By Bill Mears
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WASHINGTON (CNN) -- A split Supreme Court ruled Thursday that drug evidence seized in a home search can be used against a suspect even though police failed to knock on the door and wait a "reasonable" amount of time before entering.
The 5-4 decision continues a string of rulings since the September 11, 2001 terrorist attacks that in general give law enforcement greater discretion to carry out search-and-seizure warrants.
President Bush's nominees to the high court, Chief Justice John Roberts and Justice Samuel Alito, notably sided with the government.
Writing for the majority, Justice Antonin Scalia said disallowing evidence from every "knock-and-announce violation" by officers would lead to the "grave adverse consequence" of a flood of appeals by accused criminals seeking dismissal of their cases. (Opinion -- pdf)
He was joined by Roberts and his fellow conservatives Anthony Kennedy, Clarence Thomas and Alito.
Scalia added that police might put their lives in danger if they were uncertain when and if entry was legally permissible. "If the consequences of running afoul of the law were so massive, officers would be inclined to wait longer than the law requires -- producing inevitable violence against officers in some cases, and the destruction of evidence in many others."
The justices sparred in an appeal they are hearing for a second time, and reflected the deep divisions that remain on a court divided along ideological lines. There was little unanimity over how to ensure law enforcement officers do not routinely violate the constitutional protection against "unreasonable searches-and-seizures."
The appeal involves Booker Hudson, a Detroit, Michigan, 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 had told the high court. The justices have ruled in the past that police should announce their presence, then normally wait 15 to 20 seconds before bursting into a home.
Justice Stephen Breyer wrote a lengthy dissent, saying, "Our Fourth Amendment traditions place a high value upon protecting privacy in the home." A centerpiece of those protections, he said, includes the "exclusionary rule," under which evidence seized in illegal searches should be suppressed at trial.
"It weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection," concluded Breyer, who said he fears police will now feel free to routinely violate the knocking and waiting requirements, knowing they might not be punished for it.
Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg supported Breyer's position.
The majority-conservative court has been generally supportive of police discretion since the 9/11 attacks, including disputes over home and car searches, suspect interrogations, and sobriety and border checkpoints. Several of the more liberal justices have disagreed sharply in many of those cases.
The high court has already ruled on two other search-and-seizure cases this term. In March, it said police were wrong to search a Georgia man's home over his objections, even though his estranged wife gave her consent. And last month, police in Utah investigating reports of a loud party were found to be justified entering a home under "emergency circumstances" to break up a fight, even though they did not have a search warrant to enter.
Alito turned out to be the deciding vote in the Hudson case. He was not yet on the bench when the case was first argued in January. His predecessor, Sandra Day O'Connor, heard the case and appeared to support the defendant.
But she retired before a decision was issued and, under court rules, her vote did not count. That left a 4-4 tie, prompting the court to rehear the arguments.
Writing for the majority, Justice Antonin Scalia called the failure to knock a "preliminary misstep."