Hudson v. Michigan

If we live in a multiverse, are your constitutional rights ever truly violated?? Thank you to our subscribers. 5-4 is presented by Prologue Projects. This episode was produced by Alli Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Huel: Code: FIVEFOUR Link: https://www.huel.com/fivefour Home Chef: homechef.com/FIVEFOUR Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Michael Liroff?

  We'll hear argument in Hudson versus Michigan.

• 0:06Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are talking about Hudson v. Michigan, a 2006 case about the Fourth Amendment and a police practice of knock and announce. You're probably familiar with knock and announce from film and TV.

• 0:25Speaker 02

  Police, we got a search warrant. LAPD, open up. Let police search warrant! Let police open the door!

• 0:33Speaker 02

  Police, search warrant! Coming. Hold your horses.

• 0:37Speaker 01

  What's become a cliche in police procedurals is a key part of the Fourth Amendment, which protects against unreasonable searches and seizures. In the case of Booker Hudson, officers came to his home with a warrant to search for drugs and firearms. After shouting, "Police search warrant," the officers waited only a few seconds before entering Hudson's home and finding drugs and a loaded gun. During his trial, Hudson argued that officers violated his Fourth Amendment rights by not waiting a reasonable amount of time between announcing and entering. And the courts agreed that the evidence obtained during the search of Hudson's home was used to convict him anyway. Hudson appealed his conviction, arguing that the evidence seized by police during a search that violated the Constitution should have been thrown out under what's known as the exclusionary rule. The Supreme Court ruled

• 1:22Speaker 01

  against Hudson. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:33Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have caused our nation to fall apart, like Kristi Noem's marriage. I'm Peter. I'm here with Michael.

• 1:45Michael Liroff?

  She can't help it that her husband has those big, old titties.

• 1:48Peter Shamshiri?

  And Rhiannon.

• 1:50Speaker 04

  Is it a crime now to have big naturals, to fantasize about having big naturals, to put two massive balloons under your shirt, and to photograph yourself with a kissy face? Is that a crime?

• 2:01Peter Shamshiri?

  Not where I'm from. I thought it wasn't, but maybe I was wrong. America's changing.

• 2:08Peter Shamshiri?

  Yeah, Kristi Noem's husband, apparently he is reported to enjoy a little bit of cross dressing where he bimbofies himself, where he dresses up and acts like a bimbo.

• 2:24Speaker 04

  Yeah, he imagines himself to be a beautiful sexy woman.

• 2:29Peter Shamshiri?

  With huge knockers. Massive, massive. I'm reading now from something our producers sent us. The Daily Mail claimed that Brian, quote, "confessed his lust for huge, huge ridiculous boobs."

• 2:48Speaker 04

  Who among us? Come on, guys.

• 2:50Peter Shamshiri?

  Lock me up if it's a crime, folks.

• 2:53Speaker 04

  Aren't these people pro second amendment? You don't like a woman carrying around two bazookas? Come on.

• 3:03Speaker 04

  This is a scandal?

• 3:05Peter Shamshiri?

  When we were talking about this earlier, I said I can't wait for his announcement that he's like undergoing therapy or whatever.

• 3:13Speaker 04

  Right, right. Getting the help he needs.

• 3:15Peter Shamshiri?

  Yeah, and we decided it would be like cognitive behavioral therapy. Where they train him to like little boobs.

• 3:25Peter Shamshiri?

  Look at these A cups and jerk off.

• 3:27Speaker 04

  Look at olive oil.

• 3:32Speaker 04

  And say she's hot, she's sexy, she's beautiful.

• 3:34Peter Shamshiri?

  Here are some respectable but not too large boobs. Now jerk it.

• 3:41Peter Shamshiri?

  Oh, all the best to the Noem family.

• 3:48Speaker 04

  You're in our thoughts and prayers.

• 3:49Peter Shamshiri?

  Yeah, presumably both of them are unemployed and now the family's falling apart.

• 3:57Peter Shamshiri?

  I'm sure it's all uphill from here.

• 4:01Peter Shamshiri?

  Oh, boy. Today's case, folks, Hudson v. Michigan. This is a case from 2006 about the Fourth Amendment. Specifically, it's about the knock and announce rule, which says that police who are executing a search warrant must knock and announce their presence before entering the home. This is old school, five to four, before we

• 4:25Speaker 04

  Yeah, classic.

• 4:26Peter Shamshiri?

  inevitably start jumping into this opinion season, which has started to get bad.

• 4:33Peter Shamshiri?

  So in this case, police admitted that they violated the knock and announce rule by entering a home without announcing their presence. They admit that. The only question is whether the evidence they obtained after violating the rule should be excluded from consideration in the defendant's criminal trial. And the Supreme Court, in a five to four decision, said no.

• 4:59Speaker 04

  Yeah. You know, there's not a lot to the facts here. It's not super complicated. Like Peter said, the police admit they broke a rule that is supposedly required for the Fourth Amendment. And the Supreme Court just says, well, there aren't any consequences for that bad behavior. Police had a warrant to search the home of Booker Hudson on the suspicion that he had illegal drugs and guns inside his house. So, yes, they have a warrant, but police are still required to, in most cases, present a warrant to you, or at least try, right? And there's a 1995 Supreme Court case that we'll talk about in just a second that ruled that police are required to abide by what's known as the knock and announce rule. Basically, like, you know,

• 5:44Speaker 04

  clearly announcing their presence before entering a home, right? Knock, knock, knock, police. This is like a classic thing, like, you know, broadly understood, known to be what police do when they show up to a house. And so just getting into the knock and announce rule a little bit, they need to knock, they need to clearly announce, and it is generally understood they need to wait some amount of time before they just bust down a door. Okay, there's a whole other side conversation about whether or not that part about actually waiting after knocking and announcing is, you know, a respected part of the rule broadly.

• 6:24Speaker 04

  But at the time, this is what is considered to be the requirement of the knock and announce rule.

• 6:30Michael Liroff?

  Yeah, like, the, uh, the difference between theory and practice here is really large, right? Like, in theory, you're supposed to knock and announce and wait, but in practice, it doesn't look anything like that.

• 6:43Speaker 04

  I mean, just think about how police operate in reality. Like, yes, there's a knock and announce rule. Are police actually abiding by the knock and announce rule, knocking and announcing themselves clearly and politely? Hmm, all the time? I think not. Are they waiting any amount of time after they knock and announce, even if they do? Hmm, probably not. Like, we know how this stuff works in the real world, but, you know, in this case, what you have is a rule that was established by the Supreme Court about how police are supposed to act when they get to somebody's house. And there isn't conflict that the police broke that rule, but now it's like, what are the consequences of that? And we should clarify, too, like, the amount of time that police are supposed to wait

• 7:26Speaker 04

  after knocking and announcing their presence, like, that isn't even a set amount of time baked into the rule. This is just a reasonableness determination that, you know, the rule from the Supreme Court is the police are supposed to knock, they're supposed to announce themselves, and then they're supposed to wait an amount of time up to them, reasonable to them, before they enter. So what happened here in Hudson's case, the police knock, but then they only waited three to five seconds before busting into Booker Hudson's house. Inside the house, they do find those drugs and guns that they had the warrant for. Booker Hudson is charged. But when he gets to court, he said, wait, well, these, these guys, these police violated

• 8:10Speaker 04

  my Fourth Amendment right in obtaining this evidence, so they shouldn't be able to use it, you know, the fruit of their illegal search, that legal entry to my house shouldn't be admitted against me, can't be used against me. The trial judge in Booker Hudson's case actually agreed with him. He's like, yeah, the cops violated your Fourth Amendment right. This evidence can't be used against you. This likely would have led to the dismissal of this criminal case. But State of Michigan, of course, appeals that ruling, and that's how we get all the way to the Supreme Court.

• 8:45Peter Shamshiri?

  So let's talk about the law here a bit. The Fourth Amendment, of course, says that you are protected against unreasonable searches and seizures. And again, in 1995, the Supreme Court held that this includes the knock and announce rule, meaning that generally speaking, police have to knock and announce their presence before entering a home, or else they are violating the Constitution.

• 9:05Michael Liroff?

  Right. It's not reasonable.

• 9:06Peter Shamshiri?

  Right. And that's not something the Supreme Court made up. It has a long history in the common law, right? So the Supreme Court was basically just saying, yeah, this is part of the Fourth Amendment. So usually, if cops violate the Fourth Amendment, they cannot use any of the evidence that they illegally obtained against you in court. It's called the exclusionary rule. The evidence is excluded. So if they illegally search your house without a warrant and find drugs, they can't use those drugs as evidence, right? Makes sense. So the question is whether this logic applies to violations of the knock and announce rule. Remember, the cops here admit that they violated the rule, right?

• 9:49Peter Shamshiri?

  The only question is whether they can use the evidence that they obtained regardless. And Scalia writes this opinion, says yes.

• 10:00Peter Shamshiri?

  Yes, they can use it. His primary argument is that the illegal search was not the cause of the evidence being obtained. He says, quote, "Whether that preliminary misstep," meaning not knocking and announcing, "had occurred or not, the police would have executed the warrant they had obtained and would have discovered the gun and drugs inside the house." So he's saying, in other words, even if the police hadn't violated the knock and announce rule, the result would have been the same. They would have obtained the evidence. So there's no need to exclude the evidence. I'm not sure I understand this, to be honest. I don't think this makes a ton of sense. He's just saying, like, imagine a world where

• 10:45Peter Shamshiri?

  they didn't violate the Constitution.

• 10:47Speaker 04

  Yeah.

• 10:48Michael Liroff?

  Right, right.

• 10:49Peter Shamshiri?

  But they did, right? Like, okay, like, imagine that police conduct an illegal search without a warrant. Like, they needed a warrant, but they do it without a warrant, and they get a bunch of evidence. You could say, well, yes, this was illegally obtained, but they could have obtained a warrant, and the result would be the same. So no need to exclude the evidence, right? Like, sure, they didn't obtain a warrant, but they could have. So same difference. That can't be it, right?

• 11:18Speaker 04

  Yeah, and this is like the hypothetical flip of every Fourth Amendment violation.

• 11:25Michael Liroff?

  Right.

• 11:26Peter Shamshiri?

  Yeah.

• 11:27Speaker 04

  Situation, circumstance, right? A Fourth Amendment violation occurs, basically, when police illegally obtain evidence. That's a violation of the Fourth Amendment.

• 11:39Michael Liroff?

  Right.

• 11:39Speaker 04

  And so the imaginary world where the police didn't do anything illegal to get the evidence is a world in which the Fourth Amendment was not violated, and there are no consequences for the violation, right? Like, it's, it's, it's every Fourth Amendment violation case is the cops acting illegally, and that's the point. That's what's at issue.

• 12:05Michael Liroff?

  Pryor has a dissent, which we'll get into later, but it's just, it's very funny because it's longer than the majority, and it's longer because he just doesn't understand this. You can just see in the writing, he's just like, "But I, but they did. They did." Like, there's so many paragraphs where he's like, "But they did violate the Constitution. I don't understand what's, what you're talking about." Like, they did it.

• 12:29Peter Shamshiri?

  There's a good Law Review article by David Fracht that calls this the "parallel universe exception to the Fourth Amendment." You imagine a parallel universe where the cops did follow the Constitution and try to figure out whether the result would have been the same, right?

• 12:46Michael Liroff?

  Yeah.

• 12:47Peter Shamshiri?

  Fracht says, quote, "Police may violate the Constitution with impunity without fear of having evidence suppressed because they can rely on their hypothetical doppelgangers in the parallel universe to behave themselves."

• 12:57Michael Liroff?

  Yeah, exactly. Yeah.

• 13:00Peter Shamshiri?

  Great framing.

• 13:01Michael Liroff?

  Yeah.

• 13:02Peter Shamshiri?

  In light of this whole parallel universe concept, like, think back to Scalia's basic argument here, and let's, like, steel man Scalia's argument, right? Scalia is saying, "The knock-and-announce thing doesn't really matter here because, okay, they didn't knock and announce, but even if they did, they would have still gotten in there and they would have gotten the evidence, right?

• 13:27Michael Liroff?

  Right.

• 13:27Peter Shamshiri?

  So like, what's the difference? And you might say, "Well, that is different than a situation where they didn't have a warrant, because if, in a situation where they didn't have a warrant, they couldn't enter at all legally, right?" The problem with that is that, once you start conjuring up these hypothetical parallel universes, right, you can always conjure up one where they did obey the Constitution, right? So you could say, "Hey, yeah, they went in without a warrant, but they could have gotten a warrant, right? They could have gone to a judge and said, 'Hey, we have PC.'"

• 14:04Michael Liroff?

  They had enough facts-

• 14:05Peter Shamshiri?

  Yeah.

• 14:06Michael Liroff?

  -to justify a warrant, so-

• 14:08Peter Shamshiri?

  Right.

• 14:09Michael Liroff?

  -they could have just gotten one.

• 14:09Peter Shamshiri?

  So there are a ton of situations where you could just say, "Well, look, you could imagine that we could have done this legally. Everything was there for us to do it legally, we just didn't, right?"

• 14:21Michael Liroff?

  Right.

• 14:21Peter Shamshiri?

  And once you start making that argument, then you're in the full parallel universe zone, right? Now you're saying, "There's an alternate reality where we abided by the Constitution." And I think that's just way, way, way too fucking slippery. It just doesn't really make sense as a framework. It's just saying, "Well, I could have." I could have. It's almost like you're, I was speeding on an empty road. You know, who gives a shit?

• 14:44Speaker 04

  Exactly. It's so convenient that every parallel universe is one where the benefit of violating the Constitution is so specific and so important and something that we really, as a society, really want to make sure police are just always able to do. But the harm, right, to this specific person in every parallel universe that the Supreme Court is coming up with, the harm doesn't ever reach society, which is actually what the Constitution is for, protecting a people, protecting society at large, right? And what you get in these parallel universes is just one bad guy, a criminal defendant, who is guilty of crime, who has broken laws in this parallel universe. The police have

• 15:28Speaker 04

  to do everything they can to get the bad guy, and it's totally like no harm, no foul.

• 15:34Michael Liroff?

  Right. And one way the exclusionary rule serves to protect society writ large is by deterring unconstitutional police conduct.

• 15:43Speaker 04

  Exactly.

• 15:44Michael Liroff?

  Right? Deterring that gets much weaker and less effective. The Supreme Court is constantly poking holes in the exclusionary rule and creating situations where it doesn't apply.

• 15:55Peter Shamshiri?

  I think what's really happening here at the end of the day is that Scalia is just like, well, who gives a shit about the knock and announce rule, right? He's trying to say this doesn't matter, but he doesn't want to overturn the case that said knock and announce is part of the Fourth Amendment from what's basically 10 years prior. So he's just like, you can imagine a world where they obeyed the Constitution and we're fine.

• 16:17Michael Liroff?

  Right.

• 16:17Peter Shamshiri?

  Another thing Scalia does here in several contexts is he discusses the cost of excluding the evidence of crimes, where he's sort of like, look, if you exclude too much evidence, then like criminals are going to be getting away with a lot of crime, right?

• 16:31Speaker 04

  Classic conservative argument here.

• 16:33Peter Shamshiri?

  Right.

• 16:34Speaker 04

  Classic.

• 16:34Peter Shamshiri?

  Right.

• 16:34Speaker 04

  They do this constantly.

• 16:35Peter Shamshiri?

  And it's pure policymaking, right? Just a roundabout way of rewriting the Constitution. It's like, yeah, you probably would catch more criminals if no one had any rights, right? If like, if Big Brother could just watch what you do all day and be like, jaywalking, boom, got you, then yeah, you'd catch more people committing crimes. That, I don't think that's arguable. Like his prior point, it's just besides the point. The point is that the police violated the Constitution, right? So if you're like, oh no.

• 17:08Peter Shamshiri?

  The evidence is excluded. That means the criminal might get away. It's like, yay, better not violate the Constitution when you're executing search warrants, right?

• 17:16Speaker 04

  The cost of excluding evidence of crimes is the cost contemplated by the Constitution.

• 17:21Peter Shamshiri?

  Right.

• 17:22Speaker 04

  It's a function of the Constitution existing, actually.

• 17:24Peter Shamshiri?

  You like, do you think that the founding fathers didn't think about that element?

• 17:27Speaker 04

  Right. That, that's in fact, the point, right?

• 17:30Peter Shamshiri?

  Right.

• 17:30Speaker 04

  Is that the police can't prosecute you, the state cannot prosecute you, and oh, well, because they violated your constitutional rights.

• 17:40Peter Shamshiri?

  You're, the right to a jury trial probably

• 17:43Michael Liroff?

  Yeah, I was gonna say.

• 17:44Peter Shamshiri?

  prevents a bunch of people from landing in prison.

• 17:47Michael Liroff?

  Requiring unitarity from the jury, requiring proof beyond a reasonable doubt. All these things make it harder to prosecute criminals. But guess what? The Constitution requires it. Like, that's the thing.

• 17:58Speaker 04

  Yeah.

• 17:58Peter Shamshiri?

  He's like, I don't, I don't know if James Madison thought of this, but there will be more criminals if we have to obey these requirements. Scalia goes on to say that we don't need the exclusionary rule as a deterrent because you can always just sue for damages, right? You can just sue for money if the police violate the rule, which, as the dissent points out, is generally just not true because of civil immunities for police, right? You'll almost never be able to successfully sue for damages. And even if you could, it doesn't really make sense as a remedy here, right? Like, the, the point of damages is to compensate you for your loss. You crash into my car, maybe I sue you for the value of my car, and now I'm good, right?

• 18:42Peter Shamshiri?

  I've been made whole. I buy another car and I'm back to where I was. If police illegally obtain evidence, it's not like, oh, I'll just sue for $15,000. Like, I'm in fucking prison now, right?

• 18:53Michael Liroff?

  Right.

• 18:54Peter Shamshiri?

  It just doesn't make sense as a remedy. And there's one last item here I want to touch on, which is that Scalia says that over the past several decades, from like, the mid-century up through 2006, when the case is happening, police have improved their practices and now, quote, "take the constitutional rights of citizens seriously."

• 19:19Peter Shamshiri?

  Which, alright.

• 19:22Peter Shamshiri?

  All right, if I, here's the thing, you have to separate those things out because one of them is probably true. Police improved their practices. Mm hmm. Probably true. Research shows probably true. And if you're thinking, but police are still terrible now, yeah. Yeah. They were worse. They were, they were worse in the seventies.

• 19:39Speaker 04

  Like, maybe there are policies now.

• 19:41Peter Shamshiri?

  Right.

• 19:42Speaker 04

  There didn't used to be. That is an improvement.

• 19:44Peter Shamshiri?

  But the other half of that statement is that police take the constitutional rights of citizens seriously, which is just such a bizarre thing to put in your opinion. It's just like, first of all, you're just, you're just saying this? Like, what does it even mean? Right? What does it even mean?

• 19:57Speaker 04

  It's a vibe you have. Yeah.

• 19:59Peter Shamshiri?

  Yeah, it's just this, it's just a vibe he has. He's just like, police are cool now. Police are nice now. And, and to support this point, he quotes a book by a dude named Sam Walker, saying that since the mid-century, there have been, quote, "wide-ranging reforms in the education, training, and supervision of police officers." The argument being that we don't need to rely on the exclusionary rule to deter police misconduct anymore because the police have improved so much, right? So we need to, we can be less reliant on this rule. This prompted the author himself, Sam Walker, to publish a response in the LA Times where he said Scalia is misunderstanding the book.

• 20:44Peter Shamshiri?

  The point was that the Supreme Court decisions during the Warren Court era in the mid-century had forced the hands of the police.

• 20:53Speaker 04

  Yeah.

• 20:53Peter Shamshiri?

  They had forced police to reform their policies. So Scalia is getting it exactly backwards. He's saying, well, we don't need these legal rules anymore because police have reformed their policies. But the reality is that the police only reformed their policies because of the legal rules.

• 21:08Speaker 04

  Exactly.

• 21:09Peter Shamshiri?

  Right.

• 21:10Speaker 04

  It's so classic 5-4, Peter, like, like you said at the beginning, because it's layers and layers of just Scalia bullshit and classic conservative bullshit. You're talking in circles, you're making things up, you're not talking about the real world, and you're saying there's a hypothetical world that exists where everything is okay, and so that makes this okay.

• 21:34Peter Shamshiri?

  Right.

• 21:34Speaker 04

  There's a concurrence in the case that's written by Anthony Kennedy, you know, lauded as like a libertarian, and we'll get to that in a minute. But I hate these little bitches so much that I think I might usually just be like, here's what- The concurrence said, it's dumb. Let's move on. Let's get to the discussion part. But I think this is worth spending some time on because Anthony Kennedy like runs cover for this bad, bad, bad, bad majority opinion. And it is quintessential lawyer brain doing the quintessential lawyer brain thing where he comes up with a bunch of fake reassurances for why this decision is not a bad thing. He joins the majority here and

• 22:17Speaker 04

  is telling us throughout with all these classic conservative justice techniques, right? First, there is a reference to quote unquote ancient principles. Anthony Kennedy says knock and announce is an ancient principle, which, okay.

• 22:33Michael Liroff?

  Days of Rome.

• 22:34Speaker 04

  Right, yeah.

• 22:36Peter Shamshiri?

  What are you, like, what are you talking about?

• 22:38Speaker 04

  Right, right. It's like, okay. And he says, quote, "The court's decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law's concern."

• 22:50Peter Shamshiri?

  Mm-hmm.

• 22:50Speaker 04

  How else should it be interpreted?

• 22:52Peter Shamshiri?

  Yeah.

• 22:53Speaker 04

  What else does it suggest?

• 22:54Michael Liroff?

  Yeah.

• 22:54Speaker 04

  What are you talking, it's an ancient principle.

• 22:57Peter Shamshiri?

  I feel like the fact that he needs to step in and say this just sort of like highlights the fact that it does in fact suggest that.

• 23:04Speaker 04

  A thousand percent.

• 23:05Peter Shamshiri?

  Like, if it didn't suggest that the knock and announce rule was trivial, then why would you feel the need to say it out loud? That's all. That's all I'm saying.

• 23:13Speaker 04

  Exactly. Oh, and by the way, this concurrence is like two, three pages, right? And he's, he's pulling out all these techniques. Next, the use of lofty language about the importance of a right that you Supreme Court justices are taking away, but saying that you aren't taking away. So he's talking about like privacy and security in the home and how that's understood as an important principle in the Constitution. He says, quote, "This common understanding ensures respect for the law and allegiance to our institutions, and it is an instrument for transmitting our Constitution to later generations undiminished in meaning and force."

• 23:52Michael Liroff?

  No.

• 23:53Speaker 04

  Okay.

• 23:57Speaker 04

  Like, it's so like, it's like saccharine, it's like, I don't know, it's, it's, he's on Mars with, with how lofty this language is. All right, next technique, classic conservative. Don't worry, the system has a ton of fail stops, right? He says, "Our system, quote, "has developed procedures for training police officers and imposing discipline for failures to act competently and lawfully."

• 24:25Peter Shamshiri?

  The cops are gonna handle any misbehavior themselves, folks, don't worry.

• 24:29Speaker 04

  Don't worry, the cops are good and better now. And he says, "If those failures happen," just like the majority says, "there's 1983, section 1983, those civil rights laws that you can sue under. Don't worry about it."

• 24:45Peter Shamshiri?

  Right.

• 24:46Speaker 04

  Never mind, of course, qualified immunity. Never mind how difficult it is to succeed on a 1983 claim, right? Next conservative technique you see in these very short passages. Precedent doesn't let us come down any differently.

• 25:01Peter Shamshiri?

  Yeah.

• 25:01Speaker 04

  Okay, our hands are tied, we have to do this. Precedent says that there needs to be a causal link between the Fourth Amendment violation and the evidence that was obtained.

• 25:11Peter Shamshiri?

  Not true, by the way, but.

• 25:12Speaker 04

  Right, that it's, yeah, it's a misstatement of precedent and it's a misstatement of what happened in this case. Because there is a causal link. They violated the Fourth Amendment and they found guns and drugs in the house, so.

• 25:24Peter Shamshiri?

  Well, yeah, but you had parallel universe exception, right? This is the thing is like, if you do this whole, this is like what Scalia is doing and what he's embracing here, where he's like, "Well, the illegal aspect wasn't the cause of finding the evidence," but it's like, but then you get into this weird, abstract, parallel universe. Right. That doesn't make any sense. Whereas like, there's another rule just sitting right there, which is like, "If you violate the Constitution, you don't get, you don't get to use the evidence." Like, doesn't that feel simpler? Doesn't that feel like a cleaner?

• 25:57Speaker 04

  Yeah. Instead of loop-de-loos and acrobatics. And then last thing, last conservative technique. This isn't a big problem. If it was a big problem, we would do something about it.

• 26:09Peter Shamshiri?

  Right.

• 26:10Speaker 04

  He says, quote, "Today's decision does not address any demonstrated pattern of knock and announce violations. If a widespread pattern of violations were shown, and particularly if those violations were committed against persons who lacked the means or the voice to mount an effective protest, there would be reason for grave concern." Well, what the hell, Yana, do you think is gonna happen now? If you didn't think violating the knock and announce rule was a widespread problem until this point, what about now that y'all ruled this way?

• 26:41Peter Shamshiri?

  Look, we're gonna open these floodgates, and if the water pours in, then maybe we'll do something about it.

• 26:47Speaker 04

  Yes. It's crazy. It's so crazy. And the whole time is like, yeah, obviously, he's looking at the majority opinion and thinking, hmm, people are gonna have some problems with this. And he's just saying, dear, dear, don't worry, you know?

• 27:01Peter Shamshiri?

  Yeah, it'll be okay. It'll be okay.

• 27:03Speaker 04

  Yeah.

• 27:04Peter Shamshiri?

  This is great because both Kennedy and Scalia have a little bit of libertarian cred.

• 27:12Speaker 04

  Yeah.

• 27:12Peter Shamshiri?

  And this just goes to show, I feel like with Scalia, he does have a libertarian streak on some of this stuff, including in the Fourth Amendment context. But sometimes, he gets very scared of criminals.

• 27:25Speaker 04

  Yeah.

• 27:25Peter Shamshiri?

  Mm-hmm. Like, if he has trouble putting himself into the shoes of the defendant, then he's sort of just like, well, this is just protecting criminals. And he sort of says this in the opinion where at some point, he says like, you know, there's some concern that the Fourth Amendment, if you interpret it too aggressively, mostly just like redounds to the benefit of criminals rather than ordinary people. And he's sort of like presenting that as like this, you know, this horrifying dilemma that like, maybe we should be rethinking things. Because I do think at the end of the day, he's very reactionary, and he's just thinking about criminals. Like, we need to stop crime.

• 28:02Michael Liroff?

  Yeah, and it's like Scalia, for example, you know, he joins the majority, he may have even wrote in the majority in Kylo of the United States, where it was all about thermal imaging. Because yeah, he can put himself in the shoes of someone who maybe the cops are using thermal imaging to to look into your house, because maybe they're a little freer with their new technology that lets them peer through walls than they are with knocking down doors, right? It feels like a variation on the good boys, bad boys theme, right? Where it's like, could this apply to good boys first? Could this, would this only apply to bad boys? Sort of logic, I think. Yeah.

• 28:40Peter Shamshiri?

  Yeah.

• 28:41Michael Liroff?

  Let me tell you, folks, that is not libertarian.

• 28:43Peter Shamshiri?

  I also think, I wonder whether his own opinion of the defendant here.

• 28:48Michael Liroff?

  Yeah.

• 28:48Peter Shamshiri?

  Is relevant, right? He's sort of like, well, they found guns and drugs.

• 28:51Michael Liroff?

  Right.

• 28:52Peter Shamshiri?

  So he's a bad boy.

• 28:53Michael Liroff?

  Yeah, exactly, exactly. That absolutely colors it. And this is not libertarianism. That's not what libertarianism is. That's just being a reactionary who sometimes is like, well, we don't love government overreach, right? Right? Like, that's, that's all that is. So I mentioned before, there is a dissent. It's by Breyer. All four liberals join. You know, it's, it's pretty good for, for the era. Like I said before, it's very funny, because there are several times where he's just like, it's literally like, he's like, you can imagine him like almost dictating to his clerk being like, but I, but, but I don't get it. But they did, they did violate the constitution. And he like explains it, he's like, they wouldn't find the drugs and guns if they weren't in

• 29:38Michael Liroff?

  the house. And they wouldn't have been in the house but for their entry to the house. And their entry to the house was illegal because they didn't knock it and announce. He's like, I don't understand. Like, just, just, my man is fighting here. He's fighting for his life, trying to understand this. He's punching the air. Does not get it. He does not get it.

• 30:00Peter Shamshiri?

  This is like a good faith liberal trying, trying to reason with a bad faith actor, right? And like, not understanding that it's bad faith. So he's just like, what are you talking about? This doesn't make sense.

• 30:14Peter Shamshiri?

  Scalia is on the other side, like, we're gonna stop the criminals.

• 30:19Peter Shamshiri?

  No, there's like no rash, there's no reasoning to it.

• 30:24Michael Liroff?

  There's some good stuff in, in here where he, you know, he does a good job of going through the case law and explaining why, you know, it's misrepresented in the majority in the concurrence. It talks a bit about what's called inevitable discovery, which is an exception to the exclusionary rule that says if the police inevitably would have discovered this information through an independent means, then it's allowable. So an example would be like cops detain a guy, bring him in, don't read him his Miranda rights, rough him up, punch him in the stomach, slap him in the face, brace him against the wall, threaten him. And he's like, okay, yeah, I did it. I killed this person. The body's in this

• 31:05Michael Liroff?

  field. And they go to the field, the body is there, they collect a bunch of evidence. Well, that evidence would be excluded. The body would be excluded unless maybe there's a big volunteer search effort. Maybe they have cadaver dogs with them. Maybe they were scheduled to hit the field the very next day.

• 31:23Speaker 04

  Right.

• 31:24Peter Shamshiri?

  Maybe there's another person who helped him who confesses, right?

• 31:27Speaker 04

  Right. Yeah.

• 31:29Michael Liroff?

  Courts would look at this and likely not only could, but likely would say, well, look, this body was going to be found anyway. It was going to be found the next day or the day after. And so, yes, that was a violation. But that violation is not the only reason they found this evidence. And the other reasons are not tainted by this violation. And so that evidence comes in. And Breyer's like, but that's not, that didn't happen here. Cause again, they did violate the constitution entering the house. And that's how they found the evidence. And there was no other way. There's no other group of cops coming, right?

• 32:02Peter Shamshiri?

  Right.

• 32:03Michael Liroff?

  Only in the parallel universe, not in the real world. In the real world, there were no other cops coming to search the house who would have behaved correctly, right? It's just, it's a lot of this. It's a lot of this. And a lot of discussing why like deterrence is really important and why this will ruin deterrence and how, you know, they found that when cops don't, aren't subject to the exclusionary rule, they aren't deterred, right? Like there was a period where the exclusionary rule applied it to the federal government, but not the states. And in that period, state cops, you know, went wild. And then the court applied it to the states in a case called Matt v. Ohio.

• 32:48Michael Liroff?

  And all of a sudden, state cops started behaving better. What do you know? When your evidence might get excluded, you, you do a better job of following the rules.

• 33:01Peter Shamshiri?

  Yeah, I will say that it does seem like Breyer, for all of his sort of like liberal naivete, has like a fundamental understanding of the incentives here, right?

• 33:12Michael Liroff?

  Yes, yes.

• 33:13Peter Shamshiri?

  Where he's just sort of like, well, why would they obey the constitution if there's no reason not to? Like, that doesn't make sense.

• 33:21Michael Liroff?

  He's like, we.

• 33:22Peter Shamshiri?

  And Scalia is like, they will. Yeah.

• 33:24Michael Liroff?

  Yeah.

• 33:25Peter Shamshiri?

  How dare you besmirch our noble police officers?

• 33:30Michael Liroff?

  So, you know, it is, it's, it's good. It is tonally very funny because he just seems so confused. And I enjoyed that solid dissent and a good sort of tour of all the ways the majority is disingenuous at best.

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• 36:30Michael Liroff?

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• 36:46Peter Shamshiri?

  I feel like this is a return to one of the early themes of Five to Four, where we always talked about rights without remedies. If they say, well, the Fourth Amendment mandates that police have to knock and announce, but then there's absolutely no punishments.

• 37:03Peter Shamshiri?

  Or downside when they don't, then you don't actually have a right, right? Like, it's not part, it's not really part of the Fourth Amendment. Because without a remedy, there is no right, right? The, the right is just the government granting you protection, right? But if there's no back end protection, the front end right doesn't actually mean anything. It's just a little thumbs up.

• 37:25Michael Liroff?

  It's just flowery language.

• 37:27Peter Shamshiri?

  Yeah.

• 37:28Michael Liroff?

  I think we've been getting at this, maybe we've said it explicitly, but I'm not sure if we have. But like, the reasoning of the majority is not just an attack on, you know, the entire rationale of the exclusionary rule as it relates to no knock warrants. It's an attack on the entire rationale for the exclusionary rule altogether, right? Yeah. It's an attack on the Fourth Amendment. Like, there's no protection at all if the analysis is, well, if the cops did obey the rules, they would have found the evidence, right? Like, there's no limiting principle to that, except what the conservatives feel comfortable with allowing and what they don't, right? That's the only limiting principle here.

• 38:12Michael Liroff?

  But like, sort of jurisprudentially, logically, like, just on its face, there's, there's no reason this can't apply to the Fourth Amendment entirely. Which is, you know, sort of the problem. And what's frustrating is like, the Fourth Amendment does like allow for circumstances where, you know, cops might have a reasonable fear of danger in executing a knock and announce entry. A lot of states allow for specific, like, no knock warrants and things like that. Like, the Fourth Amendment jurisprudence is broad and nuanced. And there's a lot of exceptions and a lot of leeway given to cops, probably way too much leeway given to cops, as we've talked about a lot.

• 38:56Peter Shamshiri?

  There's just absolutely no need for this, right? Right. Like, it's just superfluous. As you alluded to, you can get a type of warrant that says you don't need to knock and announce. And it has become increasingly easy to get those warrants. All cops have to say is, well, we're looking for drugs and we think that if we knock and announce, that'll give them the opportunity to destroy some of the drugs, right? They're gonna flush the coke. And then judges will be like, alright, here's your no-knock warrant, right? Right. It just sort of highlights the absurdity here because the burden on police is like paper thin. Right. Barely anything.

• 39:41Peter Shamshiri?

  And then Scalia is saying like, hey, don't even worry about it, man.

• 39:44Speaker 04

  Yeah.

• 39:45Peter Shamshiri?

  Right.

• 39:45Speaker 04

  And, and it's just like, it completely, it's not just like rewriting the constitution. It's like erasing the constitution and erasing the reality that we live in because the exclusionary rule was established because of widespread police abuse of citizens, of people, right? That there needed to be a massive deterrent that was put in place, a deterrent mechanism that was put in place so that police stopped violating the Fourth Amendment, you know? And Scalia, the majority here, Kennedy, nobody is contending with the reality that police violate the Fourth Amendment, that there is still widespread abuse and there

• 40:29Speaker 04

  has to continue to be these deterrent mechanisms to try and stop that abuse, right? To, to make sure that there's some sort of punishment, there's some sort of cost to violating people's constitutional rights, especially in a context where you can't fucking get damages for your Fourth Amendment rights being violated. Look it up, no, like.

• 40:48Peter Shamshiri?

  It never happens.

• 40:49Speaker 04

  It never happens. It never happens. And so, you know, talking about no-knock warrants, for example, I think no-knock warrants is like a good, like, little case study about how the mechanisms, the tools, the weapons, really, that cops are given all of the time are rife with potential abuse and are abused all of the time. I mean, you know what, before we even get to no-knock warrants, consider the knock and announce rule.

• 41:17Speaker 04

  How often do you think that that is actually violated? It's all the fucking time. It's all the fucking time.

• 41:23Peter Shamshiri?

  Knock, knock, police, boom.

• 41:25Speaker 04

  Knock, knock, police, enter.

• 41:27Peter Shamshiri?

  Yeah. Right. Yeah. I feel like I was, I was talking to you about this, Ree, because I was like, I've, I've watched some body cams in my day and I fucking never see him wait.

• 41:38Speaker 04

  Yeah. It's like, it's a, it's a mere technicality, a little formality. And what you have here is the Supreme Court green lighting, like, yeah, you're right. It is a formality. It is a little technicality. You don't really have to pay attention to it, right?

• 41:52Peter Shamshiri?

  Right.

• 41:52Speaker 04

  But, but let's get into no-knock warrants, for example, right? And again, we live in the real world where we know that the context is all of these weapons that are given to police are going to be abused. People's rights are going to be violated. And shouldn't the Supreme Court, in its position, be orienting itself to stopping those violations? To doing something, right? To, to keep up the deterrent mechanisms that can be placed in the way of police abusing people and hurting and harming people on no-knock warrants. Back in 2020, after Breonna Taylor was killed during the execution of a no-knock warrant at her home in Louisville, Kentucky, Radley Balco, who is the author of a book called

• 42:32Speaker 04

  The Rise of the Warrior Cop, said that there are, on average, eight to 10 cases per year where a completely innocent person is killed in a no-knock warrant raid. Another 20 or 30 cases where someone who, yes, might have some drugs or might be, you know, guilty of, of having the evidence that is suspected, is killed. We're talking 40 people a year.

• 43:01Peter Shamshiri?

  I, I think when he said 20 to 30 who have drugs, he's saying, but not guns. Right. Like, people who are not armed, not posing a threat.

• 43:09Speaker 04

  Right, right. 40 people a year killed by no-knock warrants?

• 43:13Peter Shamshiri?

  Right.

• 43:14Speaker 04

  And to Scalia's point about the, the cost of the exclusionary rule. Well, if the exclusionary rule applied in these cases, then a bunch of guilty people would like go free or we wouldn't get, we wouldn't get the bad guys, right? The Center for Justice Research at Texas Southern University reported that 36% of no-knock search warrants fail to produce any illegal drugs.

• 43:38Speaker 04

  And 50% of those searches were executed on homes where no guns were found.

• 43:44Michael Liroff?

  Yeah.

• 43:44Speaker 04

  So we're talking about incredibly dangerous, violating circumstances, weapons that the police can use on people that are not effective in the way conservatives say police have to be, right, or police have to be protected in doing. It's not even effective.

• 44:02Michael Liroff?

  Thinking about this and thinking about Scalia and just how off-base he is, I just, what other parts of the warrant requirement and the warrant itself are optional, right?

• 44:15Peter Shamshiri?

  Right.

• 44:16Michael Liroff?

  If the warrant says, you know, to be served on Monday and you serve it on Tuesday, does that matter? If it says, "Search, you know, the garage and the office for drugs," and they search the bedrooms and find drugs or a weapon there, does that matter? If it says apartment A and they go into apartment B, does that matter, right? Like, like-

• 44:43Speaker 04

  Which happens a lot, which happens a lot.

• 44:46Michael Liroff?

  Like, like, why, why is any part of this optional, right? Like, I don't care if you had a warrant. If you didn't follow the warrant to the letter, you didn't have a warrant. You didn't have a warrant for what you did.

• 44:58Speaker 04

  Yeah.

• 44:59Michael Liroff?

  Right? You had a warrant for something else that you didn't do. And that's all that matters, right? Like, that's it. That's all that matters.

• 45:05Peter Shamshiri?

  That's the thing is, I feel like the way that they think about warrants is like a grant of access to a place, right?

• 45:13Michael Liroff?

  Right.

• 45:13Peter Shamshiri?

  Whereas like, I would think of it as like a specific set of rules that they need to adhere to.

• 45:20Michael Liroff?

  Right.

• 45:20Speaker 04

  Yeah.

• 45:21Peter Shamshiri?

  If, right? And so I feel like they're thinking about it in this sort of weird way where it's sort of like, well, this is my key to that person's apartment or house or whatever, right? And yeah, so maybe you, maybe you fuck up the details a little bit, but who cares, right? Fundamentally, I was allowed access. But I think the proper way to look at it is just like a relatively rigid set of rules that you need to adhere to, right? If you want to stay in compliance with the Constitution. But that's just not how they think about it because they're all playing cops and robbers. You know, you think about how like ICE is operating right now, right? Not just in the Warren context, but in some cases in the Warren context.

• 46:06Peter Shamshiri?

  But they're acting with impunity in part because there's been, there's a lot of leeway that they get in these situations.

• 46:13Michael Liroff?

  Right.

• 46:14Peter Shamshiri?

  If courts were consistently saying, hey, if you violate the Fourth Amendment even a little bit, you're fucked. Like whatever guy you grabbed isn't going to be deported, right? Then maybe they actually have to stop and slow down, get permission from courts, shit like that. Like actually follow the letter of the law. But in many respects, conservatives on the court have been sort of building this structure where it's a little bit looser than that, right? You can make some mistakes. Maybe you can make some mistakes on purpose and you're still fine.

• 46:51Peter Shamshiri?

  And I, I think ICE very much like operates under that principle and, and feels like an extension of the worst impulses of modern police in that respect.

• 47:03Speaker 04

  Yeah. And there's no feeling or indication that they will be held accountable for violating people's Fourth Amendment rights, right? It's, it's very much a like, ask for forgiveness later. And it, it'll be even more than forgiveness. It'll be like support and a green light to keep doing it from the Supreme Court at least, you know?

• 47:23Michael Liroff?

  Right. Like they, they fucking murdered two people right on camera in Minneapolis. And the, the only hope for any accountability for that is if there's like a damn president who appoints an attorney general who's not a fucking doormat like our last one was.

• 47:38Peter Shamshiri?

  Right.

• 47:38Michael Liroff?

  Right? Like there's just none.

• 47:41Peter Shamshiri?

  And if, if I'm an incoming attorney general in the next Democratic administration,

• 47:49Peter Shamshiri?

  I'm, I'm, I'm doing like, you know, you know how like the, you know, the Trump team is doing psychotic tweets every day? I'm doing, I'm just like posting their pictures, those cops and being like flee the country bitch. You better run. Just like a list of non-extradition countries, you know?

• 48:09Peter Shamshiri?

  I think that the Trump administration now is kind of interesting in a way because we, we talk about these old cases and we talk about like the conservative philosophy about criminality and good boys and bad boys and things like that. And we talk about the absurdity of the layers of immunity that police get, right? The layers of insulation that they get from accountability. Not only can you not really sue them, but their evidence isn't even excluded when they illegally seize it, right? I think the Trump administration is one of the first where you have a ton of people within it who also see the absurdity

• 48:50Peter Shamshiri?

  that we see, right? That this has created a, a police force, federal and state, that is completely unaccountable. And they are happy about it. They want to weaponize it, right? It's not that they don't agree, right? It's not that they're like, oh, there are other methods of accountability. Someone like Stephen Miller recognizes that there's no accountability at any level. And he's like, oh, how can we take advantage of that?

• 49:17Michael Liroff?

  Right.

• 49:17Peter Shamshiri?

  How can we take advantage of this permission structure that we've been handed?

• 49:20Michael Liroff?

  Right. We have been building the fascism machine and, and now we control it. And now it's time to, to deploy it, right? Like, that's, that's it.

• 49:29Peter Shamshiri?

  Like Anthony Kennedy is like, these are sacred rights. And Stephen Miller is reading this case like, whatever nerd. Yeah, dude. Thanks, you know, thanks for the power. We're gonna, we're gonna go abuse it now. You can, you can go die slowly.

• 49:45Michael Liroff?

  Right.

• 49:45Peter Shamshiri?

  Which by the way, every time for the past couple of years that we've talked about Anthony Kennedy, I've like quietly Googled on my phone because I was like, wait, is he?

• 49:56Michael Liroff?

  I know he's still alive because he told Donald Trump, he's, he's making the, teaching the kids to love America again. Just, just.

• 50:02Peter Shamshiri?

  That's right. But that was like over a year ago now.

• 50:05Michael Liroff?

  Oh, that's true. He could have died.

• 50:06Peter Shamshiri?

  When you're 89. That's, that's a long year, buddy. But yeah, Anthony Kennedy's still alive somehow, still hanging on. And, and a big Trump fan. Thank you for teaching the kids to love America again. Finger on the pulse, Anthony. That's definitely what's happening, dude.

• 50:24Michael Liroff?

  Oh, yeah. Oh, yeah.

• 50:29Peter Shamshiri?

  All right.

• 50:33Peter Shamshiri?

  Next week, we technically should be doing a premium episode, but just today, a hot one dropped. We're going to be doing Charles v. Salazar, the case fresh out of the Supreme Court about conversion therapy. Follow us on social media, at 54Pod, subscribe to our Patreon, patreon.com/54pod, all spelled out, for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week. Bye.

• 51:07Speaker 04

  Bye, y'all.

• 51:08Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Alison Rogers. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.