Supreme Court justices sparred Thursday over police searches in a case that could signal a change in direction for the court after the arrival of two new conservative members.
The court has been generally cohesive and congenial under new Chief Justice John Roberts and in the three and a half months since Samuel Alito became the new junior justice. Earlier this week, for example, the justices ruled in four cases and were 9-0 in each.
They appeared fractured, however, as they debated for the second time whether police can rush into a home without knocking and seize evidence for use at a trial.
The case may have a different outcome without retired Justice Sandra Day O’Connor. She seemed ready, when the case was first argued in January, to rule in favor of a Detroit man whose house was searched in 1998.
Alito was confirmed to replace O’Connor before the case was resolved. The new argument was scheduled apparently to give Alito a chance to break a tie vote.
Alito, a former appeals court judge and government lawyer, seemed more sympathetic to police. He asked tough questions of the lawyer for Booker Hudson Jr., who was convicted of cocaine possession based on evidence found in the search. Alito had no questions for government lawyers.
Knock before entering
The case tests previous Supreme Court rulings that police armed with warrants generally must knock and announce themselves or they run afoul of the Constitution’s Fourth Amendment ban on unreasonable searches. The court has said that police can enter after giving people 15 seconds to 20 seconds to get to the door.
In this case, officers called out their presence at Hudson’s door then went inside three seconds to five seconds later.
The ruling will be announced next month, and liberal justices declared that the stakes are high.
Justice Stephen Breyer said if the court rules against Hudson “we’d let a computer virus loose in the Fourth Amendment. ... It strikes me as risky and unprecedented.”
Justice David H. Souter said that the court has said “there is enough respect for a person’s home. ... The police should not barge in like an invading army.”
On the other side, Roberts and Justice Antonin Scalia were sharply critical of Hudson’s claim that the evidence was connected to the improper search and could not be used against him.
Alito also focused on whether there was a connection between the failure to knock and wait, and the finding of evidence.
Scalia, in response to Alito’s questions, said the drugs would have been found either way. He also said the government acknowledged the mistake in the search and has a good argument that “the punishment for it should not be to let the criminal go.”
Another justice who could be crucial to the outcome is Justice Anthony M. Kennedy, a moderate swing voter. During the January argument, Kennedy called the issue “troublesome,” but seemed most supportive of police. He also appeared conflicted Thursday.
During the January argument, O’Connor worried aloud that police officers around the country may start bursting into homes to execute search warrants. She asked: “Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?”
The case is Hudson v. Michigan, 04-1360.