Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Booker Hudson was sitting at home minding his own business when the police knocked his door down. As it happens, the business that he was minding was the drug business. That, however, is not the point. Or at least it didn’t used to be the point. For longer than anyone can remember, it has been the law in this country that before the police knock down your door, they have to give you a fair chance to open your door. In the language favored by lawyers and judges, the police must “knock and announce their purpose and authority.” Only if the householder fails to comply may the police huff and puff and blow the door down. Whatever else it does, the Fourth Amendment-guaranteeing our freedom from unreasonable searches and seizures-protects the sanctity of our homes. When that sanctity is violated by the lawless actions of the police, the exclusionary rule remedies the violation by restoring the status quo ante: The police cannot derive a benefit, and the householder cannot be penalized, as a result of the constitutional violation. In effect, the exclusionary rule picks up the pieces of the shattered door and-doing what all the king’s horses and all the king’s men couldn’t do for Humpty-Dumpty-puts them back together again and closes them in the face of the police. That was the law for a very long time-until Justice Antonin Scalia authored the opinion of the U.S. Supreme Court in Hudson v. Michigan. No, Scalia didn’t exactly say that the police can come crashing through the front door any time they please. What he said was that if the police do come crashing through without giving the householder a fair chance, or any chance, to open that door, the exclusionary rule doesn’t apply. Any evidence the police find will be admissible. The householder can’t ask to have the evidence suppressed on the ground that it was obtained in violation of his constitutional rights. Whether Scalia’s arguments fail as a matter of jurisprudence is a question I leave to wiser parties in converse. But his arguments are symptomatic of an institutional problem with the court about which too little has been said, and about which something needs to be said. Once upon a time, Supreme Court justices came to their high office from many different walks of life. Hugo Black had been a small-town Alabama lawyer who rose to U.S. senator. His contemporary, Frank Murphy, earned his spurs as a young municipal court trial judge in Detroit, presiding over the heralded trial of Dr. Ossian Sweet. Sweet was defended by Clarence Darrow, but it was Murphy’s courage in the face of popular sentiment as much as Darrow’s advocacy that enabled the African-American Dr. Sweet to be acquitted on charges of homicide of the white men who invaded his home. All of which invites the question: Who was the last Supreme Court justice who actually devoted most of his career, prior to his ascension to the high court, to the representation of people? Not to the representation of the U.S. government or Fortune 500 corporations; not to a professorial life at an Ivy League law school; but to the representation of people? Who was the last Supreme Court justice who, as a lawyer, had ordinary men and women walk into the office and tell him their troubles? Who tried cases to juries, made jail visits, appeared at arraignment calendar, took phone calls at night because the client didn’t know who else to call, and got yelled at by a state court trial judge for no good reason? Who offered a client a tissue, or a shoulder, to cry on, or handed a court-appointed client a five-dollar bill (for which he would never be reimbursed) to get a cheap meal and a bus ride home after the acquittal? You can make money promoting bets around the water cooler on this one. The last U.S. Supreme Court justice who got his daily bread representing ordinary Americans before he became a justice was Thurgood Marshall. For the record, Marshall ascended to the Supreme Court in 1967-40 years ago. He departed the court in 1991-a decade and a half ago. The justices of the present Supreme Court are, to be sure, lawyers of exceptional scholarship. They are possessed of the finest academic credentials. They have lectured at all the finest law schools, and held academic appointments at some of them. But do they live in the world over which they preside? A lack of relevant experience The question is of constitutional significance. Whether the search of Hudson’s house, or your house, or mine, is reasonable under the Fourth Amendment is a question very difficult to assess by looking down, a very long way down, from the heights of a judicial lamasery. To the interpretation of a Constitution designed to provide equal justice under law to a polyglot mass of 300 million people, intellect and rhetorical skills are necessary but not sufficient conditions. Scalia and his brethren have intellect and rhetorical skills aplenty. But even Scalian scholarship and prosodic pyrotechnics will not entirely compensate for a lack of life experience with the cops, witnesses, lawyers, defendants, jurors, bailbondsmen, snitches and other ordinary folk who provide the fact-patterns upon with the high court’s Fourth Amendment jurisprudence is based. Just ask Booker Hudson. Or his family, who now sleep in a house without a front door. Milton Hirsch is the author of the treatise Hirsch’s Florida Criminal Procedure. He is a past president of the Florida Association of Criminal Defense Lawyers, Miami chapter. An adjunct professor at the University of Miami School of Law, he recently authored The Shadow of Justice , the first novel published by the American Bar Association.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.