Radley Balko has an excellent piece explaining why the no-knock warrant given to the Louisville police for the search that led to the killing of Breonna Taylor did not comply with the standards the Supreme Court has established for no-knock warrants. (One of the many lessons of James Comey’s ratfucking of the 2016 elections is that the “probable cause” requirement for warrants has effectively been read out of the Fourth Amendment. The idea it was probable that Anthony Wiener’s laptop had evidence materially implicating Hillary Clinton in a crime is absurd, but “probable cause” has long since been reinterpreted to mean “pretty much any suspicion whatsover.”) Moreover, police have also been able to get around the requirement by entering nearly simultaneously with warnings when they have an ordinary warrant. He observes that failure to observe the Court’s standards by both judges and the police have been routine.
And there’s the reason for it: because of Sam Alito replacing Sandra Day O’Connor, there is effectively no remedy for illegal no-knock searches:
The answer lies in a Supreme Court ruling subsequent to Richards — Hudson v. Michigan in 2006. In Hudson, the court ruled 5 to 4 that even if the police violate the knock-and-announce rule, the exclusionary rule is not applicable, and the police can still use any incriminating evidence they find inside.
The exclusionary rule is meant to be a deterrent to prevent police from violating the Fourth Amendment. But in his majority opinion, Justice Antonin Scalia argued that the rule was too extreme a remedy in these cases. Instead, Scalia argued that there are other ways to keep cops accountable. He referred to “wide-ranging reforms” in U.S. policing, citing a criminologist who later wrote that Scalia had completely misinterpreted his work.
Scalia also pointed out that police officers who violate the rule can be sued. But police are protected from such lawsuits by the doctrine of qualified immunity, which makes it nearly impossible to collect damages, especially in cases where there’s little established law. In my years covering this issue, I’ve never come across anyone who has ever won a lawsuit against police officers solely for violating the knock-and-announce rule.
As for the “new professionalism,” as of today, not a single police officer in Little Rock has been held accountable for illegal no-knock warrants. One of the judges who signed off on a large portion of those warrants is currently running for higher judicial office. The detective who requested many of those warrants, who was caught lying in one, and for whom there’s evidence that he lied in others, is still in charge of the city’s drug investigations.
Reactionary judges refusing to apply the exclusionary rule while piously asserting the superiority of civil remedies on the one hand while inventing arbitrary rules that immunize police officers for virtually any misconduct on the other is the kind of Catch-22 they love. Such Catch-22s are, as Kim Scheppele has observed, entirely incompatible with the rule of law, but to judges like Scalia and Alito this is a feature not a bug.