The Supreme Court on Wednesday ordered a second argument in the case of Hudson v. Michigan (docket 04-1360). The case originally was argued on January 9, but the Court appeared to be having difficulty deciding it with an eight-member bench. The case was argued before Justice Sandra Day O’Connor retired but before Justice Samuel A. Alito, Jr., replaced her in February.

The key question in the case is whether, if police fail to knock and announce their presence when they seek to carry out a search warrant at a home, the remedy is to exclude the evidence that results from the search. The argument against such an exclusionary rule is that, if police would have found criminal evidence anyway, it should be allowed as the result of “inevitable discovery.”

No date has been set for the re-argument, but the preliminary indication is that it would come during the current Term, rather than be carried over to the new Term opening in October. A tentative date is Thursday, May 11 — two weeks after the Court’s currently planned conclusion of oral argument on April 26.

This is the third case that the Court has re-argued this Term, as a consequence of the change in its membership. The others are a public employee free speech case, Garcetti v. Ceballos (04-473), which was re-argued March 21, and a death penalty case, Kansas v. Marsh (04-1170), which will be heard again next Tuesday.

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