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Search case exposes high court discord

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The Supreme Court hears a police-search case, revealing disagreement among the justices.

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John Roberts
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WASHINGTON (CNN) -- A usually harmonious Supreme Court showed signs of public friction Thursday in a police-search case that could limit the use in court of evidence seized from criminal suspects.

The justices sparred in an appeal they are hearing for a second time. At issue is whether drug evidence obtained during a search of a home with a warrant should be thrown out at trial because officers failed to knock on the door and wait a "reasonable" amount of time before entering.

"Where do we draw the line?" over a proper remedy, asked Justice David Souter, and there was little agreement among his colleagues over how to ensure law enforcement officers do not routinely violate the constitutional protection against "unreasonable searches and seizures."

In many ways the arguments were aimed at one person, Justice Samuel Alito, whose vote could prove crucial. He was not yet on the bench when the case was first argued in January. His predecessor, Sandra Day O'Connor, heard the case but she retired before a decision was issued and, under court rules, her vote did not count. That apparently left a 4-4 tie, prompting the court to rehear the arguments.

Alito sharply questioned the lawyer for Booker Hudson, a Detroit man whose case has wound its way through various courts for nearly seven years.

Seven city police officers executed a search warrant in August 1998 on Hudson's home, finding crack cocaine on him and around the residence, as well as a gun.

Prosecutors said officers shouted "Police, search warrant," but readily admit that they did not knock on the door and that they waited only three to five seconds before entering and finding Hudson sitting on his couch. He was eventually convicted of drug possession.

"People have the right to answer the door in a dignified manner," Hudson's lawyer, David Moran, told the high court. The justices have ruled in the past that police should normally wait 15 to 20 seconds before bursting into a home.

But Chief Justice John Roberts spoke for several of his bench mates, expressing concern that dismissing incriminating evidence should always be the remedy for a failure to knock.

"An officer in Michigan knows that he can violate the knock-and-announce rule and not suffer any sanction," said Moran, criticizing what he said was the state's undue deference to police.

"That's not true," said Roberts, who said there are civil penalties available, such as a lawsuit or demotion of an officer who consistently ignores department policy on searches.

Several justices also questioned whether the police misconduct had anything to do with the discovery of evidence, since it was all but inevitable the drugs would be found.

Justice Antonin Scalia said the government has a point by claiming "the punishment should not be to let the criminal go."

Other justices were just as tough on the state's attorney, Timothy Baughman.

Souter repeatedly asked why authorities did not simply invoke the "exclusionary rule," which would have allowed police to enter the home without knocking simply by showing they feared the suspect might react violently or try to destroy the drug evidence.

He later noted past high-court rulings have affirmed an expectation of privacy against police intrusion. "There is enough respect for a person's home," Souter said. "The police should not barge in like an invading army" without good cause, and without a strong sanction if they do not follow the rules. "That's the whole point of knock-and-announce."

Kennedy said he agreed with Souter's thinking, but otherwise seemed torn over the opposing arguments. His vote, too, could prove critical.

Search and seizure

The high court has already heard two cases on search and seizure. In March, it ruled police were wrong to search a Georgia man's home over his objections, even though his estranged wife gave her consent.

Another pending search case deals with what "emergency" circumstances exempt police who enter homes without search warrants. Utah officers responding to complaints about a loud 3 a.m. party saw through a residential window that four adults were trying to restrain a juvenile who had punched one of the adults in the face. At issue here is whether police could rely on their "subjective motivation" to enter the home under the established "emergency aid exception."

A ruling on that and the Michigan case is due next month.

The court has shown a remarkable amount of unanimity and collegiality since Chief Justice John Roberts took over in September. A higher than usual number of court opinions so far have been unanimous.

But as the justices try to finish their work for the term in the next few weeks, several contentious issues, such as the death penalty and the treatment of terror suspects, remain to be resolved. Oral arguments in those cases showed strong disagreement among the nine members.

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