Lead Opinion
Opinion for the Court filed by Circuit Judge PILLARD.
This appeal requires us to answer a question left unresolved by the Supreme Court in Hudson v. Michigan, 547 U.S. 586;
The knock-and-announce rule requires that, before officers executing a warrant enter a home, they knock on the door and announce their identity and purpose, and then wait a reasonable time before forcibly entering. In Hudson, the Supreme Court held that, when officers violate that rule in executing a search warrant, exclusion of the evidence they find is not an appropriate remedy. The Court reasoned that the officers would have discovered the evidence in any event when they went through the house under the authority of the valid search warrant. As the Court emphasized, the knock-and-announce rule “has never protected” any “interest in preventing the government from seeing or taking evidence described in a warrant.” Id. at 594,
Unlike the officers in Hudson, who had a warrant to search the home, the officers here acted pursuant to a warrant to arrest a person. An arrest warrant reflects no judicial determination of grounds to search the home; rather, it evidences probable cause to believe that the arrestee has committed a crime, and authorizes his arrest wherever he might be found. If an arrestee is found away from home — at work, on the street, or at someone else’s home — the privacy of his home remains inviolate. So, too, if an arrestee is not at home when officers seek him there, or if he comes to the door and makes himself available for arrest, the arrest warrant does not authorize officers to enter the home. Any prerogative an arrest
An individual subject to an arrest warrant accordingly retains a robust privacy interest in the home’s interior. That privacy interest is protected by requiring law enforcement officers executing an arrest warrant to knock, announce their identity and purpose, and provide the arrestee with the opportunity to come to the door before they barge in. And, where evidence is obtained because officers violated the knock-and-announce rule in executing an arrest warrant at the arrestee’s home, the exclusionary rule retains its remedial force. Under Hudson’s own analytic approach, then, exclusion of the evidence may be an appropriate remedy.
Justice Kennedy took care to underscore in his separate opinion in Hudson that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.” Id. at 603,
We thus analyze the factors the Court considered in Hudson to determine whether the exclusionary rule applies when the knock-and-announce rule is violated in the arrest warrant context. We consider whether the violation causes the seizure of evidence such that evidentiary suppression furthers the interests underlying the knock-and-announce rule, and whether the benefits of applying the exclusionary rule outweigh its costs. Examining those factors, we conclude that exclusion was the appropriate remedy here, where officers executing a warrant for defendant Michael Weaver’s arrest sought him at home, violated the knock-and-announce rule, and discovered Weaver’s marijuana upon their forced entry into Weaver’s apartment. Accordingly, we reverse the district court’s decision to the contrary.
I.
Federal agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives began investigating defendant Michael Weaver in 2008, when he came to their attention during the course of a drug-related investigation targeting a different suspect. As part of their investigation into Weaver, the agents searched through trash outside his home and found marijuana. They also learned from the target of the first investigation that Weaver had sold drugs for more than a year and trafficked in significant quantities of marijuana. The agents executed a warrant to search Weaver’s residence in late 2009 and discovered more than 500 grams of marijuana, $38,000 in cash, and drug packaging materials. The agents also reviewed Weaver’s bank records and identified regular, unexplained cash deposits and a balance of more than $100,000 from unknown sources. In April 2010, the agents relied on that information to obtain a warrant for Weaver’s arrest. Prosecutors indicted Weaver on 52 separate counts, including possession with in
The government was unable to apprehend Weaver until 2012, when the agents learned the location of his new residence. After arriving at Weaver’s building, the agents knocked on his apartment door twice. There was no answer, but the agents heard movement inside. They were not concerned that Weaver would flee out a-window because the apartment was on a high floor. Less than a minute later, the agents announced “police” and immediately used a key they had obtained from the building’s concierge to unlock the door. They did not inform Weaver that they had a warrant to arrest him. As the agents attempted to open the door, someone inside tried to hold the door closed. The officers were able to push the door open, and, after a brief struggle, they subdued Weaver, arrested him, and removed him from the apartment.
In the course of arresting Weaver, the officers smelled marijuana. One of the officers testified that as soon as he “came in” and “looked to the left” or “turned left” toward the kitchen, he observed “bags of marijuana” on the counter. Based on those observations, the officers obtained a search warrant for the apartment and found several kilograms of marijuana, two tablets of oxycodone, a bag of the drug methylenexdioxymethcathinone (commonly referred to as MDMC, or bath salts), and nearly $10,000 in cash. The government then charged Weaver with three additional counts: one count of possession with intent to distribute marijuana and two counts of possession of a controlled substance.
At trial, Weaver moved to suppress the evidence seized during the 2012 search of his apartment. He contended that the warrant authorizing that search derived solely from the observations agents made while executing the arrest warrants, and that the agents were not legally authorized to be in his apartment when they made those observations because they had violated the knock-and-announce rule. Weaver further argued that Hudson did not preclude the application of the exclusionary rule to his case.
The district court rejected Weaver’s contentions and denied his motion to suppress. The district court first concluded that there was no knock-and-announce violation because the officers knocked, announced “police,” and then waited a reasonable time before opening the door. Even if there had been a violation, the court held that Weaver would not prevail because it concluded that Hudson held the exclusionary rule inapplicable to knock- and-announce violations generally.
In a separate order, the district court held that Weaver’s speedy trial rights were violated with respect to the first 52 counts of the indictment, and so dismissed them. The government then entered into an agreement with Weaver concerning the more recent counts of the indictment. The government dismissed the counts for possession of oxycodone and MDMC, and Weaver agreed to a bench trial on stipulated facts on the remaining charge of possession with intent to distribute marijuana. After that trial, the district court found Weaver guilty.
Weaver appeals the district court’s denial of his suppression motion. On such an appeal, we review the court’s legal conclusions de novo and its findings of fact for clear error. United States v. Pindell,
II.
A.
The Fourth Amendment protects “[t]he right of the people to be secure in
Notwithstanding the district court’s conclusion to the contrary, there is no dispute on this record that the constitutional safeguards imposed by the knock- and-announce rule were violated here. As the government correctly concedes on appeal, federal agents violated the rule by failing to announce their purpose before entering Weaver’s apartment. Appellee Br. 19-20; see also Miller,
Where it applies, the exclusionary rule prohibits the government from introducing in its case in chief evidence obtained in violation of the -Fourth Amendment. See, e.g., Mapp v. Ohio,
B.
In Hudson, the Supreme Court considered whether exclusion was warranted
As to causation, the Hudson Court reasoned that the exclusionary rule is only triggered when the constitutional violation is “a ‘but-for’ cause of obtaining evidence,” provided that causal connection is not “too attenuated.” Id. at 592,
Even if the knock-and-announce violation had been a but-for cause of obtaining the evidence, causation in Hudson was too attenuated. Id. at 592-93,
The Court in Hudson separately examined whether the “deterrence- benefits” of applying the exclusionary rule to violations of the knock-and-announce rule during search warrant executions “outweigh its substantial social costs.” Id. (internal quotation marks omitted). The most significant of the “considerable” costs of applying the exclusionary rule is the “grave adverse consequence that exclusion of relevant incriminating evidence always entails,”
The Court weighed those costs against the deterrence value of applying the exclusionary rule in the search warrant context, which it concluded is minimal. Id. at 596,
As a result of those considerations, the Court held that evidentiary exclusion was not required when officers violated the knock-and-announce rule in the course of executing a search warrant.
III.
A.
Hudson has not answered the question before us. The government argues, and the dissent agrees, that because the exclusionary rule was held inapplicable in Hudson, it is equally inapplicable here. We of course employ Hudson’s legal framework in considering whether the exclusionary remedy is appropriate here. But we cannot accept the government’s contention that our analysis begins and ends with the outcome of Hudson. We must independently examine whether the logic of Hudson applies here to the same effect, or whether the arrest warrant context at issue here is so materially distinct. that it requires a different result.
The government and dissent propose we follow an interpretation of Hudson that is divorced from its context. They contend that Hudson held that the exclusionary rule has no application to any violation of the knock-and-announce rule, regardless of whether the violation occurred during the execution of a warrant to search the home or to arrest a suspect. Dissent at 45-46. In their view, Hudson already held that the exclusionary rule is inapplicable whenever the knock-and-announce rule is violated — even where officers have only an arrest warrant and not a search warrant.
Hudson does not support that approach. The dissent plucks general statements from Hudson to argue that the Court intended its holding to extend beyond the search warrant context. See Dissent at
We reject the government’s and the dissent’s insistence that the issue here has already been decided by Hudson. It should go without saying that a holding can be understood only by reference to the context of the case in which it was rendered. See Phelps v. United States,
The Supreme Court’s Fourth Amendment cases vividly illustrate that the precise scope and limits of -a constitutional principle articulated in one case often are not apparent until the Court has had opportunities to apply it in new situations that help to elucidate it. Compare Florida v. Jardines, — U.S. -,
The Court in United States v. Knotts,
We cannot presume that Hudson mandates the same result for violations of the knock-and-announce rule in both the search and arrest warrant contexts. Instead, we must assess whether, as Weaver argues, the arrest warrant context is materially distinguishable from the search warrant context. The government’s and the dissent’s efforts to find in Hudson a categorical rule deciding this case cannot be squared with the pervasive and necessary incrementalism of judicial decision making. Hudson addressed the propriety of the exclusionary remedy for a knock-and-announce violation in the search warrant context. The Court never mentioned the parallel question as it arises in the context of executing arrest warrants. For the reasons discussed in the next sections, we conclude that the differences between search and arrest warrants distinguish this case from Hudson.
B.
The requirements for search warrants and arrest warrants protect distinct privacy interests, and the two types of warrants authorize law enforcement officers to take different actions. The interests the knock- and-announce rule protects correspondingly differ, depending on the type of warrant law enforcement officers are executing. Because of those differences, the Court’s analysis in Hudson cannot apply the same way or yield the same result here.
An individual’s interest in protecting the privacy of his home is of the highest order. See, e.g. Jardines,
privacy and security in the home are central to the Fourth Amendment’s guarantees as explained in our decisions and as understood since the beginnings of the Republic. This common understanding ensures respect for the law and allegiance to our institutions, and it is an instrument for transmitting our Constitution to later generations undiminished in meaning and force. It bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry.
Law enforcement officers’ authority under an arrest warrant to enter and search a home is both more conditional and more circumscribed than their authority under a search warrant. Officers armed with a search warrant may enter a home and search for the items described in the warrant anywhere in the home where those items might be located. See Maryland v. Garrison,
When officers have lawfully accessed an area of the home in search of an arrestee, they may seize items in plain view that they have probable cause to believe are evidence of a crime. See, e.g., Arizona v. Hicks,
An arrestee’s location at the time of arrest is likely to depend on whether officers comply with the knock-and-announce rule. The knock-and-announce rule requires officers to announce their presence and purpose and give an arrestee an opportunity to open the door of his home. See Miller, 357 U.S. at 308,
As the Supreme Court recognizes, when officers break the door of a home to arrest someone, they “invadef] the precious interest of privacy summed up in the ancient adage that a man’s house is his castle.” Miller, 357 U.S. at 307,
A person’s right to the privacy of his home does not require him to have any special reason for claiming that privacy; the Constitution recognizes a person’s privacy in the home as valuable in and of itself. It is, however, easy to understand the additional value of the knock-and-announce rule to a person facing arrest- at home, who may have any number of reasons for wanting to surrender himself at the door and shield the remainder of his home from view. Someone living with his family might, for example, prefer to surrender himself on his doorstep to avoid being arrested in front of his family members, especially children. A person may also desire to keep private and personal papers and effects in the home, or the fact or identity of a guest, from government agents’ view. The Fourth Amendment’s protection of the privacy of personal spaces, documents, and things at home applies whether or not they are evidence of wrongdoing or a potential source of embarrassment. “Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.” Miller, 357 U.S. at 313,
C.
Contrary to the argument advanced by the dissent, our decision in United States v. Southerland,
The dissent draws an unwarranted implication from Southerland’s discussion of two older cases — Miller and Sabbath— that had reversed denials of evidentiary suppression. See Sabbath,
The Supreme Court’s discussion in Hudson itself was similarly limited. That Court referred to Miller and Sabbath in confirming the common historical roots of the statutory and constitutional knock-and-announce rules, but did not say anything about overruling the suppression remedy where officers fail to knock and announce before entering homes to effectuate arrests.
In sum, we agree with Southerland that Hudson provides the relevant legal framework for determining whether exclusion is the appropriate remedy when officers violate the knock-and-announce rule. But, for the reasons already discussed, neither Hudson nor Southerland considered or answered the question before us.
D.
Finally, the out-of-circuit cases the dissent cites, Dissent at 46 n. 3, 51-52, provide at most weak support for the proposition that Hudson applies in the arrest-warrant context.
The First Circuit has held, as the dissent points out, that “Hudson applies with equal force in the context of an arrest warrant.” United States v. Pelletier,
The other cases the dissent identifies are not even arguably in conflict with our decision. See Dissent at 52 (citing United States v. Smith,
Similarly, Ankeny’s holding in no way conflicts with ours. In that case, the defendant moved to suppress evidence seized by officers because, he argued, the officers failed to knock and announce their presence when executing a search warrant.
IV.
Given the differences between search warrants and arrest warrants, the conclusions drawn in Hudson do not resolve this case. Instead, we must independently examine the factors identified in Hudson — causation and the costs and benefits of exclusion — to determine whether application of the exclusionary rule is appropriate. Examining those factors, we conclude that the exclusionary rule is the appropriate remedy for a violation of the knock-and-announce rule committed during execution of an arrest warrant.
A.
We first consider causation. See Hudson,
Law enforcement officers’ failure to knock and announce deprives the arrestee of any opportunity to answer the door and surrender himself at the threshold of his home. When not properly summoned by officers knocking and announcing their identity and purpose, an arrestee might be located anywhere in the home, perhaps in a bedroom or on an upper floor of a multilevel dwelling. As a result of entering unannounced, the officers gain access to more — perhaps a great deal more — of a home’s interior than they would have had they fulfilled their constitutional obligation to knock, announce, and allow the arrestee time to come to the door. As officers move through a house to locate an arres-tee, they are able to view more portions of its interior. If they find the arrestee in a study or bedroom, searching places within his immediate reach and protectively sweeping adjacent areas is likely to be more intrusive and revealing than it would have been had those searches occurred on a front stoop or in a foyer. Officers’ failure to knock and announce, therefore, can cause them to view areas of the home and discover evidence that they would not have otherwise have constitutional authority to see. In such cases, the constitutional violation is the direct cause of law enforcement officers obtaining evidence beyond that which the warrant lawfully authorizes.
Requiring officers to knock and announce when executing an arrest warrant guards the privacy interest in the home in a way that the same requirement cannot do when officers have a warrant to search the home. Unlike officers armed with a search warrant, officers armed solely with an arrest warrant do not have the authority to examine any papers, gather any effects, or search the various nooks and crannies of an arrestee’s home. They are authorized to make only the limited intrusion into the home necessary to locate and seize the arrestee. See Payton,
B.
We next weigh,-in the arrest warrant context, the costs of excluding evidence obtained by violation of the knock-and-announce rule against its benefits in protecting the Fourth Amendment right to privacy in the home and deterring violations of that right. See Hudson,
The costs of applying the exclusionary rule to this kind of constitutional violation in the arrest warrant context are similar to those described in Hudson: The courts will need to expend resources to resolve close claims of knock-and-announce rule violations, officers’ entry might be delayed by knocking, announcing, and waiting for response, and, most importantly, relevant, incriminating evidence will be rendered unavailable at a defendant’s trial. Id. at 595,
Those costs are real, but they are outweighed by a privacy interest and opportunity to deter its violation that is substantially stronger here than the negligible privacy interest and deterrence value in Hudson. As the Court observed in Hudson, “the value of deterrence depends on the strength of the incentive to commit the forbidden act.” Id. at 596,
The facts of this case aptly highlight when and why officers might want to violate the knock-and-announce rule. The officers were executing an arrest warrant that was over two years old, based on offenses committed even earlier. The offi
Officers can conduct limited searches incident to a lawful arrest in the home, as the dissent acknowledges. Dissent at 57-58. But the dissent fails to recognize that the scope and intrusiveness of those searches varies depending on where in the home the arrestee is located. By violating the knock-and-announce rule, officers give themselves a better chance of arresting an individual inside his home, where a search or protective sweep will be more revealing than one conducted on the home’s threshold.
Given the strong incentives officers may have to violate the rule, the deterrence calculus is starkly different here than it was in Hudson. In Hudson, the Court’s balancing analysis was driven, in large part, by its conclusion that the incentives to violate the rule were weak and therefore that deterrence was virtually worthless.
It would make little sense to jettison the exclusionary rule simply because, as the dissent presumes, officers rarely violate the knock-and-announce rule when executing an arrest warrant. If violations are rare, then the actual cost of applying the exclusionary rule will be minimal. The courts will not be flooded with cases claiming failures to observe the rule and very few dangerous criminals will go free because of officers’ missteps. Cf. Dissent at 56. The paucity of cases challenging violations of the knock and announce rule when officers execute an arrest warrant may very well be due to the deterrent effect of past applications of the exclusionary rule. See generally Sabbath,
Here in the arrest-warrant context, unlike in Hudson, there are grounds to conclude that application of the exclusionary rule to knock-and-announce violations would result in appreciable deterrence of constitutional violations. When application of the exclusionary rule provides beneficial deterrence, and that benefit outweighs the costs of the rule, it applies.
C.
The government contends that its agents should not have to wait for an arrestee to take any particular series of steps that might shield his home from the agents’ view. The government is correct insofar as agents need not, for example, make every effort to enable an arrestee to open the door-in a manner that does not expose the interior of his home to view, exit the dwelling, and close the door. But they must give him an opportunity to come to the door. See Banks,
The government also argues that even if Weaver had surrendered himself, in this particular case the agents would nonethe
The only evidence in the record is that agents were not able to observe the drugs until they had entered Weaver’s apartment: An agent executing the warrant testified that “[a]s soon as [he] went in the door, [he] smelled the fresh marijuana,” and that after he entered the apartment and looked to his left he saw the marijuana. The record does not specify how far into the apartment the agent went before he saw the marijuana, how much farther into the apartment he was able to enter as a result of the struggle to subdue Weaver, or whether the marijuana was visible from the doorway. The government has thus failed to create a record that would enable us to conclude that the agents would have made the same observations had they knocked, announced, and arrested Weaver on his threshold. Nor has the government argued that, even if Weaver had surrendered himself at the threshold of his apartment, the drugs would have been observed during a protective sweep of the areas adjacent to where Weaver was arrested.
For all of the foregoing reasons, we conclude that the exclusionary rule is the appropriate remedy for knock-and-announce violations in the execution of arrest warrants at a person’s home. The parties agree that the officers did not satisfy the rule’s dictates here. The district court should have excluded the fruits of that constitutional violation. Consequently, we reverse the district court’s denial of Weaver’s suppression motion and remand for further proceedings.
So ordered.
Notes
. The precedents the Court cited and discussed involved home warrants and searches, not arrest warrants executed at home. 547 U.S. at 590-91, 593, 602,
. The dissent argues that we have mischarac-terized Buie. Dissent at 57. That is not so. • In Buie, the Supreme Court specifically described the kind of sweep officers can make without reasonable suspicion as "quick and limited.”
. Moreover, it does not appear that in either Pelletier or Jones the defendants brought those distinctions to the attention of the court, nor, indeed, did the government in its briefing in Jones rely on either Hudson or Pelletier.
. Several of the other cases and articles the dissent cites, see Dissent at 46 nn. 2-3, 48, merely describe the holding of Hudson. Those cases do not specify, let alone hold, that Hudson prevents application of the exclusionary rule to a knock-and-announce violation in the arrest warrant context. We have not found imprecise descriptions of Hudson in secondary sources or courts' dicta to provide helpful guidance in applying Hudson’s analysis to the current case. Additionally, in two of the state-court cases the dissent invokes, Dissent at 46 n. 3, the courts held that evidentiary exclusion is the appropriate remedy for violations of state knock-and-announce rules. See State v. Cable,
.In Ankeny, the defendant had outstanding arrest warrants, but it appears that officers entered his home pursuant to a search warrant.
. The mere existence of that last cost, always present when the exclusionary rule is applied, is insufficient in and of itself to overcome an appropriate application of the rule. Cf. Leon,
Dissenting Opinion
dissenting:
I am convinced the exclusionary rule does not apply to a violation of the Fourth Amendment knock-and-announce requirement, period. I had thought that was plain from the U.S. Supreme Court’s decision in Hudson v. Michigan,
I. BACKGROUND
The knock-and-announce requirement arises whenever a police officer seeks to enter someone’s residence without permission. See Sabbath v. United States,
The United States inherited the knock- and-announce rule from the English common law. See Hudson,
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and, purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.
18 U.S.C. § 3109 (emphasis added).
In 1995, the Supreme Court clarified in Wilson v. Arkansas that the knock-and-announce requirement is not only a creature of statute and common law, but also a requirement of the U.S. Constitution. See
Nevertheless, this Court had already answered the question. Long before Wilson, we determined that the knock-and-announce requirement was grounded in the Fourth Amendment. See, e.g., McKnight v. United States,
Those days, however, are long gone. “Subsequent case law” from the Supreme Court “rejected [a] reflexive application of the exclusionary rule.” Arizona v. Evans, 514 U.S. 1, 13,
Hudson v. Michigan falls neatly within this line of cases. In Hudson, the Supreme Court finally answered the question it had left unanswered in Wilson: namely, “whether the exclusionary rule is appropriate for violation of the knock-and-announce requirement.” Hudson,
Shortly after Hudson was decided, we had the opportunity to determine its reach. In United States v. Southerland, we assessed whether “Hudson’s holding that the exclusionary rule did not apply to Fourth Amendment knoek-and-annoqnce violations” also applies to statutory knock-and-announce violations under section 3109.
II. ANALYSIS
Weaver contends — and my colleagues agree — that Hudson v. Michigan is limited to search warrants and, because the knock-and-announce violation here occurred during the execution of an arrest warrant, the exclusionary rule is back in play. Yet I find the attempt to distinguish Hudson completely unpersuasive. Hudson’s holding contains no search-warrant limitation and its reasoning applies equally to searches and arrests.
A. HUDSON’S HOLDING
Hudson involved a knock-and-announce violation that occurred during the execution of a search warrant. See
Every case is “limited to its facts,” if by that phrase one means that the court based its judgment on the facts presented to it. But most cases are also decided with reference to some more general normative principle which extends beyond the specific circumstances of the case before the court. Indeed, it is the existence of such broader norms which distinguishes a decision which is principled and rational from one which is ad hoc and arbitrary.
Robinson v. Diamond Hous. Corp.,
Such a distinction would make little sense conceptually. There is but “one uniform knock-and-announce rule.” Souther-land,
Moreover, we do not interpret Hudson on a blank slate. As discussed, in Southerland, we considered whether Hudson overruled two Supreme Court cases — Miller and Sabbath — both of which involved knock-and-announce violations in the arrest context. In Miller and Sabbath, the police officers arrested the defendants in their respective residences without an arrest warrant and without complying with the knock-and-announce requirement. See Sabbath,
B. HUDSON’S REASONING
Even if Hudson did not directly control this case (on its own terms and as interpreted in Southerland), its reasoning applies with equal force to the arrest-warrant context. The Hudson Court deemed the exclusionary rule inapplicable to knock-
i. Attenuation
Weaver spends most of his brief explaining why here, unlike in Hudson, the knock-and-announce violation was the but-for cause of the discovery of the evidence. His argument goes as follows:
• Because the ATF officers violated the knock-and-announce requirement, Weaver did not have an opportunity to surrender himself at the door.
• Because Weaver did not surrender himself at the door, the officers forced their way inside.
• Because they were inside Weaver’s apartment, the officers were able to see the marijuana in plain view.
• Based on their plain-view observations, the officers obtained. a search warrant.
• In executing the search warrant, the officers obtained the evidence ultimately used to convict Weaver.
Stated in reverse, Weaver believes the search warrant was invalid because the plain-view observations were invalid because the entry was invalid because the police did not knock and announce.
Even assuming Weaver’s causation theory is correct, he is wrong to suggest that the absence of but-for causation is the “core” of Hudson. Appellant’s Br. 21. On the contrary, the absence of but-for causation comprised all of two sentences of the Court’s opinion. See Hudson,
Weaver contends, and my colleagues agree, that the knock-and-announce requirement protects another interest: the privacy interest in keeping the police out of one’s home. See Maj. Op. 37-39. The dissent in Hudson made precisely the same argument. See
Of course, the arrest-warrant requirements — that a warrant be issued by a neutral magistrate based on probable cause and that the police have reason to believe the suspect is present at the described locale, Payton v. New York,
ii. Balancing Test
Even if Hudson’s attenuation analysis were limited to search warrants, the Court’s balancing-test analysis is assuredly not. The Hudson Court concluded that the social costs of applying the exclusionary rule to knock-and-announce violations far exceed the deterrence benefits. See
My colleagues claim that applying the exclusionary rule in the arrest-warrant context will not trigger a flood of burdensome litigation because “officers rarely violate the knock-and-announce rule.” Maj. Op. 44. But they miss the point made in Hudson. Whether or not a knock-and-announce violation in fact occurs, every criminal defendant will claim it did because “[t]he cost of entering this lottery would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card.” Hudson, 547 U.S. at 595,
Unlike-the warrant or Miranda requirements, compliance with which is readily determined (either there was or was not a warrant; either the Miranda warning was given, or it was not), what constituted a “reasonable wait time” in a particular case (or, for that matter, how many seconds the police in fact waited), or whether there was “reasonable suspicion” of the sort that would invoke [an] exceptionf to the knock-and-announce requirement], is difficult for the trial court to determine and even more difficult for an appellate court to review.
Id. At bottom, my colleagues argue with, rather than distinguish, the High Court’s analysis in Hudson.
My colleagues’ decision will also endanger law-enforcement officers in the same way that Hudson predicted. The point made in Hudson is not that the exclusionary rule will deter police officers from violating the knock-and-announce requirement but that it will lead to over-deterrence:
Another consequence of the incongruent remedy [of applying the exclusionary rule to knock-and-announce violations] would be police officers’ refraining from timely entry after knocking and announcing. As we have observed, the amount of time they must wait is necessarily uncertain. If the consequences of running afoul of the rule were so massive, officers would be inclined to wait longer than the law requires — producing preventable violence against officers....
My colleagues believe the protective sweep authorized by the Fourth Amendment is more “limited” than it in fact is. Maj. Op. 38. In the course of a residential arrest, officers can “look[] in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched” without any probable cause or reasonable suspicion. United States v. Ford,
According to Weaver, however, the police cannot conduct a protective sweep if the suspect surrenders himself at the door — something he has no opportunity to do when the police violate the knock-and-announce requirement. But see Thomas,
Even if there were a greater need for deterrence in the arrest-warrant context, my colleagues make no attempt to explain why the “massive deterrence” of the exclusionary rule is required, given the availability of potential civil liability and internal police discipline. Hudson,
In sum, the deterrence benefit of applying the exclusionary rule to knock-and-announce violations is not meaningfully greater in the arrest context than in the search context. At most, my colleagues have demonstrated that the deterrence benefit of suppression could be somewhat higher in the arrest-warrant context. This does not go far enough. The 1960s are over and we are no longer in the “heydays” of the exclusionary rule. Id. at 597,
For the foregoing reasons, Hudson v. Michigan governs this case. I would affirm the district court’s denial of Weaver’s motion to suppress and, accordingly, I respectfully dissent.
. See Hudson,
. See United States v. Southerland,
. See, e.g., United States v. Pelletier,
. See, e.g. James J. Tomkovicz, Hudson v. Michigan and the Future of Fourth Amendment Exclusion. 93 Iowa L.Rev. 1819, 1839— 41 & n. 111 (2008) (explaining why Hudson cannot be limited to search warrants); 1 Wayne R. Lafave, Search & Seizure: A Treatise on the Fourth Amendment § 1.6(h) & n. 165 (5th ed.2014) (“Whatever one might think of Hudson’s fruit-of-the-poisonous-tree holding, the majority's ... alternate deterrence/costs holding ... is open to broader application____ Applying only a fruits analysis, it would seem that notwithstanding Hudson there would be instances in which items not named in the warrant would be deemed the fruit of a premature entry or an entry without notice because absent that violation the evidence would not have been discovered. But ... it is to be doubted that it could likewise be said that there is a greater need for deterrence of those knock-and-announce violations that serendipitously produce such evidence.” (citation and some footnotes omitted)); 2 Drug Abuse & the Law Sourcebook § 9:14 (2014) (“The [Hudson ] Court's ... balancing [of] the deterrence benefit against the social cost of exclusion!] is likely to lead to the same result regardless of whether the entry is to serve a search warrant or an arrest warrant.”); Mark A. Summers, The Constable Blunders but Isn’t Punished: Does Hudson v. Michigan’s Abolition of the Exclusionary Rule Extend Beyond Knock-and-Announce Violations?. 10 Barry L.Rev. 25, 37 (2008) ("Because the[ ] interests [identified in Hudson ] are the same in every knock-and-announce rule case, there are no knock-and-announce violations where applying the exclusionary remedy would be justified.”); John B. Rayburn, Note, What Is "Blowing in the Wind”? Reopening the Exclusionary Rule Debate, 110 W. Va. L.Rev. 793, 823-24 (2008) ("extending] Hudson to the execution of arrest warrants ... seem[s] to be elementary and non-problematic”).
. David A. Moran, The End of the Exclusionary Rule, Among Other Things: The Roberts
. Section 3109 also applies, by reference, to local law-enforcement officers operating in the District of Columbia. See D.C.Code § 23-524(a) (“An officer executing a warrant directing a search of a dwelling house or other building or a vehicle shall execute such warrant in accordance with section 3109 of Title 18, United States Code.”).
. The Southerland Court identified the Hudson "reasons” as follows: that the knock-and-announce requirement does not protect an individual’s interest in shielding “potential evidence from the government's eyes,” Hudson,
. My colleagues emphasize the word “search” in the Hudson Court's statement that "[w]e decide whether violation of the ‘knock-and-announce’ rule requires the suppression of all evidence found in the search." Hudson,
My colleagues also note that the Hudson Court "relied on ... precedents concerning search warrants.” Maj. Op. 36. That is unsurprising, as the “[clases acknowledging a need to knock and announce typically involve the execution of search warrants.” Tomko-vicz, supra, at 1837 n. 92 (collecting cases). In any event, the Hudson Court did not rely exclusively on such precedents. Its attenuation analysis, for example, was primarily grounded in New York v. Harris,
. Before Hudson, the Seventh Circuit had likewise concluded that the exclusionary rule does not apply to knock-and-announce violations, see United States v. Langford,
. At times, my colleagues appear to agree with Weaver that Hudson was primarily about the absence of but-for causation. See Maj. Op. 30-31, 34. They emphasize Justice Kennedy's concurrence, in which he said "the failure to wait at the door cannot properly be described as having caused the discovery of evidence." Hudson,
. My colleagues suggest that the Hudson Court limited its attenuation analysis to the search-warrant context in noting that “the knock-and-announce rule has never protected ... one's interest in preventing the government from seeing or taking evidence described in a warrant.”
Hudson’s holding [cannot be confined] to "evidence described in a warrant”.... The purposes of the knock-and-announce rule identified by the Court ... did not include shielding undescribed items from the authorities. Surely, this was no oversight and is more telling than the limiting language used to describe what the rule does not safeguard. The explanation for the Court's reference to "evidence described in a warrant” may well be that the evidence in Hudson was of that variety. In any event, it is inconceivable that the majority would have ordered suppression of the gun if the officers had possessed a warrant only for contraband narcotics and had seized the firearm in 'plain view' during a lawful search. And the cost-benefit balance struck in Hudson would be no different for evidence that had not been specified in a search warrant.
Tomkovicz, supra, at 1840 & n. 105 (citation and some' footnotes omitted).
. Elsewhere, my colleagues claim “[t]he. facts of this case” demonstrate that officers will strategically violate the knock-and-announce requirement to broaden their search authority. Maj. Op. 43. Even assuming a single anecdote can ever be evidence of a larger trend, Weaver has not alleged at any stage of this litigation that the ATF officers failed to announce their purpose (“We have a warrant”) in order to gain entry to his apartment. In fact, the officers knocked, announced their authority (“Police”) and waited before attempting to enter — actions that make little sense if their purpose was to catch Weaver by surprise.