Exclusion Not A Remedy for Violations of Knock-and-Announce Statute, 18 U.S.C. § 3109

United States v. Caldwell, No. 05-41763 (5th Cir. May 18, 2007) (Garwood, Smith, DeMoss) (You might also see this case referred to as United States v. Bruno, since he was the first of the two co-defendant-appellees listed in the slip. The court's website refers to the case as United States v. Caldwell, so that's what we'll call it here.)

Let's step into the way-back machine for a trip to July of last year, when the question on everyone's mind was, "Is suppression of evidence still a remedy for knock-and-announce violations in federal court?" The question arose in the wake of the Supreme Court's decision in Hudson v. Michigan, which held that exclusion isn't required for the Fourth Amendment violation. At the time, law professor and Volokh Conspirator Orin Kerr opined that there's still a statutory exclusionary remedy available in federal court for violations 18 U.S.C. § 3109, the federal knock-and-announce statute. Professor Kerr noted that "[i]t has generally been understood that violations of . . . § 3109 can lead to suppression in federal court as a matter of statutory law[,]" based on the Supreme Court's decisions in Miller v. United States and Sabbath v. United States, and suggested that because Hudson dealt only with the Fourth Amendment's reasonableness requirement, it left Miller and Sabbath intact with respect to the availability of a statutory suppression remedy.

Not according to Caldwell. It followed the lead of the First, Ninth, and District of Columbia Circuits, which have held that Hudson's reasoning applies with equal force to statutory knock-and-announce violations. The court also rejected the argument that Miller and Sabbath require suppression as a statutory remedy, holding that neither case "analyze[d] the precise question Hudson squarely addressed: the remedy for a knock-and-announce violation. Rather, both focused on whether a knock-and-announce violation had occurred."

You might want to consider preserving this issue, should it arise in any of your cases. There's no circuit split yet, but it sounds like an issue that may merit Supreme Court review at some point.