Different reading of motives.
I understand your concerns about Scalia's motives. I just don't think they are relevant.
I don't think you understand my argument. I wouldn't want to lose the exclusionary rule, either. I'm arguing that expecting both an announcement and a knock is silly because the knock is redundant and failure to knock in most situations would not result in lack of notice to the occupants so we should quit expecting it. If the expectation were that the police announce and click their heels together three times, would you be upset if Scalia said that failure to heel click would not result in the exclusion of the evidence? I would hope not. I would hope you would think that we shouldn't let a murderer off over a meaningless failure. I would hope you wouldn't be so concerned about motives that you would insist on three heel clicks.
The rule should be, IMO, that the cops must do whatever is appropriate to notify the occupants before barging in when executing warrants that allow barging. In an apartment house, yelling "Police, we have a warrant" at the door would work fine. At a big house in the country, sirens and flashing lights followed by a bullhorned "we have a warrant" would work. Neither involves applying knuckles to door.
Back at EPA I spent several years engaging lawyers on the topic of electronic signatures. They were dug in that they needed a piece of paper with an original signature on it and nothing else would do. They confused the design with the requirement. The requirement is that we have proof of authorization. Signing one's name is the traditional way to accomplish that. A retinal scan stored electronically is at least as good a way. It would be silly to let a murderer off because you had only a retinal scan, not a written signature, as evidence.
You can reasonably argue, I think, that we need to give Scalia hell now lest he be emboldened to do some real damage to the exclusionary rule, but I don't buy the notion that he has thus far done so. (I'm still open to an argument, as opposed to an assertion, that he has.) Otherwise it's hollering before you're hurt. |
