JURIST Guest Columnist Eric M. Freedman of Hofstra University School of Law says that the US Supreme Court's 5-4 ruling in Hudson v. Michigan is a warning that the Fourth Amendment may be on the verge of a judicial trivialization contrary to the interests of democracy…

There is a widely-circulated poster which viewed from a certain angle depicts a young woman with black hair and from another an old woman with white hair.

That is a good metaphor for the Supreme Court’s 5-4 opinion last month in Hudson v. Michigan, the “no-knock” case. As the Court explained, this involved a conceded violation of the centuries-old rule that before making a forcible entry “law enforcement officers must announce their presence and provide residents an opportunity to open the door.”

On one view the issue presented was relatively narrow: whether the defendant was entitled to the remedy of suppression of the evidence seized by the officers.

From that perspective, Hudson‘s rejection of suppression was regrettable but represented just another one in a dreary litany of cases in which the Court’s focus on what Justice Scalia described as the high social costs of “setting the guilty free and the dangerous at large” have led it to forget that the Fourth Amendment rights of everyone can only be vindicated by convicted defendants because, realistically, only they have the standing and incentive to pursue such claims.

On a second view, as Justice Breyer rightly warned for the dissent, the decision could be seen as a broad assault on our centuries-old understanding that the “right of the people to be secure in their persons, houses, papers, and effects” is critical to a vibrant and productive society of free individuals.

Consider John and Cathy Smith of Anytown, Kansas. Neither they nor any of their four children has ever had the slightest contact with the criminal justice system. Indeed, all of them are model citizens.

Their oldest son, John, Jr., is a graduate student at the University of Kansas. He is diligently researching a doctoral thesis demonstrating that today’s militant Islamists have hijacked a noble tradition and misquoted and perverted religious texts to justify atrocities contrary to the genuine teachings of Islam.

The second child, Mary, is also a graduate student at the University of Kansas. She is in the chemistry department and pursuing a set of experiments that she hopes will eventually result in improved fertilizers. As she brainstorms, she trades ideas frequently by mail, telephone, and e-mail with her younger sister Susie, who, while working for the Peace Corps on a rice farm in the Philippines, provides many suggestions for improved formulations.

The youngest Smith child, Bill, is in high school and still living at home with his parents. He hopes to go to business school some day and currently spends most of his spare time on his computer trying to create a secure on-line payment system that will enable people to conduct internet transactions paperlessly, conveniently and privately.

Each of these activities exemplifies the sort of forward-looking thinking that our society should encourage. None of them is criminal or even remotely close to being criminal. But all of them could easily be misconstrued by the authorities. Of course, the suspicions would be unjustified. But unlike Justice Scalia, who will certainly be treated with the utmost deference by any law enforcement agent whom he should happen to encounter, many ordinary people living in the real world find less than complete comfort in the thought that “the innocent have nothing to fear.”

If the Smith children decided that the path of prudence was to avoid the possible need to explain themselves to the government and therefore inhibited their free-wheeling explorations our core values would be at risk.

A country in which the door may be burst down at any time by Redcoats, SS officers, or KGB agents is a country whose potential is stifled because the average person is discouraged from dreaming of how it might become better.

Restrictions on the police are not designed simply to prevent damage to the door or even to forestall violations of what Justice Scalia dismissively described as “the right not to be intruded upon in one’s nightclothes.”

Most fundamentally, a democracy limits law enforcement tactics because, as Justice Brandeis said in Whitney v. California, “the greatest menace to freedom is an inert people” under a government whose laws “discourage thought, hope and imagination” by people like the Smiths.

Fortunately for all of us, in providing the critical fifth vote for the result in Hudson Justice Kennedy made very clear that he saw the case as a narrow one. “Today’s decision,” he wrote in concurrence, “determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression.”

Justice Kennedy squarely and correctly disclaimed the plurality’s monocular focus on the needs of law enforcement. Violations of the knock-and-announce rule are not “trivial or beyond the law’s concern,” because the “requirement protects rights and expectations linked to ancient principles in our constitutional order.”

So indeed it does. But Hudson is a warning knock on the door. If the Court follows Justice Scalia’s path and trivializes the Fourth Amendment as merely “a get-out-of-jail-free card” for criminals every one of us will pay the cost.

Eric M. Freedman is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra Law School
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