Today the Supreme Court hears arguments in Michigan v. Hudson -- on knock and announce. Arguing for Michigan is none other than Tim Baughman who talked to us at the TDCAA appellate advocacy course last year.

Thanks for the notice. I'll be watching for the result. I cited the case in a brief recently, and pointed out to the COA that the USSCt may very well address the issue in that case.

How in the world can the SC conclude that a knock and announce violation should result in suppression? The evidence was not "obtained" through a 4th amendment violation; it was not the fruit of the violation; it just happened to co-exist. To find otherwise would be to suggest that the defendant gets the right to have a little time to destroy the evidence.

John Bradley
District Attorney
Williamson County, Texas

John, the idea is an innocent homeowner has time to respond to the warrant. After all, front doors can be pretty expensive these days.

Let the remedy be a new door.

The Supreme Court has set Hudson to be reargued. Interesting. That means Alito is probably the deciding vote.

It may be true that you can usually only lose a case during argument and often argument doesn't provide any additional enlightenment oustide the briefs. But I guess this case is some evidence that argument can be important and should always be taken very seriously (at any level of court). I have heard both Judge Cochran and Justice Fitzgerald endorse argument. If we argue only for their benefit, it is worth the opportunity to provide that one sweet little pearl that will persuade someone in our side's favor. As an aside, if argument contributes so little, why do trial courts permit counsel to argue as well as brief issues?

[This message was edited by John Stride on 04-20-06 at .]

It may not be so much the tenor of the arguments, but the composition of the Court. Justice O'Connor participated in arguments, but retired upon the confirmation of Justice Alito. Under the Court's internal rules, a Justice who does not participate in argument does not participate in the decision. The Court can set the case for re-argument if the court is evenly split, thus allowing Justice Alito to break the tie.

The argument transcript seemed to me to indicate more support for the defense side in the case, but another prosecutor who read it thought the opposite.

It could be, too, that the arguments helped identify some new aspect of the case that the Court wants to develop further in the new argument.

I remember an argument at the court where I clerked that changed the outcome. The written briefs and the court's workup indicated an easy affirmance. When the court questioned counsel about the particular aspect identified by the staff as controlling the case, he was able to quickly show how it did not work. The panel literally said, "Well, that changes everything" when they came down from the bench.

Chief Justice Roberts (for a unanimous court) seems to say in Brigham City that the knock and announce requirement is part of the determination of the reasonableness of the police conduct. If so, then ipso facto the fruits might become the result of an unreasonable search and thus subject to the exclusionary rule. I still agree a new door would be a better penalty. My prediction is that if knocking becomes a prerequisite, then we will see the reasons for not knocking quickly accepted as well. Will the court also deal with how hard or loud the knock must be and exactly how long the wait must be?

Will there be a good faith exception for doorbells that don't work?

John Bradley
District Attorney
Williamson County, Texas

And apparently it's a 5-4 decision upholding the actions of the police. Hurray for good sense prevailing.

Any thoughts?