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Departments : Point of Law

Knock Notice After Hudson

Exclusion is gone, but potential liability remains.

August 01, 2006  |  by Devallis Rutledge - Also by this author

Never mind the headlines and the editorials proclaiming that the Supreme Court did away with the knock-and-announce requirement for execution of search warrants in the recent case of Hudson v. Michigan. The court did no such thing. What the opinion did away with was the Fourth Amendment exclusionary rule for knock-notice violations.

It's still a violation of the Fourth Amendment not to comply with knock-notice in those cases where compliance is not excused by exigent circumstances. It's just that an occupant of the premises can no longer invoke the federal exclusionary rule to suppress evidence taken under the warrant, just because officers didn't knock and announce or wait long enough before entering.

Hudson is the fifth significant knock-notice decision from the High Court in the last 11 years, beginning with Wilson v. Arkansas.

Wilson v. Arkansas

Before 1995, it was assumed by most state and federal courts that a forcible entry to serve a search warrant, without a prior statement of identity and purpose and a demand for admittance, would violate the Fourth Amendment. In Wilson, the Supreme Court confirmed that assumption: "The reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering. We hold that in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment."

In a footnote, the court declined to decide whether evidence should be suppressed because of police officers' failure to comply with knock-notice rules. However, the court did say that no-knock entry would be reasonable where immediate entry was necessary to prevent escape, reduce safety risks, or prevent the destruction of the evidence being sought.

As a result of the ruling in Wilson, all state and federal law enforcement agencies that did not already have them were compelled to adopt and follow policies requiring officers to knock or give notice of their presence, identify themselves, state their purpose and authority, and wait a reasonable time to be admitted before breaking in.

A typical announcement might take this form: [Knock, knock] "Police with a search warrant! Open up!" This announcement and demand would typically be repeated several times while waiting for the door to open. Depending on such factors as the nature of the evidence and suspected crime, size of the residence, time of day, and indications of activity within, officers might wait from 15 seconds to several minutes before breaking a door or window to get inside.

Richards v. Wisconsin

In the case following Wilson, the Supreme Court held that knock-notice could not be excused for an entire category of crimes, whether drug sales, robbery, murder, or any other crime. Each case would have to be decided based on its own peculiar facts.

But the court did say in Richards that the Fourth Amendment would permit magistrates to issue no-knock warrants if the affidavit in support of the warrant established reasonable suspicion (not probable cause) to believe that knocking and announcing would endanger officers, allow escape, or permit the destruction of evidence. And further, a magistrate's refusal to authorize a no-knock entry would not preclude officers from making an independent assessment of dangers at the time of entry that would justify dispensing with knock-notice.

U.S. v. Ramirez

Next came a fairly straightforward decision overturning the Ninth Circuit Court of Appeals, which had held that a forcible entry must be justified with greater exigencies if it results in property damage. The Ninth Circuit had ordered suppression of evidence where officers seeking an armed and dangerous prison escapee broke a window during entry into a place where he was believed to reside.

Unanimously reversing the Ninth Circuit, the U.S. Supreme Court said whether or not officers could be excused from knocking and announcing "depends in no way on whether police must destroy property in order to enter."

Once again, the court noted in a footnote that there was no need to decide whether evidence should be suppressed for knock-notice violations.

U.S. v. Banks

Again unanimously reversing the Ninth Circuit, the U.S. Supreme Court said that waiting 15 to 20 seconds before forcible entry to serve a narcotics warrant in mid-afternoon was a reasonable delay. The court pointed out that drugs are easily destructible, and 15 to 20 seconds might be plenty of time for a suspect to run to the toilet to flush the drugs while officers waited patiently outside his door, demanding admittance.

In its order suppressing Banks' drugs, the Ninth Circuit had created a list of eight factors for officers to consider before forcing entry, and another list of four categories of entries for courts to examine. The Supreme Court openly ridiculed this unworkable "scheme" of "pigeonholes" for analyzing knock-notice issues, stressing that each case should be considered on its own facts.

Hudson v. Michigan

Police officers with a warrant to search Booker Hudson's home for drugs and firearms announced their presence at the door, but waited only three to five seconds before opening the door and walking inside. Hudson moved to suppress the evidence found during the search, and the state courts denied his motion. On appeal to the U.S. Supreme Court, Hudson argued that the premature entry violated his Fourth Amendment rights under Wilson, and that he was entitled to suppression of the evidence under the exclusionary rule.

By a 5-4 vote, the Supreme Court upheld the Michigan ruling denying suppression, and affirmed Hudson's conviction. The majority opinion assumed, as the state had apparently conceded, that the officers' brief delay after announcing their presence and authority was inadequate under the rulings in Wilson and Banks. But pointing out that it had specifically declined to define the remedy for knock-notice violations in Wilson, the court held that the remedy of exclusion of evidence was too drastic, considering the nature of the violation and the connection between knock-notice and discovery of evidence.

The court said, "Suppression of evidence...has always been our last resort, not our first impulse. The exclusionary rule generates 'substantial social costs' which sometimes include setting the guilty free and the dangerous at large."

In this case, said the court, the evidence was obtained under a valid search warrant, which would have been served and would have revealed the evidence, even if the officers had waited longer before entering. The evidence was therefore the result of a warranted search, not an unlawful entry.

The court also considered the availability of other means of deterring police errors with respect to knock-notice requirements, and found them to be sufficient without resort to the exclusionary rule. For example, officers and their agencies may be held civilly liable for damages and attorney's fees for knock-notice violations. Also, police internal discipline and increased professionalism provide checks against abuses. Therefore, "Resort to the massive remedy of suppressing evidence of guilt is unjustified."

After Hudson

The Fourth Amendment still requires that search warrants be executed in a reasonable manner, including knock-notice (if not excused). Officers should continue to abide by applicable knock-notice rules. But courts which apply U.S. Supreme Court rulings in determining admissibility of evidence should no longer invoke the exclusionary rule to suppress evidence seized under lawful warrants, merely because of knock-notice violations.

Devallis Rutledge, a former police officer and veteran prosecutor, is Special Counsel to the Los Angeles County District Attorney.

Tags: Search Warrants, Fourth Amendment, Point of Law


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