The Fourth Amendment Comes Out At Night, Minnesota Supreme Court Holds:
Today the Minnesota Supreme Court held in State v. Jackson that the police violate the Fourth Amendment if they execute a search warrant at night without getting special permission based on a request with specific facts to execute the search at night. (See also the related case handed down today, State v. Jordan.) I don't think I've ever seen anything quite like this. [See update at the end of the post; it turns out there is at least some authority in this direction, even if no court has taken it this far.] The hour of execution of a search is generally left to statute, and the few constitutional cases on this issue involve warrants that specify on their face that they must be executed in the day but are instead executed at night. In this case, by contrast, the warrant specifically authorized a search at night. After the Supreme Court's decision in United States v. Grubbs, the Court's approach strikes me as pretty far out of step with Fourth Amendment caselaw.
The basic reasoning of the case is that there is a "period of nighttime repose" at which time there are special interests to be protected inside the home that a normal search warrant does not address:
More broadly, I find it hard to believe that there is some sort of free floating "period of nighttime repose" doctrine out there that the Minnesota court has discovered that makes searches problematic based on a test the Court seems unable to define. As much fun as it is to pledge allegiance to the Framers while inventing brand-new doctrines of U.S. Constitutional law, I find it hard to believe that the U.S. Supreme Court would go along with this new approach. The Minnesota court was of course free to construe the Minnesota warrant statute to require this result, as it did here. But going out on a limb and adding the federal constitutional holding was pretty clearly unwarranted (pun intended).
Anyway, there's a possible "adequate and independent state ground" (AISG) problem that might interfere with Supreme Court review: The Minnesota court also based its ruling on the Minnesota warrant statute, and although it looks like it's a dependent claim (the arguments for the two are essentially identical), that's a possible reason the Supreme Court might not take the case. If the Supreme Court can get its hands on the Fourth Amendment part, however, I would expect them to be interested in the case.
Thanks to Ted Sampsell-Jones for the link.
:UPDATE: Further research and some helpful comments indicate that there is authority suggesting that the timing of the search is relevant to its reasonableness; there is also a dissent by Thurgood Marshall (joined by Brennan and Douglas) suggesting in dicta that a rule something like what the Minnesota court creates would be a good idea. On the other hand, the Minnesota court seems to be the first to haven taken the ball and run with it; it's also in direct tension with what federal courts have done, and in particular with Fourth Circuit's decision in United States v. Rizzi, 434 F.3d 669 (4th Cir. 2006).
The basic reasoning of the case is that there is a "period of nighttime repose" at which time there are special interests to be protected inside the home that a normal search warrant does not address:
We believe that at certain times it will be readily apparent what is protected during this period of nighttime repose. For example, if the police search an unlit home at 3 a.m. without proper nighttime authorization, they run considerable risk of violating the occupants’ interest in being free from intrusion during a nighttime period of repose. But if the police search a home at 8:30 p.m. on the summer solstice when the doors are open and a party is underway at a home, they are much less likely to run the risk of seriously violating the occupants’ interest in being free from such intrusion. These examples illustrate a key aspect that we recognize and acknowledge about the interest we have articulated, especially at its beginning and end. This definition is a bit nebulous and necessarily encompasses what Justice Robert Jackson might refer to as a “zone of twilight,” within which the right to protection is less certain and will depend “on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).The Court concludes that in this case, the search warrant was executed during the aforementioned "period of nighttime repose":
Having previously defined the interests that the limitation on nighttime searches is designed to protect, we now examine the facts of this case to determine if Jackson’s constitutional rights were violated. The police entered Jackson’s home at 9:25 p.m. on December 11 when it would have been dark for several hours. The record does not indicate that the police had any specific information about what was going on in the home before entering it at nighttime. Further, . . . we conclude that the nighttime entry into Jackson’s home cannot be rendered constitutionally sound by the fact that the police happened to find Jackson and her children awake, fully clothed, and sitting at the kitchen table upon entering the home. Therefore, we conclude that the police violated Jackson’s right to be free from unreasonable searches and seizures guaranteed by the United States Constitution when, without information indicating that Jackson had not yet entered a period of nighttime repose, they entered her home at 9:25 p.m. in the wintertime—December 11—with a search warrant that invalidly authorized a nighttime entry. In reaching this conclusion we need not decide the exact time when Jackson’s constitutionally protected period of nighttime repose began and ended. Rather, we need only conclude that the search of her home fell within the protected time period.I find this reasoning extremely weak. I don't think I've ever come across cases suggesting that there is a special constitutional rule for nighttime searches beyond probable cause and particularity. The federal circuit court cases the Court mentions dealt with daytime warrrants executed at night; the Fourth Amendment defect was that the warrants by their terms prohibited the nighttime entry. This case is different, as the warrant itself authorized nighttime entry. Further, it's interesting to note by comparison that the Federal Rule 41 that governs search warrants defines the "day time" for executing search warrants as 6:00 am to 10:00 pm, see Rule 41(a)(2)(B). In the federal system, then, this warrant would have been deemed executed in the day time rather than at night. (Minnesota has a different definition; the statute defines the daytime as being from 7am to 8pm.).
More broadly, I find it hard to believe that there is some sort of free floating "period of nighttime repose" doctrine out there that the Minnesota court has discovered that makes searches problematic based on a test the Court seems unable to define. As much fun as it is to pledge allegiance to the Framers while inventing brand-new doctrines of U.S. Constitutional law, I find it hard to believe that the U.S. Supreme Court would go along with this new approach. The Minnesota court was of course free to construe the Minnesota warrant statute to require this result, as it did here. But going out on a limb and adding the federal constitutional holding was pretty clearly unwarranted (pun intended).
Anyway, there's a possible "adequate and independent state ground" (AISG) problem that might interfere with Supreme Court review: The Minnesota court also based its ruling on the Minnesota warrant statute, and although it looks like it's a dependent claim (the arguments for the two are essentially identical), that's a possible reason the Supreme Court might not take the case. If the Supreme Court can get its hands on the Fourth Amendment part, however, I would expect them to be interested in the case.
Thanks to Ted Sampsell-Jones for the link.
:UPDATE: Further research and some helpful comments indicate that there is authority suggesting that the timing of the search is relevant to its reasonableness; there is also a dissent by Thurgood Marshall (joined by Brennan and Douglas) suggesting in dicta that a rule something like what the Minnesota court creates would be a good idea. On the other hand, the Minnesota court seems to be the first to haven taken the ball and run with it; it's also in direct tension with what federal courts have done, and in particular with Fourth Circuit's decision in United States v. Rizzi, 434 F.3d 669 (4th Cir. 2006).
Well, Orin, you seem to accept judicial creativity when it comes to inventing new exceptions to the fourth amendment warrant requirement--per your petition for certiorari on the "consent once removed" doctrine about which you posted earlier today.
I'd say the Minnesota court's reading of the fourth amendment doesn't involve anything like the creativity required to uphold warrantless searches by "consent once removed." Under that imaginative doctrine, which, according to your petition, first emerged only two decades ago, consent achieved by the deception of an undercover police agent magically becomes consent for the entire police department to enter the home. I don't see anything in the language of the fourth amendment that endorses this gaping exception to the warrant requirement--unless it's enough to say, hey, it's reasonable, in which case it seems to me it would be equally okay to say of a nighttime search not specifically justified in the warrant application, hey, it's not reasonable.
At least the proposition that one's repose in one's home ought not to be disturbed at nighttime unless on a special showing of need made within the warrant application serves the fourth amendment purpose of preserving the sanctity of the home against unnecessarily intrusive searches and seizures. And as a side benefit it will cut into those nasty confrontations that sometimes follow nighttime police raids on the home.
In this particular case, however, the occupants were clearly up and about, so I agree that there was no violation of their right to be secure against unreasonable searches.
A very brief glimpse for the root of the "special constitutional rule for nighttime searches beyond probable cause and particularity," as Prof. Kerr writes, led me to Jones v. United States, 357 U.S. 493, 498.
That one sentence on nighttime intrusion has been used in various circuits to place greater scrutiny on nighttime searches. See e.g. United States v. Callwood, 66 F.3d 1110 (10th Cir. 1995), Fludd v. United States Secret Service, 771 F.2d 549 (D.C. Cir. 1985).
I don't find the holding absurd on policy grounds, for reasons set forth above; who should be making that policy, in MN and in the U.S., is another issue.
Orin already pointed out that the state court based its decision on its construction of a state statute as well as on the fourth amendment. Thus an adequate state ground for the decision already exists. There is no need for the state court to reach the state constitutional question.
Aside from the repose issue, there also seems to be a safety argument. When are searches most likely to lead in a death (either of the resident who is shot after pulling a gun, or of an officer shot by the gun)? I'd lay money on nighttime searches. They should be barred on that basis alone.
I guess, unlike Orin, I'm not all that troubled by Minnesota being "out of step" with 4th Amendment law if it means that Minnesota residents are subjected to fewer ridiculous middle of the night searches. I'm glad that a state offers its citizens more protections than does the federal government.
I also think the Supreme Court should not take cases if it appears likely the state court decided the case on state-law grounds even if it also went ahead and decided the matter on federal constitutional questions. It would be helpful if when it declined cases on such grounds it signalled that it was doing so, e.g. by dismissing for want of probable jurisdiction (possibly with a one-line statement referring to a probable independent state-law basis) rather than simply denying cert.
I think that in cases where there is a mixed state and federal basis, the Supreme Court decides the federal question, and the state court then clarifies the state-law grounds, the Supreme Court is providing an advisory opinion in violation of Article III. It should avoid doing so in ways that signal (if not definitively deciding) that it regards the lower-court case as not definitely deciding the federal question.
US Constitutional interpretation is largely guided by English Common Law which can be used a guide with respect to what constitutes a 'reasonable' search. For instance, the 'knock and announce' rule that the court eviscerated in Hudson dates back to 1603.
Far from being 'brand-new', the rights are deeply ingrained in our common law heritage and to discard them is to read that heritage out of the constitution.
Of course, the 'knock and announce' rule was not challenged in Hudson; the remedy for violations of the knock and announce rule was, and what the court actually did was hold that the exclusionary rule was inapplicable. And of course the exclusionary rule doesn't go back to 1603, or "English Common Law" at all. It wasn't a centuries-old rule, but a 45-year old rule -- or, by the most generous counting, a 92-year old rule.
So your snark is not only misplaced, but outright wrong. The court in Hudson did not "eviscerate" anything; it applied "our common law heritage."
No, think general warrants, which were executed at night.
But as much as I agree that warrants should be served, as much as practical, while people are awake, I am not sure that the Fourth Amendment imposes such a requirement.
Which is why the court didn't say that. They said that if you want to serve a warrant during the night, you must plead the facts with particularity. That serving at night “is necessary to prevent the loss, destruction, or removal of the objects of the search or to protect the searchers or the public.”
Minnesota has a different definition; the statute defines the daytime as being from 7am to 8pm.
Have you been to Minnesota? On December 11, in Itasca county, the sun set at 4:22 pm.
As much fun as it is to pledge allegiance to the Framers while inventing brand-new doctrines of U.S. Constitutional law
Orin, the court cites, among other things, Tracey Maclin's article at 77 BU L. Rev. 925, in which he tells us that by the 1780s, all the states but Maryland had forbidden nighttime searches and the First Congress passed a law requiring all searches to take place during the day.
This is the same well from which the knock-and-announce rule comes, which the court has recognized (but only did so in 1995).
I mean, if the court, in Wilson v. Arkansas said, of the 4th, "In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing" and the traditional protection at the time of the framing was to severely limit night-time searches, why would it be surprising that the police must, like they do for no-knock warrants, come up with a good reason for a night-time search?
That's fair up to a point. In his Goodling dissent, Justice Marshall, joined by Justices Brennan and Douglas, expressed the view in dicta that something akin to the State v. Jackson approach was a decent argument that could be made someday in a future case. On the other hand, how does that suggest that the doctrine is correct or constitutionally grounded? Marshall, Brennan, and Douglas thought a lot of things.
1 LEGAL PAPERS OF JOHN ADAMS, 137 (quoting Adams’s notes of his argument in the 1774 case King v. Stewart).
I was answering your first complaint, that you'd never seen anything like this and that it was a totally free-floating Constitutional principle that the Minnesota courts "discovered." By reading their case, and glancing at the things they cited, I've discovered that far from being a free-floating constitutional principle, it's at least as historically grounded as the no-knock rule (Wilson v. Arkansas points out that "and a few States had enacted statutes specifically embracing the common law view that the breaking of the door of a dwelling was permitted once admittance was refused..." contrast that with the fact that all but one state had passed a law banning nighttime searches and the passage of a law in the First Congress doing essentially the same.)
But, to answer your NEW question, here's the reasoning:
1. Wilson says we interpret the 4th based on what were the traditional protections in place at the founding. 514 US 927, 931.
2. At the founding, all but one state had passed laws banning nighttime searches and the First Congress did too. In fact, according to Maclin's article at footnote 8, "[d]uring the Framers' era, "[s]econd to the requirement for specificity in warrants, the hidden unconstitutionality of nocturnal searches was the most certain feature of the [fourth] amendment's original understanding. In the 1780's, American law rejected nighttime searches even more than general ones." William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning, 602-1791, at 1510 (1990) (unpublished Ph.D. dissertation, Claremont Graduate School) (available from UMI Dissertation Services, 300 N. Zeeb Road, Ann Arbor, Michigan).
3. This is a traditional protection.
4. It should be held to the same requirement as knock and announce.
So, Orin, how is this NOT grounded in the same Constitutional soil as the knock-and-announce rule?
My initial comment stated that I had never heard of anything like this; I appreciated you pointing me to the Marshall dissent. I thank you for it.
As for the differences between this and the knock and announce cases, a few responses:
(a)K&A was an English common law rule going back at least to 1603, and it was well established and recognized by all the common law treatise writers. As I understand it, there was no nighttime search warrant rule or principle known in the English common law at all.
(b) Re the Cuddihy characterization, as quoted in Maclin's footnote, I'll have to check my copy of Cuddihy to see the context.
(c) I think it's quite plausible to argue that time of execution is relevant to reasonableness, just as K&A was relevant to reasonableness in Wilson. I'm with you there. But even accepting this, why is a search warrant that explicitly authorizes a search at night and is executed at 9:25pm constitutionally unreasonable? That counts as daytime under federal law. Where is the court getting this "nighttime repose" concept, or the concept that the Minnesota? The court appears to be deriving this from first principles of nightness, not recognizing common law authority. Why is 9:25 too late, and how much of a showing is required to execute a warrant at night, and where is the court getting any of this? Was thaere a principle of nighttime repose at common law? If there was, I'm looking forward to learning about it, but I haven't heard of it before.
(d) If you're going to analogize to Wilson v. Arkansas to say it's part of reasonableness, aren't you also stuck analogizing to Hudson v. Michigan and saying there's no suppression remedy even if it is?
United States v. Rizzi, 434 F.3d 669, 674 (4th Cir.2006), offers the most comprehensive discussion:See also United States v. Dickerson, (10th Cir, 1999), search executed around 10pm: And United States v Keene 915 F2d 1164 (8th Cir., 1990), involving a search executed at 8:20pm:
But I agree with the other commenters that the outcome isn't as novel as Orin thinks it is. There are several cases where the Supreme Court has imposed extra requirements on the state (beyond the basic requirements of a warrant and probable cause) when the manner of the search or seizure is especially intrusive or offensive. The knock and announce rule is one such example. Another two examples that come to mind: Tennessee v. Garner (imposing extra requirements on police officers before they "seize" suspects using deadly force), and Winston v. Lee (holding that the state must show a compelling need, among other things, before it can force a suspect to undergo dangerous surgery to remove a bullet lodged in his chest).
The Minnesota Supreme Court seems to think that nighttime searches fit in this category of searches or seizures that require something beyond probable cause and a warrant before they can be considered "reasonable" within the meaning of the 4th Amendment. And the court does a decent job of backing up this requirement with historical evidence of widespread aversion to nighttime searches.
The Minnesota Supreme Court might be wrong (especially if you're inclined to believe that the Constitution means what The Nine say it means), but the court isn't coming completely out of left field here, as Orin suggests.
(a) while nighttime restrictions on warrants may have arisen later than K&A, they were well established by the time of founding.
(b) I just ordered a copy of Cuddihy - everyone should have a 1,700 page unpublished dissertation on the Fourth Amendment on their bookshelf. And at $41 it's a steal!
(c) Seems to me that a warrant for a nighttime search should be held to at least the same standard as a no-knock warrant - that it show a reason why nighttime search is required. Is the evidence going to be destroyed, is there a danger to the officers. The state concedes the warrant was defective in this regard. (As to whether the federal rule that 10pm is night - I'd remind you that the sun had been down for 5 hours when the police entered her house. It gets dark in northern Minnesota EARLY.)
The court appears to be deriving this from first principles of nightness, not recognizing common law authority. Why is 9:25 too late, and how much of a showing is required to execute a warrant at night, and where is the court getting any of this?
This post is getting long, so for the first part, I'll simply direct you to the section of the ruling entitled "Historic Aversion to Nighttime Searches" where they cite Maclin and Cuddihy and Lassan and John Adams and Davies and Blackstone. For the second part, I'd remind you that 5 hours after the sun sets would pretty much fit the bill in most people's minds. As for the third part, well, in the spirit of holding the snippiness to the absolute minimum, I'd direct you to read the decision again.
(d) Hudson seems quite distinguishable. The MN court did so in their opinion. (Although not as fully as they could have.) Look, for example, at the calculus that Scalia lays out in section III.B of his decision in Hudson. It seems that many of the dangers of suppressing K&A violations disappear when we're talking about nighttime warrants. First, what would have been different if the cops in Hudson had properly executed their warrant? 10 additional seconds. In this case? They would have executed the warrant the next day, during the daylight. So, there wouldn't be the flood of defendants that Scalia warned of. Regardless of how early it gets dark in Minnesota, it's much harder to argue that the police broke down your door at night instead of the day than it is to argue that they waited only 5 seconds instead of the requisite 15. Second, the danger increases if suppression is had for K&A violations - police wait an extra 30 seconds, allowing the perp to get their bearings. By contrast, if the police are incented to serve their warrants during the day, they're actually safer. Plus, upholding nighttime restrictions vindicates an additional interest not at stake in Hudson, that of the nighttime repose (if it, in fact, exists).
So if you are in northern Alaska they can not serve warrants at all on the winter solstice and any time they feel like it in the summer solstice?
Even in Minnesota, they can serve warrants at night.
Every time some wacky 4th amendment decision gets handed down somewhere, I again question the wisdom of the exclusionary rule. It just seems like swatting a fly with a really expensive 20-pound hammer. Because the cops entered the home at 9:30pm, while the occupants were sitting at the dinner table, throw out the evidence and let a guilty party walk away scot free? I doubt the citizens of Minnesota really want to pay that kind of price for the "right" to have their house ransacked while the sun is shining instead of the moon. Should 3rd shift workers and self-proclaimed vampires get s rule prohibiting searches during daylight?
I think it's high time the exclusionary rule (as regarding most 4th amendment violations) went the way of the dodo, and things like this were remedied through 1983 actions.
The point of the exclusionary rule isn't to protect guilty parties like this, it's to protect the innocent people who'll also get searched unreasonably, since the police won't actually know the party is guilty before doing the search.
I don't see how long the sun has been down is relevant to an allegedly Constitutional right based on the idea that people might be quietly sleeping. Can we argue that Alaska in the wintertime has only two hours where normal searches can take place? That in the summer, the police are ok to go at 2am just because the sun is up? Even if you accept the idea proposed by the court (and I'm very amenable to the idea that the police shouldn't go waking people up in the middle of the night) 9:30 pm is not such a time.
If they're executing a search warrant, then they already have specific facts giving rise to probable cause to believe there is either contraband or evidence of a crime inside the residence. So in the overwhelming majority of searches, we're not talking about innocent people here. Of course, a criminal may have stashed drugs or a bloody knife in somebody's house unbeknownst to the occupants, who now must endure an intrusion into their home, and if that's the case the police should use their discretion to be a little more considerate when possible. I think that local police departments and state legislatures can work together to balance the interests at stake. Applying the extraordinary remedy of excluding evidence is totally unnecessary.
cjwynes;
Are you also proposing laws that would actually make 1983 actions viable? As it stands now, its almost impossible to be successful on a 1983 action unless the police were so unreasonable that a responsible police officer wouldn't conceive of doing the action. If you do away with the exclusionary rule, you do away with the incentive for officers to obey the law. Then, once violations become common-place, they will be what responsible police officers do.
This is off-topic, but can you provide cites to the consent once removed cases.
The search was conducted on December 11, 2006 (apparently) in Itasca County. I went to this site to determine the time of sunset for December 11, 2006 in Grand Rapids (the county seat of Itasca County). According to it, sunset is at 4:24pm and the end of civil twilight is 4:59.
It doesn't seem outlandish to me -- as a matter of text, or history, or doctrine -- to say that a search at 3 AM is less reasonable than a search at 3 PM, and that the difference is one with some constitutional implications.
Admittedly, I'm not sure how to turn that intuition into any sort of a workable doctrine. I'm not sure whether the exclusionary rule should apply (though, as Greg says, there are certainly strong reasons for distinguishing Hudson). And at bottom, I'm not sure the outcome is right.
But I don't think the idea or the court's reasoning is as weak as Orin suggested.
Ted
I'm not attacking ALL rules that may require evidence suppression. For instance, I would never suggest that involuntary confessions be allowed into evidence, and that prohibition has a long pedigree dating back to before the founding of our country. The exclusionary rule is an extraordinary remedy with enormous social costs, yet it is rooted in no such tradition, and it has as little basis in our constitution as does the idea of saying a list of magic words to satisfy Miranda.
Besides, where does this assumption come from that police are just chomping at the bit to trample all over the rights of innocent citizens and would get away with it if it weren't for the exclusionary rule? They don't have the exclusionary rule in Europe, and I'm not aware of Sweden having become a police state.
2. Minnesota may be one of the first states to decide a nighttime search is unconstitutional under the state constitution, but it is not alone in being concerned about it. There are scores of cases, at least, in Arkansas. Ark. R. Crim. Proc. 13.2(c):
Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
3. For a good backgrounder on the issue, try this student article: Morris, Fouse V. State: The Arkansas Nighttime Search Rule - Helping Make Arkansas the Country's Number One Producer of Methamphetamine, 53 Ark. L. Rev. 965 (2000).
It's not interference for a state court to ground its decision on its state constitution; it is faithfulness to the dual-sovereignty relationship between the federal government and the several states.
It doesn't look like the court in this case resorted to the Minnesota constitution, though, by "mak[ing] clear by a plain statement" that the decision was Minnesota constitutional law.
"[W]hen . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached." Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983).
Of course they aren't. They are merely attempting to catch as many criminals as possible and often chose to do so in a way that imposes significant costs on innocent civilians as a byproduct. Drug/DUI checkpoints are a prime example: the police are not 'chomping at the bit' to illegally seize motorists, they are attempting to catch criminals but inadvertently violating civil rights.
One need not imply bad intentions on the part of police in order to condemn some of their more zealous techniques.
Hudson laid out alternatives, but as the dissent pointed out, despite the examples of knock and announce violations being legion, no one could find a single example of any of the alternatives Scalia presented having been used.
So I think it's a poor idea to start claiming we should rid ourselves of the exclusionary rule without recognizing that we need some method of protecting our civil rights from the state.
Also, I find it fascinating that you're making a comparative law argument at the same time as your making a originalism argument ("The exclusionary rule is ... rooted in no such tradition, and it has .. little basis in our constitution ..."). Not much consistency to your argument there.
All that Richards really stands for is the proposition that everyone has to go through a kabuki dance where they recite a few boilerplate facts related to drugs and pretend that those facts are "specific," instead of just saying "drugs." In the end, see how often a judge is going to deny an application for a no-knock warrant in a drug case.
(To quote Richards: "In order to justify a "no knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Can you imagine "particular circumstances" involving drugs where they won't have such a "reasonable suspicion"? Remember, it doesn't even have to be right; it just has to be reasonable.)