Archives

Updated: 01-07-16

Home

Current Case Review

Firearm Laws

  Victor D. Quilici
  (847) 298-2566
  victorq@ameritech.net

  Website Powered by
  Eyevertise, Inc.
  www.eyevertise.com

Firearm Laws
	United States v. Mixon, C.A. 7 (Wis.) , 457 F. 3d 615 (6/12//06) People v. Price. Ill. App. 1st District. ____N.E. 2d ____, 2007 WL 2163997 UPDATE: U.S. Supreme Court Accepts D.C. Gun Ban Appeal SMALL v. UNITED STATES People v. Collins, 824 N.E. 2d 268 The City of Chicago et al., vs. Beretta U.S.A Corporation, et al. DOJ Opinion: The Second Amendment secures a right of individuals generally. People vs. Smythe, 352 I11. App. 3d 1056. People v. Cameron, 336 Ill. App. 3d 548. People v. Watkins, 361 Ill. App. 3d 498 (3rd Dist 2005)
Search & Seizure
	Hiland v. Trent, 868 N.E. 2d 396, Third District Appellate Court (5/16/07). People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District. United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006) People v. Miller, 824 N.E. 2d 1080 , Illinois 1st District Appellate Court (2-7-05). HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159 People v. Dieppa, 357 Ill. App. 3d 847 ILLINOIS v. CABALLES. U.S. Supreme Court (1/25/05) on writ of certiorari to the Supreme Court of Illinois. 03-923 DEVENPECK et al. v. ALFORD No. 03-710 People v. Parra, 352 Ill. App. 3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04) People v. Travis Smith, 346 Ill. App. 3d 146, 803 N.E. 2d 1074 People v. Starbuck, 358 Ill App. 3d 234 (3rd Dist. 2005) People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct., March 2006) People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005) and People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)

HUDSON v. MICHIGAN. United States Supreme Court, June 2006.
126 S. Ct. 2159.

The United States Supreme Court has rendered a decision that may prove to be a severe blow to one of our fundamental 4^th Amendment guarantees. The “knock and announce” rule that has been a virtual fortress in protecting that inalienable right that “a mans home is his castle” has been bombarded by this decision. The remedy of “exclusion” has been applied in cases where the failure to “knock and announce” before entering a dwelling resulted in the discovery of inculpatory evidence. In Wilson v. Arkansas, 514 U.S.927. 115 S. Ct.1914, the U.S. Supreme Court unanimously held that “the 4^th Amendment normally requires law enforcement officers to knock and announce their presence before entering a dwelling.” The Supremes had previously made it clear that the “common law ‘knock and announce’ principle forms a part of the reasonable- ness inquiry under the 4^th Amendment. Id., at 934, 115 S. Ct. 1914. As the majority in this case observed, because Wilson specifically declined to decide whether the exclusionary rule is appropriate for violation of the “knock and announce” rule that question was squarely before the Court in this case.

The exclusionary principle was first set forth in Weeks v. United States, 231 U.S. 383,34 S.Ct. 341. In Weeks, the Court noted that the framers of the constitution, in promulgating a Bill of Rights, sought to secure to the American people those safeguards that were the progeny of those in England to protect against unreasonable searches and seizures “such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers support of charges, real or imaginary, make against them. Such practices had also received sanction under warrants and seizures under the so-called writs of assistance, issued in the American colonies,” quoting from Boyd v. United States. 116 U.S. 616, 6 S.Ct. 524.

The Weeks court further took note of the fact that resistance to these practices had established the principle which was enacted into the fundamental law in the 4th Amendment, that a man’s house is his castle, and not to be invaded by any general authority to search and seize his goods and papers. The Court quoted Justice Cooley in his Constitutional Limitations, pp. 425, 426, wherein he stated: “The maxim that ‘every man’s house is his castle’ is made apart of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and always has been looked upon as of high value to the citizen.’”

In the Boyd case, Justice Bradley, ruling on the constitutionality of a forfeiture provision whereby the U.S. Attorney could compel the production of inculpatory documents belonging to or under the control of a defendant, cited an early English case, Entick v. Carrington, 19 How. St., Tr. 1029, where Lord Camden, C.J., rendered a decision considered one of the landmarks of English liberty. Justice Bradley said:

                  The principles laid down in this opinion affect the very essence of
                     Constitutional liberty and security. They .reach farther than
                     the concrete form of the case then before the Court, with its
                     adventitious circumstances; they apply to all invasions on the
                     part of the government and its employees of the sanctity of a man’s
                     home and the privacies of life. It is not the breaking of his doors
                     and the rummaging of his drawers that constitute the essence of the
                     offense,--it is the invasion of this sacred right which underlies and
                     constitutes the essence of Lord Camden’s judgment.

Facts: When police arrived at the defendant’s home with a search warrant they announced their presence, but waited only a short three to five seconds before entering by turning the knob of an unlocked front door. Once inside the police discovered a large quantity of drugs and a gun lodged between the cushion and armrest of a chair in which the defendant was sitting.

In the trial court the defendant moved to suppress all the inculpatory evidence seized and the court sustained the motion. The Michigan Court of Appeals reversed, and the Michigan Supreme Court denied leave to appeal. Upon conviction, the motion to suppress was renewed, again denied by the Appellate Court, and the Michigan Supreme Court again denied review. U.S. Supreme Court granted certiorari.

MAJORITY OPINION:

Justice Scalia, delivered the majority opinion of the Court, “with respect to Parts I. II and III, in which Roberts, C.J., and Kennedy, Thomas and Alito, J J., joined, and an opinion with respect to part IV, in which Roberts, C.J., and Thomas and Alito, J J., joined. Kennedy, J., filed a separate opinion concurring in part and concurring in the judgment. The two opinions concluded that a violation of the “knock and announce” rule does not automatically lead to suppression of the evidence seized in a search (U.S. v. Leon, 468 U.S. 897, 104 S. Ct. 3405) and that the exclusionary rule must be applicable only “where its deterrence benefits outweigh its ‘substantial social costs,’” citing Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014.

Tracing the historical development of the exclusionary rule as applied to search and seizure issues, the majority concluded that “an impermissible manner of entry does not necessarily trigger the exclusionary rule.”. Justice Scalia cited a number of prior Supreme Court decisions, including Wilson, Weeks and Boyd, in tracing the lineage of the “knock and announce” rule back to the 13^th century, and then relies on cases that held the exclusionary rule not to apply because the causal connection between the intrusion and the evidence seized was too attenuated, e.g., Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380; United States v. Cecc-olini, 435 U.S. 268, 274, 98 S. Ct. 1054.

Noting that while in this case there was no question that the “knock and announce” rule was violated . . . “even if the illegal entry could be characterized as a but-for cause of discovering what was inside, we have ‘never held that evidence is the fruit of the poisonous tree simply because it would not have come to light but for the illegal action of the police.’” [citing Segura, supra].

Then, in response to the defendant/respondent’s argument that without suppression there would be no deterrence, the majority opines that alternative civil remedies available to a party for intrusions can adequately deter unconstitutional police behavior.

Thus, the majority affirms the decision of the Michigan Court of Appeals reversing the lower court’s granting of defendant’s motion to suppress.

DISSENT:

The dissenting opinion, delivered by Justice Breyer, with Justices Stevens, Souter and Ginsburg joining, is a scathing reminder that the suppression of evidence seized from a home following an illegal entry is the strongest legal incentive to comply with the Constitution’s “knock and announce” requirement, and to deny application of the exclusionary rule is to virtually destroy that basic legal incentive necessary to the protection of one’s “castle.”

Following are a few of the minority’s comments (with some omissions in the quoted text):

: “Today’s opinion is . . . doubly troubling. It represents a significant departure from the Court’s precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution’s knock and announce protection.

“In Wilson . . . we wrote that ‘[a]n examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering. [514 U.S. 927, 931].

“ . . . Little doubt that the framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure.” Id., at 934, 115 S. Ct. 1914. And we held that the common-law ‘ knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment. Id., at 929, 115 S.Ct. 1914. Thus, ‘a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement. Id., at 936, 115 S. Ct. 1914 [Other citations omitted].

“. . . [In] Boyd v. United States, 116 U.S. 616, 6 S. Ct., 524 (1886) . . . decided 128 years ago, the Court wrote, in frequently quoted language, that the Fourth Amendment’s prohibitions apply ‘to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.’ Id., at 630, 6 S.Ct. 524 [Emphasis added.]

“. . . [In] Silverthorne v. United States, 251 U.S. 385, 40 S. Ct. 182 . . . [t]he Court held that the Government could not use information obtained during an illegal search to subpoena documents that they illegally viewed during the search. Writing for the Court, Justice Holmes noted that the exclusionary rule ‘does not mean that the facts {unlawfully} obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others . . .’ 251 U.S. at 392, 40 S. Ct. 182.

“ . . . Wolf v. Colorado, 338 U. S. 25, 69 S. Ct. 1359 . . .and Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 . . .[b]oth . . . considered whether Weeks’ exclusionary rule applies to the State. In Wolf, the Court held it did not. . . .In Mapp, the Court overruled Wolf. Experience it said, showed that alternative methods of enforcing the Fourth Amendment’s requirements had failed. See 367 U.S. at 651-653, 81 S. Ct. 1684.

“. . . [t]he driving legal purpose underlying the exclusionary rule, namely, the deterrence of unlawful government behavior, argues strongly for suppression. See Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct 1437. . . . Indeed, this Court in Mapp held that the exclusionary rule applies to the States in large part due to its belief that alternative state methods for enforcing the Fourth Amendment’s guarantees had proved ‘worthless and futile.’

“. . . To argue, as the majority does, that new remedies, such as 42 U.S.C Sec. 1983 actions or better trained police, make suppression unnecessary is to argue that Wolf, not Mapp is now the law.

[ The dissent goes on to further argue against cases the majority relied upon, noting that the purported remoteness or attenuation between the causal connection of the intrusion and the evidence seized is both strained and not supported in the Court’s prior decisions. Weeks, Silverthorne and Mapp are discussed at length, and their holdings, applying the exclusionary rule and requiring suppression of unlawfully obtained evidence, are viewed as essential to and in recognition of the Fourth Amendment promise. Ruling to the contrary, as the majority does in this case, “would make that promise a hollow one.”]

The information provided herein is not intended as legal advice, and should not be interpreted as such. The author of this site has and will make efforts to assure that the information he presents in the portions of the content he authors on this site is accurate. The viewer, however, is cautioned that because of the complexity of the material and ever-changing laws, regulations and court decisions, the author may have little or no control over the accuracy of the material and, irrespective of any control, Quilici makes no representation or guarantee as to the accuracy, quality, content, or legality of said information. The viewer, therefore, acknowledges that any use of this Website and reliance upon any materials shall be at your sole risk and that Quilici shall not be liable for any loss of data, lost profits or any other damages or losses resulting from such use. Users, therefore, are urged to independently verify the information on this site.

Quilici reserves the right to revise any or all of the materials on this Website and/or to modify any features, materials or specifics without notice. All matters relating to this Website shall be governed by the laws of the State of Illinois.