How the 5-4 Supreme Court Expanded Police No-Knock Raids Killing Breonna Taylor

Breonna Taylor was shot and killed by police in a no knock raid, a likely Constitutional violation. The Supreme Court had an opportunity to protect the Constitution 13 years ago. But instead, a 5-4 Court found a violation but then refused to do anything about it. The loss of Breonna Taylor is a direct result.


Police obtained a warrant to search the home of Booker Hudson for drugs and weapons. They waited at the door three to five seconds, opened the unlocked door, and entered the home. They found both drugs and weapons. They used the findings to charge Hudson with related crimes. Hudson was convicted.

Booker Hudson complained that the short wait before entering the premises violated his Fourth Amendment rights. Armed with a recent unanimous Supreme Court case concluding that the knock and announce rule was flexible, but that a “reasonable wait time” before breaking in to search for drugs would be 15 to 20 seconds, Hudson appealed his case to the Supreme Court.

The Fourth Amendment guarantees rights of people to be free from unreasonable searches and seizures, a rule that goes back to before the United States formed. Normally, when a court finds a search to be unreasonable, evidence obtained by the search is suppressed under the Exclusionary Rule. Such evidence cannot be used against the person in court.

Since the Court had recently concluded that 15 to 20 seconds was “reasonable” and that such a “call [wa]s a close one,” surely cutting that time down to 3 to 5 seconds would fall on the unreasonable side of the line. And the Court found that it did. But then something really strange happened.


A 5-4 Supreme Court majority opinion written by Justice Antonin Scalia decided that the Constitutional violation simply did not matter. The arrest was preceded by a proper warrant. As per the warrant, they were looking for drugs and guns, and found them. If the police had not violated the knock and announce rule, the guns and drugs would have been found anyway. Thus, no suppression was necessary. (Article continues below)

See also Constitutional Rights Expire: Four Justices Agree.


Justice Antonin Scalia was able to make such a ruling based on a little word puzzle. In earlier knock and announce cases, a constitutional violation was sufficient to require the exclusion of evidence. In this case, a constitutional violation became necessary to consider excluding evidence. By converting the standard from sufficient to necessary, the Supreme Court now could choose not to uphold a constitutional right whenever a majority feels like it. To simplify:

Before Scalia, violation sufficient to exclude evidence, or violation = sufficient. All violations are sufficient to invoke Constitution.
After Scalia, violation necessary to exclude evidence, or violation > necessary. Not all violations invoke the Constitution.


Often it is said that judges should not “legislate from the bench.” The power of a court is passive. A court’s power must be invoked by a person who files a lawsuit and has a personal stake in the outcome. When the Supreme Court’s power is invoked, it is supposed to deal with the specific facts presented and decide what is right in the particular case.

In the Hudson case, Antonin Scalia did exactly the opposite. He plainly knew that there was a Constitutional violation in the case before him. Despite that, he went into a lengthy dissertation about police practices in general. He said that today’s police are better trained and more “professional” than in the past, that there are private rights to sue police agencies, and that other safeguards exist making violations in general less frequent than in the past.

Justice Stephen Breyer who wrote the dissent noted that as of 1949, the knock and announce rule prohibiting no knock raids did not apply to state police as per case Wolf v. Colorado. Then in 1961, the Court overturned that rule and applied knock and announce rule as per case Mapp v. Ohio, because “[e]xperience … showed that alternative methods of enforcing the Fourth Amendment’s requirements had failed.” The Mapp case directly overturned the Wolf case.

By failing to permit a remedy for Booker Hudson, Antonin Scalia effectively reverted the law back to the Wolf case. Flip. Flop. Rest in peace, Breonna Taylor.