.” (quotation professionals.” are staffed with police that “internal disci- must “assume” omitted)). Indeed, my colleagues marks well. adequate is an deterrent as pline” to that knock-and-announce appear agree 598-99, 2159. de- at 126 S.Ct. Police Id. the execution of arrest violations incentive their partments have an to train ],” with or without warrants will be “rare! to officers follow 44. Maj. Op. rule. liability, in order avoid municipal then, it, to be de needs What offi- police id. at 126 S.Ct. Herring, 555 at terred? Cf. have an for the comply cers incentive absence of (emphasizing 129 S.Ct. 695 careers, of their id. sake because “the deterrent “systemic error” substantial,” sum, of must suppression apply- effect be In deterrence benefit of Hudson, “marginal”); at not exclusionary rule to ing the knock-and- (Kennedy, J., concurring in 126 S.Ct. 2159 meaningfully announce violations is (sup part concurring judgment) context than in the greater the arrest inappropriate to absence pression due most, colleagues At my search context. knock- “any pattern of of demonstrated the deterrence have demonstrated adde (emphasis violations” and-announce of could be somewhat suppression benefit d)).12 This higher in the arrest-warrant context. enough. are go does not far The 1960s greater if for Even were need there longer “hey- no in the context, over and are in the arrest-warrant deterrence rule. Id. at days” of my colleagues attempt explain make no is a exclu- 2159. The rule “last resort” why the “massive deterrence” of the (“We Elsewhere, colleagues purpose my to announce their “[t]he. 12. claim failed warrant”) that officers gain entry apart- facts this case” demonstrate to his order strategically will violate the knock-and-an- knocked, fact, officers an- ment. requirement their search nounce broaden (“Police”) authority and waited nounced their assuming authority. Maj. Op. 43. Even attempting that make before to enter —actions single ever evidence of a anecdote can purpose catch sense was to little if their trend, alleged any larger Weaver has at by surprise. Weaver stage litigation that the ATF this against strong presumption execution search warrants and and there is a 2159; at alike. application. warrants its Id. S.Ct.

Davis, The mere “exis S.Ct. reasons, For the foregoing Hudson v. ... of deterrence benefits is “not tence” Michigan governs I this case. would af- suppression. condition” sufficient firm district court’s denial Weaver’s S.Ct. and, suppress accordingly, motion to I re- Calandra, U.S. at spectfully dissent. (“[I]t not follow that does requires Fourth adoption Amendment

every proposal might deter mis Leon,

conduct.”); (same). Instead, deter “the suppression

rence benefits of out must costs,” Davis,

weigh heavy added) condition, (emphasis —a CORPORATION, SALEM HOSPITAL almost never satis Court finds Doing Hospital Business as Memorial cases). supra p. fied. See 49 (collecting County, of Salem Petitioner say did not that the Court it was close: said the costs balance social “considerable,” are the incentive violate NATIONAL LABOR RELATIONS requirement BOARD, Respondent preexisting “minimal” and the deterrences “substantial.” 547 U.S. at Health Professionals Allied My 2159. colleagues may have added a Employees, AFT/AFL-CIO, pebble to one side scale but Intervenor. ignored the boulder the other side. Nos. 12-1009. Applying rule knock- and-announce violations the arrest-war Appeals, United States judicial resources, rant context will drain District of Columbia Circuit. guilty go free let criminals and risk the police lives of officers. See id. at Dec. 2015.

S.Ct. 2159. Compared these “substan costs,” social

tial id. possibility enter officers will knocking prevent

homes without occu surrendering from

pants at the door—a proven

risk that is nor plausible— neither

is trivial. Even if this worst-case scenario theoretically possible, the “incremental” gained deterring

benefit does

justify remedy suppres blunderbuss Harris,

sion. U.S. at Instead, analysis the cost-benefit

performed exclu Hudson renders the

sionary inapplicable to knock-and-an

nounce violations occur

Case Details

Case Name: United States v. Michael Weaver

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 4, 2015

Citation: 808 F.3d 26

Docket Number: 13-3097

Court Abbreviation: D.C. Cir.