transcript

Speaker 1:
[00:00] I don't know about you, but I like keeping my money where I can see it. Unfortunately, traditional big wireless carriers also seem to like keeping my money too. After years of overpaying for wireless, I'm fed up with crazy high wireless bills, bogus fees and quote unquote free perks that actually cost more in the long run. Mint Mobile, on the other hand, only costs $15 a month, significantly less than all the major carriers. So stop overpaying for wireless just because that's how you've always done it. Mint Mobile is here to rescue you with premium wireless plans starting at $15 a month. All the plans come with high-speed data and unlimited talk and text delivered on the nation's largest 5G network. You can bring your own phone and your old number, activate with eSIM in minutes, and start saving immediately. No long-term contracts, no hassle. If any of my friends are switching, if I'm switching carriers, there's only one option I'm recommending. There's only one option I'm considering, and it's Mint Mobile. So if you like your money, Mint Mobile is for you. Shop plans at mintmobile.com/five-four. That's mintmobile.com/five-four, and that's five-four all spelled out. There is an upfront payment of $45 for a three-month, five-gigabyte plan required, the equivalent to $15 a month. New customer offer for first three months only, then full price plan options available, taxes and fees extra. See Mint Mobile for details. We'll hear argument in Hudson vs.

Speaker 2:
[01:28] Michigan.

Speaker 3:
[01:31] Hey everyone, this is Leon from Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Hudson v. Michigan, a 2006 case about the Fourth Amendment and the police practice of knock and announce. You're probably familiar with knock and announce from film and TV.

Speaker 2:
[01:51] Police, we got a search warrant. LAPD, open up.

Speaker 1:
[01:53] State police search warrant!

Speaker 4:
[01:55] State police open the door!

Speaker 2:
[01:58] Police search warrant! Coming. Hold your horses.

Speaker 3:
[02:03] What's become a cliché in police procedurals is a key part of the Fourth Amendment, which protects against unreasonable searches and seizures. In the case of Booker Hudson, officers came to his home with a warrant to search for drugs and firearms. After shouting, police search warrant, the officers waited only a few seconds before entering Hudson's home and finding drugs and a loaded gun. During his trial, Hudson argued that officers violated his Fourth Amendment rights by not waiting a reasonable amount of time between announcing and entering. And the courts agreed that the evidence obtained during the search of Hudson's home was used to convict him anyway. Hudson appealed his conviction, arguing that the evidence seized by police during a search that violated the Constitution should have been thrown out under what's known as the exclusionary rule. The Supreme Court ruled against Hudson. This is five-four, the podcast about how much the Supreme Court sucks.

Speaker 4:
[02:58] Welcome to five-four, where we dissect and analyze the Supreme Court cases that have caused our nation to fall apart like Kristi Noem's marriage. I'm Peter. I'm here with Michael.

Speaker 1:
[03:10] She can't help it that her husband has those big old titties.

Speaker 4:
[03:14] And Rhiannon.

Speaker 2:
[03:15] Is it a crime now to have big naturals, to fantasize about having big naturals, to put two massive balloons under your shirt, and to photograph yourself with a kissy face? Is that a crime?

Speaker 1:
[03:27] Not where I'm from.

Speaker 4:
[03:28] I thought it wasn't, but maybe I was wrong. America is changing. Yeah, Kristi Noem's husband, apparently he is reported to enjoy a little bit of cross dressing, where he bimbifies himself, where he dresses up and acts like a bimbo.

Speaker 2:
[03:50] Yeah, he imagines himself to be a beautiful, sexy woman.

Speaker 1:
[03:54] With huge knockers. Massive, massive.

Speaker 4:
[04:00] I'm reading now from something our producers sent us. The Daily Mail claimed that Brian, quote, confessed his lust for huge, huge, ridiculous boobs.

Speaker 2:
[04:13] Who among us? Come on, guys.

Speaker 4:
[04:16] Lock me up if it's a crime, folks.

Speaker 2:
[04:18] Aren't these people pro Second Amendment? You don't like a woman carrying around two bazookas? Come on. This is a scandal.

Speaker 4:
[04:30] When we were talking about this earlier, I said, I can't wait for his announcement that he's like undergoing therapy or whatever.

Speaker 2:
[04:38] Right, right. Getting the help he needs.

Speaker 4:
[04:40] Yeah, and we decided it would be like cognitive behavioral therapy. Where did they train him to like little boobs? Look at these eight cups and jerk off.

Speaker 2:
[04:52] Look at olive oil and say, she's hot, she's sexy, she's beautiful.

Speaker 4:
[05:00] Here are some respectable but not too large boobs. Now jerk it. All the best to the Gnome family.

Speaker 2:
[05:13] You're in our thoughts and prayers.

Speaker 4:
[05:15] Yeah. Presumably, both of them are unemployed and now the family's falling apart. I'm sure it's all uphill from here. Oh boy. Today's case folks, Hudson v. Michigan. This is a case from 2006 about the Fourth Amendment. Specifically, it's about the knock and announce rule, which says that police who are executing a search warrant must knock and announce their presence before entering the home. This is old school 5-4 for we inevitably start jumping into this opinion season which has started to get bad. In this case, police admitted that they violated the knock and announce rule by entering a home without announcing their presence. They admit that. The only question is whether the evidence they obtained after violating the rule should be excluded from consideration in the defendant's criminal trial. The Supreme Court in a 5-4 decision said no.

Speaker 2:
[06:24] Yeah. There's not a lot to the facts here. It's not super complicated. Like Peter said, the police admit they broke a rule that is supposedly required for the Fourth Amendment. The Supreme Court just says, well, there aren't any consequences for that bad behavior. Police had a warrant to search the home of Booker Hudson on the suspicion that he had illegal drugs and guns inside his house. So yes, they have a warrant, but police are still required to, in most cases, present a warrant to you or at least try. There's a 1995 Supreme Court case that we'll talk about in just a second, that ruled that police are required to abide by what's known as the knock and announce rule. Basically, clearly announcing their presence before entering a home, right? Knock, knock, knock, police, this is like a classic thing, broadly understood, known to be what police do when they show up to a house. And so just getting into the knock and announce rule a little bit, they need to knock, they need to clearly announce, and it is generally understood they need to wait some amount of time before they just bust down a door. Okay, there's a whole other side conversation about whether or not that part, about actually waiting after knocking and announcing, is a respected part of the rule broadly. But at the time, this is what is considered to be the requirement of the knock and announce rule.

Speaker 1:
[07:55] Yeah, the difference between theory and practice here is really large. In theory, you're supposed to knock and announce and wait, but in practice, it doesn't look anything like that.

Speaker 2:
[08:09] Just think about how police operate in reality. Yes, there's a knock and announce rule. Are police actually abiding by the knock and announce rule, knocking and announcing themselves clearly and politely all the time? I think not. Are they waiting any amount of time after they knock and announce, even if they do? Probably not. We know how this stuff works in the real world, but in this case, what you have is a rule that was established by the Supreme Court about how police are supposed to act when they get to somebody's house, and there isn't conflict that the police broke that rule, but now it's like, what are the consequences of that? And we should clarify, too, the amount of time that police are supposed to wait after knocking and announcing their presence. That isn't even a set amount of time baked into the rule. This is just a reasonableness determination that the rule from the Supreme Court is the police are supposed to knock, they're supposed to announce themselves, and then they're supposed to wait an amount of time up to them, reasonable to them, before they enter. So what happened here in Hudson's case, the police knock, but then they only waited three to five seconds before busting into Booker Hudson's house. Inside the house, they do find those drugs and guns that they had the warrant for. Booker Hudson is charged. But when he gets to court, he said, wait, well, these guys, these police violated my Fourth Amendment right in obtaining this evidence, so they shouldn't be able to use it. The fruit of their illegal search, the legal entry to my house shouldn't be admitted against me, can't be used against me. The trial judge in Booker Hudson's case actually agreed with him. He's like, yeah, the cops violated your Fourth Amendment right. This evidence can't be used against you. This likely would have led to the dismissal of this criminal case. But state of Michigan, of course, appeals that ruling, and that's how we get all the way to the Supreme Court.

Speaker 4:
[10:11] So let's talk about the law here a bit. The Fourth Amendment, of course, says that you are protected against unreasonable searches and seizures. Again, in 1995, the Supreme Court held that this includes the knock and announce rule, meaning that generally speaking, police have to knock and announce their presence before entering a home, or else they are violating the Constitution.

Speaker 1:
[10:30] Right. It's not reasonable.

Speaker 4:
[10:32] Right. That's not something the Supreme Court made up. It has a long history in the common law. The Supreme Court was basically just saying, yeah, this is part of the Fourth Amendment. So usually, if cops violate the Fourth Amendment, they cannot use any of the evidence that they illegally obtained against you in court. It's called the exclusionary rule. The evidence is excluded. So if they illegally search your house without a warrant and find drugs, they can't use those drugs as evidence. Right. Makes sense. So the question is whether this logic applies to violations of the knock and announce rule. Remember, the cops here admit that they violated the rule, right? The only question is whether they can use the evidence that they obtained regardless. And Scalia writes this opinion, says yes. Yes, they can use it. His primary argument is that the illegal search was not because of the evidence being obtained. He says, quote, whether that preliminary misstep, meaning not knocking and announcing, had occurred or not, the police would have executed the warrant they had obtained and would have discovered the gun and drugs inside the house. So he's saying, in other words, even if the police hadn't violated the knock and announce rule, the result would have been the same. They would have obtained the evidence. So there's no need to exclude the evidence. I'm not sure I understand this, but to be honest, I don't think this makes a ton of sense. He's just saying, imagine a world where they didn't violate the Constitution.

Speaker 1:
[12:13] Yeah. Right.

Speaker 4:
[12:14] Right. But they did. Imagine that police conduct an illegal search without a warrant. They needed a warrant, but they do it without a warrant, and they get a bunch of evidence. You could say, well, yes, this was illegally obtained, but they could have obtained a warrant, and the result would be the same. So no need to exclude the evidence, right? Like, sure, they didn't obtain a warrant, but they could have, so same difference. That can't be it, right?

Speaker 1:
[12:43] That can't be the rule.

Speaker 2:
[12:44] Yeah, and this is like the hypothetical flip of every Fourth Amendment violation situation, circumstance, right? A Fourth Amendment violation occurs basically when police illegally obtain evidence. That's a violation of the Fourth Amendment. And so the imaginary world where the police didn't do anything illegal to get the evidence is a world in which the Fourth Amendment was not violated and there are no consequences for the violation, right? Like, it's every Fourth Amendment violation case is the cops acting illegally, and that's the point. That's what's at issue.

Speaker 1:
[13:30] Prior has a dissent, which we'll get into later, but it's just, it's very funny because it's longer than the majority, and it's longer because he just doesn't understand this. You can just see in the writing, he's just like, but I, but they did. They did. There's so many paragraphs where he's like, but they did violate the Constitution. I don't understand what you're talking about. Like, they did it.

Speaker 4:
[13:53] Like, there's a good law review article by David Fract that calls this the parallel universe exception to the Fourth Amendment. You imagine a parallel universe where the cops did follow the Constitution and try to figure out whether the result would have been the same, right?

Speaker 1:
[14:12] Yeah.

Speaker 4:
[14:12] Fract says, quote, Police may violate the Constitution with impunity without fear of having evidence suppressed because they can rely on their hypothetical doppelgangers in the parallel universe to behave themselves. Yeah, exactly.

Speaker 1:
[14:24] Yeah.

Speaker 4:
[14:25] Yes. Great framing.

Speaker 1:
[14:27] Yeah.

Speaker 4:
[14:27] In light of this whole parallel universe concept, think back to Scalia's basic argument here. Let's like steel man Scalia's argument, right? Scalia is saying, the knock and announce thing doesn't really matter here because, okay, they didn't knock and announce, but even if they did, they would have still gotten in there and they would have gotten the evidence, right? So like, what's the difference? And you might say, well, that is different than a situation where they didn't have a warrant. Because in a situation where they didn't have a warrant, they couldn't enter at all legally, right? The problem with that is that once you start conjuring up these hypothetical parallel universes, right? You can always conjure up one where they did obey the Constitution, right? So you could say, hey, yeah, they went in without a warrant, but they could have gotten a warrant, right? They could have gone to a judge and said, hey, we have PC.

Speaker 1:
[15:30] They had enough facts to justify a warrant, so they could have just gotten one.

Speaker 4:
[15:35] So there are a ton of situations where you could just say, well, look, you could imagine that we could have done this legally. Everything was there for us to do it legally. We just did it, right? Once you start making that argument, then you're in the full parallel universe zone, right? Now you're saying, there's an alternate reality where we abided by the Constitution. And I think that's just way, way, way too fucking slippery. It just doesn't really make sense as a framework. It's just saying, well, I could have. I could have, it's almost like you're, I was speeding on an empty road, you know?

Speaker 2:
[16:10] It's so convenient that every parallel universe is one where the benefit of violating the Constitution is so specific and so important and something that we really, as a society, really want to make sure police are just always able to do. But the harm to this specific person in every parallel universe that the Supreme Court is coming up with, the harm doesn't ever reach society, which is actually what the Constitution is for, protecting a people, protecting society at large. What you get in these parallel universes is just one bad guy, a criminal defendant who is guilty of crime, who has broken laws in this parallel universe. The police have to do everything they can to get the bad guy, and it's totally like no harm, no foul.

Speaker 1:
[17:00] One way the exclusionary rule serves to protect society at large, is by deterring unconstitutional police conduct, right? Deterrence that gets much weaker and less effective if the Supreme Court is constantly poking holes in the exclusionary rule and creating situations where it doesn't apply.

Speaker 4:
[17:20] I think what's really happening here at the end of the day is that Scalia is just like, well, who gives a shit about the knock and announce rule, right? He's trying to say this doesn't matter, but he doesn't want to overturn the case that said knock and announce is part of the Fourth Amendment from what's basically 10 years prior. So he's just like, you can imagine a world where they obeyed the Constitution and we're fine. Another thing Scalia does here in several contexts is he discusses the cost of excluding the evidence of crimes where he's sort of like, look, if you exclude too much evidence, then criminals are going to be getting away with a lot of crime, right?

Speaker 2:
[17:57] A classic conservative argument here. Classic.

Speaker 4:
[17:59] Right.

Speaker 2:
[18:00] We do this constantly.

Speaker 4:
[18:01] Pure policy making, right? Just a roundabout way of rewriting the Constitution. It's like, yeah, you probably would catch more criminals if no one had any rights, right? If like, if Big Brother could just watch what you do all day and be like, jaywalking, boom, got you. Then you'd catch more people committing crimes. That I don't think that's arguable. Like his prior point, it's just besides the point. The point is that the police violated the Constitution, right? So if you're like, oh no, the evidence is excluded. That means the criminal might get away. It's like, yay, better not violate the Constitution when you're executing search warrants, right?

Speaker 2:
[18:41] The cost of excluding evidence of crimes is the cost contemplated by the Constitution. It's a function of the Constitution existing.

Speaker 4:
[18:49] Right. Do you think that the founding fathers didn't think about that element?

Speaker 2:
[18:53] Right. That's, in fact, the point, right? Is that the police can't prosecute you, the state cannot prosecute you, and oh well, because they violated your constitutional rights.

Speaker 4:
[19:06] The right to a jury trial probably prevents a bunch of people from landing in prison.

Speaker 1:
[19:12] Requiring unanimity from the jury, requiring proof beyond a reasonable doubt. All these things make it harder to prosecute criminals. But guess what? The Constitution requires it. That's the thing.

Speaker 4:
[19:24] He's like, I don't know if James Madison thought of this, but there will be more criminals if we have to obey these requirements. Scalia goes on to say that we don't need the exclusionary rule as a deterrent because you can always just sue for damages. You can just sue for money if the police violate the rule, which as the dissent points out, is generally just not true because of civil immunities for police. You'll almost never be able to successfully sue for damages. And even if you could, it doesn't really make sense as a remedy here. The point of damage is to compensate you for your loss. You crash into my car, maybe I sue you for the value of my car, and now I'm good. I've been made whole. I buy another car and I'm back to where I was. If police illegally obtain evidence, it's not like, oh, I'll just sue for $15,000. I'm in fucking prison now. It just doesn't make sense as a remedy. And there's one last item here I want to touch on, which is that Scalia says that over the past several decades, from like the mid-century up through 2006, when the case is happening, police have improved their practices, and now, quote, take the constitutional rights of citizens seriously. All right, here's the thing. You have to separate those things out, because one of them is probably true. Police improved their practices, probably true. Research shows, probably true. And if you're thinking, but police are still terrible now, yeah. They were worse. They were worse in the 70s.

Speaker 2:
[21:04] Like maybe there are policies now where there didn't used to be. That is an improvement.

Speaker 4:
[21:10] But the other half of that statement is that police take the constitutional rights of citizens seriously, which is just such a bizarre thing to put in your opinion. It's just like, first of all, you're just saying this? Like, what does it even mean? Right? What does it even mean? I don't get it.

Speaker 2:
[21:23] It's a vibe you have. Yeah.

Speaker 4:
[21:25] Yeah. It's just a vibe he has. He's just like, police are cool now. Police are nice now. And to support this point, he quotes a book by a dude named Sam Walker saying that since the mid-century, there have been, quote, wide-ranging reforms in the education, training, and supervision of police officers. The argument being that we don't need to rely on the exclusionary rule to deter police misconduct anymore because the police have improved so much, right? So we can be less reliant on this rule. This prompted the author himself, Sam Walker, to publish a response in the LA Times where he said Scalia is misunderstanding the book. The point was that the Supreme Court decisions during the Warren Court era in the mid-century had forced the hands of the police.

Speaker 2:
[22:18] Yeah.

Speaker 4:
[22:19] They had forced police to reform their policies. So Scalia is getting it exactly backwards. He's saying, well, we don't need these legal rules anymore because police have reformed their policies. But the reality is that the police only reformed their policies because of the legal rules.

Speaker 2:
[22:34] Exactly. It's so classic 5-4. Peter, like you said at the beginning, because it's layers and layers of just Scalia bullshit and classic conservative bullshit. You're talking in circles. You're making things up. You're not talking about the real world. And you're saying there's a hypothetical world that exists where everything is okay. And so that makes this okay. There's a concurrence in the case that's written by Anthony Kennedy, lauded as a libertarian. And we'll get to that in a minute. But I hate these little bitches so much that I think I might usually just be like, here's what the concurrence said. It's dumb. Let's move on. Let's get to the discussion part. But I think this is worth spending some time on because Anthony Kennedy runs cover for this bad, bad, bad, bad majority opinion and it is quintessential lawyer brain doing the quintessential lawyer brain thing, where he comes up with a bunch of fake reassurances for why this decision is not a bad thing. He joins the majority here and is telling us throughout with all these classic conservative justice techniques, right? First, there is a reference to quote unquote ancient principles. Anthony Kennedy says knock and announce is an ancient principle, which, okay.

Speaker 1:
[23:58] Days of Rome. Right, yeah.

Speaker 4:
[24:02] What are you talking about?

Speaker 2:
[24:03] Right, right. It's like, okay. And he says, quote, the court's decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law's concern. How else should it be interpreted?

Speaker 4:
[24:18] Yeah.

Speaker 2:
[24:18] What else does it suggest? What are you talking? It's an ancient principle.

Speaker 4:
[24:22] I feel like the fact that he needs to step in and say this just sort of like highlights the fact that it does in fact suggest that.

Speaker 2:
[24:30] A thousand percent.

Speaker 4:
[24:31] Like if it didn't suggest that the knock and announce rule was trivial, then why would you feel the need to say it out loud? That's all. That's all I'm saying.

Speaker 2:
[24:38] Exactly. Oh, and by the way, this concurrence is like two, three pages, right? And he's pulling out all these techniques. Next, the use of lofty language about the importance of a right that you Supreme Court justices are taking away, but saying that you aren't taking away. So he's talking about like privacy and security in the home and how that's understood as an important principle in the Constitution. He says, quote, 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. Okay. Like it's so like, it's like saccharine. It's like, I don't know. It's, it's, he's on Mars with, with how lofty this language is. All right. Next technique. Classic conservative. Don't worry. The system has a ton of fail stops, right? He says our system, quote, has developed procedures for training police officers and imposing discipline for failures to act competently and lawfully.

Speaker 1:
[25:50] The cops are going to handle any misbehavior themselves, folks. Don't worry.

Speaker 4:
[25:55] Don't worry.

Speaker 2:
[25:57] The cops are good and better now. And he says if those failures happen, just like the majority says, there's 1983, section 1983, those civil rights laws that you can sue under. Don't worry about it. Never mind, of course, qualified immunity. Never mind how difficult it is to succeed on a 1983 claim, right? Next conservative technique you see in these very short passages. Precedent doesn't let us come down any differently.

Speaker 4:
[26:26] Yeah, our hands are tied.

Speaker 2:
[26:27] Our hands are tied. We have to do this. Precedent says that there needs to be a causal link between the Fourth Amendment violation and the evidence that was obtained.

Speaker 4:
[26:37] Not true, by the way, but...

Speaker 2:
[26:38] Right. Yeah, it's a misstatement of precedent and it's a misstatement of what happened in this case because there is a causal link. They violated the Fourth Amendment and they found guns and drugs in the house.

Speaker 4:
[26:50] Well, yeah, but you had parallel universe exception, right? This is the thing is like if you do this whole... This is like what Scalia is doing and what he's embracing here, where he's like, well, the illegal aspect wasn't the cause of finding the evidence, but it's like... But then you get into this weird abstract parallel universe that doesn't make any sense. Whereas like there's another rule just sitting right there, which is like, if you violate the constitution, you don't get to use the evidence. Doesn't that feel simpler? Doesn't that feel like a cleaner rule?

Speaker 2:
[27:22] Yeah, instead of loop, deluge and acrobatics. And then last thing, last conservative technique. This isn't a big problem. If it was a big problem, we would do something about it. He says, quote, today's decision does not address any demonstrated pattern of knock-and-announce violations. If a widespread pattern of violations were shown, and particularly if those violations were committed against persons who lacked the means or the voice to mount an effective protest, there would be reason for grave concern. Well, what the helliana do you think is going to happen now? If you didn't think violating the knock-and-announce rule was a widespread problem until this point, what about now that y'all ruled this way?

Speaker 4:
[28:06] Look, we're going to open these floodgates, and if the water pours in, then maybe we'll do something about it.

Speaker 1:
[28:13] Yes.

Speaker 2:
[28:13] It's crazy. It's so crazy. The whole time is like, yeah, obviously he's looking at the majority opinion and thinking, hmm, people are going to have some problems with this. And he's just saying, dear, dear, don't worry.

Speaker 1:
[28:26] Yeah, it'll be okay. It'll be okay.

Speaker 2:
[28:29] Yeah.

Speaker 4:
[28:29] This is great because both Kennedy and Scalia have a little bit of like libertarian cred. Yeah. And this just goes to show, I feel like with Scalia, he does have a libertarian streak on some of this stuff, including in the Fourth Amendment context, but sometimes he gets very scared of criminals.

Speaker 2:
[28:50] Yeah.

Speaker 4:
[28:51] Like if he has trouble putting himself into the shoes of the defendant, then he's sort of just like, well, this is just protecting criminals. And he sort of says this in the opinion where at some point he says like, you know, there's some concern that the Fourth Amendment, if you interpret it too aggressively, mostly just like redounds to the benefit of criminals rather than ordinary people. And he's sort of like presenting that as like this, you know, this horrifying dilemma that like maybe we should be rethinking things. Because I do think at the end of the day, he's very reactionary and he's just thinking about criminals. Like we need to stop crime. Yeah.

Speaker 1:
[29:28] And it's like Scalia, for example, you know, he joins the majority. He may have even wrote in the majority in Kylo of the United States where it was all about thermal imaging. Because yeah, he can put himself in the shoes of someone who maybe the cops are using thermal imaging to look into your house because maybe they're a little freer with their new technology that lets them peer through walls than they are with knocking down doors, right? It feels like a variation on the good boys, bad boys theme, right? Where it's like, could this apply to good boys? First, could this, would this only apply to bad boys? Sort of logic, I think.

Speaker 2:
[30:05] Yeah.

Speaker 1:
[30:06] Let me tell you, folks, that is not libertarian.

Speaker 4:
[30:09] I also think, I wonder whether his own opinion of the defendant here is relevant, right? He's sort of like, well, they found guns and drugs. He's a bad boy.

Speaker 1:
[30:18] Yeah, exactly, exactly. That absolutely colors it. And this is not libertarianism. That's not what libertarianism is. That's just being a reactionary who sometimes is like, well, we don't love government overreach, right? Right? Yeah. That's all that is. So I mentioned before, there is a dissent. It's by Breyer, all four liberals join. It's pretty good for the era. Like I said before, it's very funny because there are several times where he's just like, it's literally like he's like, you can imagine him like almost dictating to his clerk being like, but I don't get it. But they did violate the Constitution. And he like explains it. He's like, they wouldn't find the drugs and guns if they weren't in the house. And they wouldn't have been in the house, but for their entry to the house. And their entry to the house was illegal because they didn't knock and announce. He's like, I don't understand. Like, just, my man is fighting here. He's fighting for his life, trying to understand this.

Speaker 4:
[31:22] He's punching the air.

Speaker 1:
[31:23] He does not get it. He does not get it.

Speaker 4:
[31:25] This is like a good faith liberal trying to reason with a bad faith actor, right? And like not understanding that it's bad faith. So he's just like, what are you talking about? This doesn't make sense. Scalia is on the other side of the side, like we're going to stop the criminals. There's like no rash. There's no reasoning to it.

Speaker 1:
[31:49] There's some good stuff in here where he does a good job of going through the case law and explaining why it's misrepresented in the majority and the concurrence. It talks a bit about what's called inevitable discovery, which is an exception to the exclusionary rule that says, if the police inevitably would have discovered this information through an independent means, then it's allowable. An example would be like, cops detain a guy, bring him in, don't read him his Miranda rights, rough him up, punch him in the stomach, slap him in the face, brace him against the wall, threaten him. He's like, okay, yeah, I did it. I killed this person. The body's in this field. They go to the field, the body is there, they collect a bunch of evidence. Well, that evidence would be excluded. The body would be excluded. Unless maybe there's a big volunteer search effort. Maybe they have cadaver dogs with them. Maybe they were scheduled to hit the field the very next day.

Speaker 4:
[32:49] Maybe there's another person who helped him who confesses. Right.

Speaker 2:
[32:53] Right. Yeah.

Speaker 1:
[32:54] Courts would look at this and likely not only could, but likely would say, well, look, this body was going to be found anyway. It was going to be found the next day or the day after. And so, yes, that was a violation, but that violation is not the only reason they found this evidence, and the other reasons are not tainted by this violation. And so, that evidence comes in. And Breyer is like, but that didn't happen here. Because again, they did violate the Constitution entering the House, and that's how they found the evidence. And there was no other way. There's no other group of cops coming, right? Right. Only in the parallel universe, not in the real world. In the real world, there were no other cops coming to search the House who would have behaved correctly, right? It's just, it's a lot of this. It's a lot of this. And a lot of discussing why like deterrence is really important and why this will ruin deterrence and how, you know, they found that when cops aren't subject to the exclusionary rule, they aren't deterred, right? Like there was a period where the exclusionary rule applied it to the federal government, but not the states. And in that period, state cops, you know, went wild. And then the court applied it to the states in a case called Mapfee, Ohio. And all of a sudden, state cops started behaving better. What do you know? When your evidence might get excluded, you do a better job of following the rules.

Speaker 4:
[34:26] Yeah, I will say that it does seem like Breyer, for all of his sort of like liberal naivete, has like a fundamental understanding of the incentives here.

Speaker 1:
[34:37] Right? Yes, yes.

Speaker 4:
[34:38] Where he's just sort of like, well, why would they obey the Constitution if there's no reason not to? Like that doesn't make sense.

Speaker 1:
[34:46] He's like, we did this.

Speaker 4:
[34:47] And Scalia's like, they will.

Speaker 1:
[34:49] Yeah.

Speaker 4:
[34:49] Yeah. How dare you besmirch our noble police officers?

Speaker 1:
[34:56] So, you know, it is, it's good. It is tonally very funny because he just seems so confused. And I enjoyed that solid dissent and a good sort of tour of all the ways the majority is disingenuous at best.

Speaker 3:
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Speaker 4:
[38:11] I feel like this is a return to one of the early themes of five-to-four, where we always talked about rights without remedies. If they say, well, the Fourth Amendment mandates that police have to knock an ounce, but then there's absolutely no punishment or downside when they don't, then you don't actually have a right, right? Like, it's not really part of the Fourth Amendment because without a remedy, there is no right, right? The right is just the government granting you protection, right? But if there's no back end protection, the front end right doesn't actually mean anything. It's just a little thumbs up.

Speaker 1:
[38:51] It's just flowery language.

Speaker 4:
[38:53] Yeah.

Speaker 1:
[38:53] I think we've been getting at this. Maybe we've said it explicitly, but I'm not sure if we have. But the reasoning of the majority is not just an attack on the entire rationale of the exclusionary rule as it relates to no-knock warrants. It's an attack on the entire rationale for the exclusionary rule altogether.

Speaker 4:
[39:13] Yeah.

Speaker 1:
[39:14] It's an attack on the Fourth Amendment. There's no protection at all if the analysis is, well, if the cops did obey the rules, they would have found the evidence. There's no limiting principle to that except what the conservatives feel comfortable with allowing and what they don't. That's the only limiting principle here. But sort of jurisprudentially, logically, just on its face, there's no reason this can't apply to the Fourth Amendment entirely, which is sort of the problem. And what's frustrating is the Fourth Amendment does allow for circumstances where cops might have a reasonable fear of danger in executing a knock and announce entry. A lot of states allow for specific, like, no knock warrants and things like that. Like, the Fourth Amendment jurisprudence is broad and nuanced, and there's a lot of exceptions and a lot of leeway given to cops, probably way too much leeway given to cops as we've talked about a lot. There's just absolutely no need for this, right?

Speaker 4:
[40:24] Right.

Speaker 1:
[40:24] Like, it's just superfluous.

Speaker 4:
[40:27] As you alluded to, you can get a type of warrant that says you don't need to knock and announce. And it has become increasingly easy to get those warrants. All cops have to say is, well, we're looking for drugs and we think that if we knock and announce, that'll give them the opportunity to destroy some of the drugs, right? They're going to flush the coke. And then judges will be like, all right, here's your no-knock warrant, right? It just sort of highlights the absurdity here because the burden on police is like paper thin. It's barely anything. And then Scalia is saying like, hey, don't even worry about it, man.

Speaker 2:
[41:10] Yeah. And it's just like it completely, it's not just like rewriting the Constitution. It's like erasing the Constitution and erasing the reality that we live in because the exclusionary rule was established because of widespread police abuse of citizens, of people, right? That there needed to be a massive deterrent that was put in place, a deterrent mechanism that was put in place so that police stopped violating the Fourth Amendment. And Scalia, the majority here, Kennedy, nobody is contending with the reality that police violate the Fourth Amendment, that there is still widespread abuse and there has to continue to be these deterrent mechanisms to try and stop that abuse, right? To make sure that there's some sort of punishment, there's some sort of cost to violating people's constitutional rights, especially in a context where you can't fucking get damages for your Fourth Amendment rights being violated. Look it up.

Speaker 1:
[42:13] It never happens.

Speaker 2:
[42:14] It never happens, it never happens. And so, talking about no-knock warrants, for example, I think no-knock warrants is like a good little case study about how the mechanisms, the tools, the weapons, really, that cops are given all of the time are rife with potential abuse and are abused all of the time. I mean, you know what, before we even get to no-knock warrants, consider the knock and announce rule. How often do you think that that is actually violated? It's all the fucking time. It's all the fucking time.

Speaker 4:
[42:49] Knock, knock, police, boom.

Speaker 2:
[42:50] Knock, knock, police, enter.

Speaker 3:
[42:51] How many times have you seen it?

Speaker 4:
[42:52] Yeah, right, yeah. I feel like I was talking to you about this, Rhee, cause I was like, I've watched some body cams in my day and I fucking never see them wait.

Speaker 2:
[43:04] Yeah, it's a mere technicality, a little formality. And what you have here is the Supreme Court green lighting. Like, yeah, you're right. It is a formality, it is a little technicality. You don't really have to pay attention to it, right? But let's get into no-knock warrants, for example, right? And again, we live in the real world where we know that the context is all of these weapons that are given to police are going to be abused. People's rights are going to be violated. And shouldn't the Supreme Court in its position be orienting itself to stopping those violations, to doing something, right? To keep up the deterrent mechanisms that can be placed in the way of police abusing people and hurting and harming people on no-knock warrants. Back in 2020, after Breonna Taylor was killed during the execution of a no-knock warrant at her home in Louisville, Kentucky, Radley Balco, who is the author of a book called The Rise of the Warrior Cop, said that there are on average eight to ten cases per year where a completely innocent person is killed in a no-knock warrant raid. Another 20 or 30 cases where someone who, yes, might have some drugs or might be guilty of having the evidence that is suspected is killed. We're talking 40 people a year.

Speaker 4:
[44:26] I think when he said 20 to 30 who have drugs, he's saying, but not guns, right? People who are not armed, not posing a threat.

Speaker 2:
[44:35] Right, right. 40 people a year killed by no-knock warrants.

Speaker 1:
[44:39] Right.

Speaker 2:
[44:39] And Tiskalia's point about the cost of the exclusionary rule. Well, if the exclusionary rule applied in these cases, then a bunch of guilty people would go free, or we wouldn't get the bad guys, right? The Center for Justice Research at Texas Southern University reported that 36% of no-knock search warrants fail to produce any illegal drugs. And 50% of those searches were executed on homes where no guns were found.

Speaker 1:
[45:09] Yeah.

Speaker 2:
[45:10] So we're talking about incredibly dangerous, violating circumstances, weapons that the police can use on people that are not effective in the way conservatives say police have to be, right? Or police have to be protected in doing. It's not even effective.

Speaker 1:
[45:28] Thinking about this and thinking about Scalia and just how off-basis is, what other parts of the warrant requirement and the warrant itself are optional, right? Right. If the warrant says to be served on Monday and you serve it on Tuesday, does that matter? If it says search the garage and the office for drugs, and they search the bedrooms and find drugs or a weapon there, does that matter? If it says apartment A and they go into apartment B, does that matter? Right?

Speaker 2:
[46:09] Which happens a lot. Yeah.

Speaker 1:
[46:10] A lot. Why is any part of this optional, right? I don't care if you had a warrant. If you didn't follow the warrant to the letter, you didn't have a warrant. You didn't have a warrant for what you did, right? You had a warrant for something else that you didn't do, and that's all that matters, right? Like, that's it. That's all that matters.

Speaker 4:
[46:30] That's the thing is I feel like the way that they think about warrants is like a grant of access to a place, right?

Speaker 1:
[46:39] Right.

Speaker 4:
[46:39] Whereas like I would think of it as like a specific set of rules that they need to adhere to.

Speaker 1:
[46:45] Right.

Speaker 4:
[46:46] Right. And so I feel like they're thinking about it in this sort of weird way where it's sort of like, well, this is my key to that person's apartment or house or whatever, right? And yeah, so maybe you fuck up the details a little bit, but who cares, right? Fundamentally, I was allowed access. I think the proper way to look at it is just like a relatively rigid set of rules that you need to adhere to, right? If you want to stay in compliance with the Constitution. But that's just not how they think about it because they're all playing cops and robbers. You know, you think about how like ICE is operating, right? Right now, right? Not just in the warrant context, but in some cases in the warrant context. But they're acting with impunity in part because there's a lot of leeway that they get in these situations, right? If courts were consistently saying, hey, if you violate the Fourth Amendment even a little bit, you're. Like whatever guy you grabbed isn't going to be deported, right? Then maybe they actually have to stop and slow down, get permission from courts, shit like that, like actually follow the letter of the law. But in many respects, conservatives on the court have been sort of building this structure where it's a little bit looser than that, right? You can make some mistakes. Maybe you can make some mistakes on purpose and you're still fine. And I think ICE very much operates under that principle and feels like an extension of the worst impulses of modern police in that respect.

Speaker 1:
[48:29] Yeah.

Speaker 2:
[48:29] And there's no feeling or indication that they will be held accountable for violating people's Fourth Amendment rights, right? It's very much a like ask for forgiveness later. And it'll be even more than forgiveness. It'll be like support and a green light to keep doing it from the Supreme Court, at least, you know?

Speaker 1:
[48:48] Right, right. They fucking murdered two people right on camera in Minneapolis and the only hope for any accountability for that is if there's like a damn president who appoints an attorney general who's not a fucking doormat like our last one was. Right, right. Like, there's just not.

Speaker 4:
[49:06] And if I'm an incoming attorney general in the next democratic administration, I'm doing like, you know, the Trump team is doing psychotic tweets every day. I'm just like posting their pictures, those cops and being like, flee the country, bitch, you better run. Just like a list of non-extradition countries. You know? I think that the Trump administration now is kind of interesting in a way because we talk about these old cases and we talk about like the conservative philosophy about criminality and good boys and bad boys and things like that. And we talk about the absurdity of the layers of immunity that police get, right? The layers of insulation that they get from accountability. Not only can you not really sue them, but their evidence isn't even excluded when they illegally seize it, right? I think the Trump administration is one of the first where you have a ton of people within it who also see the absurdity that we see, right? That this has created a police force, federal and state, that is completely unaccountable, and they are happy about it. They want to weaponize it, right? It's not that they don't agree, right? It's not that they're like, oh, there are other methods of accountability. Someone like Stephen Miller recognizes that there's no accountability at any level. He's like, oh, how can we take advantage of that? How can we take advantage of this permission structure that we've been handed?

Speaker 1:
[50:46] Right. We have been building the fascism machine, and now we control it, and now it's time to deploy it, right? Like that's it.

Speaker 4:
[50:55] Like Anthony Kennedy is like, these are sacred rights, and Stephen Miller is reading this case like, whatever, nerd. Yeah, dude. Thanks for the power. We're going to go abuse it now. You can go die slowly. Which by the way, every time for the past couple of years that we've talked about Anthony Kennedy, I've quietly Googled on my phone, because I was like, wait, is he?

Speaker 1:
[51:21] I know he's still alive because he told Donald Trump he's making the teaching the kids to love America again, just recently.

Speaker 4:
[51:28] That's right. But that was like over a year ago now.

Speaker 1:
[51:30] Oh, that's true. He could have died.

Speaker 4:
[51:31] When you're 89. That's a long year, buddy. But yeah, Anthony Kennedy is still alive somehow, still hanging on, and a big Trump fan. Thank you for teaching the kids to love America again. Finger on the pulse, Anthony. That's definitely what's happening, dude.

Speaker 1:
[51:50] Oh, yeah.

Speaker 4:
[51:50] Stupid.

Speaker 1:
[51:51] Oh, yeah.

Speaker 4:
[51:54] All right. Next week, we technically should be doing a Premium episode, but just today, a hot one dropped. We're going to be doing Charles V. Salazar, the case fresh out of the Supreme Court about conversion therapy. Follow us on social media at 5-4Pod. Subscribe to our Patreon, patreon.com/5-4pod, all spelled out for access to Premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

Speaker 1:
[52:31] Bye.

Speaker 2:
[52:32] Bye, y'all.

Speaker 1:
[52:34] Five to Four is presented by Prologue Projects. This episode was produced by Allison Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.