Thursday, July 13, 2006

Is Suppression of Evidence Still a Remedy for Knock-and-Announce Violations in Federal Court?

Orin Kerr has this very interesting post at his blog, in which he asks the question: "Is the 'Hudson rule' that suppression is not a remedy for knock-and-announce violations applicable in federal court?" He suggests not, on the ground that there is a statutory suppression remedy that provides greater protection that the minimum requirements of the Fourth Amendment.
As you'll recall, the Supreme Court recently held in Hudson v. Michigan that the Fourth Amendment doesn't require suppression of evidence found in a search that follows a knock-and-announce violation. However, Professor Kerr notes that, "It has generally been understood that violations of 18 U.S.C. 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, 357 U.S. 301, 78 S. Ct. 1190 (1958), and Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755 (1968). He suggests 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.
This is an argument that you may want to consider making if you have a case with evidence obtained by federal agents in violation of section 3109. As they say, read the whole thing.


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