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Features

Clearing Up Knock-and-Announce Confusion

Yes, you can go in without knocking. But you better know when to do it, or a plaintiff's attorney will teach you the hard way.

August 01, 2007  |  by Alicia Hilton - Also by this author

To comply with the notice requirements under the knock-and-announce rule, you must identify yourselves as police and indicate that you are at the home to execute a search warrant. After this announcement is made, you must wait a reasonable time for an occupant of the premises to admit you. If you are denied entry or there is no response from within the residence, you may proceed with a forcible entry if necessary.

The Supreme Court first addressed how much delay is necessary before forcible entry in United States v. Banks. They concluded that a 15- to 20-second wait by the police before they forced the door open with a battering ram was sufficient because the police had reason to believe that if they waited longer, Banks would destroy his suspected stash of cocaine. The officers that executed the search were unaware that Banks was showering when they knocked on the door. The Court reasoned, "[T]he facts known to the police are what count in judging reasonable waiting time."

In addition to destruction of evidence, the Supreme Court has recognized other situations where police do not have to knock and announce:

  • A reasonable suspicion of a threat of physical violence to the officers or someone within the residence
  • A reasonable suspicion that knocking and announcing would be futile
  • A hot pursuit of a fleeing criminal

With regard to futility, proof that officers have made a demand for entry and that entry has been refused has been deemed unnecessary.

Reasonable suspicion rather than probable cause is the appropriate showing when a no-knock entry is challenged. The Supreme Court has also rejected a bright-line rule that certain categories of cases such as narcotics investigations should always be exempt from knock and announce. Instead, the Court requires a case-by-case, totality-of-the-circumstances analysis.

The Evidence May Still be Accepted

Perhaps the most important Supreme Court decision involving the knock-and-announce rule was handed down last summer. In Hudson v. Michigan, the Court considered whether narcotics and firearms that were seized during a search should be suppressed because the Detroit police officers who executed the search warrant failed to observe the knock-and-announce rule. The officers did announce their presence, but they waited only a short time—perhaps three to five seconds—before opening the unlocked front door and entering Booker Hudson's home.

Because Michigan conceded that the officers had violated knock and announce, the sole issue was whether to apply the exclusionary rule.

In delivering the opinion of the Court, Justice Scalia concluded that violation of the knock-and-announce rule does not require application of the exclusionary rule. He wrote that the exclusion of evidence was not warranted because "the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence." Scalia based his opinion on the fact that the police would have executed the warrant and found the guns and cocaine even without the violation.

Furthermore, Scalia adds that even if the violation were the but-for cause of the seizure that would not necessarily be a sufficient condition for suppression. "[W]e have never held that evidence is 'fruit of the poisonous tree' simply because 'it would not have come to light but for the illegal actions of the police.'"

In addition, the Court's decision said that the exclusionary rule is not an appropriate remedy for a knock-and-announce violation. The Court reasoned that the threats of internal police discipline and civil suits were effective motivators to prompt officers to follow the knock-and-announce rule.

To sum up, in Hudson v. Michigan the Supreme Court decided that the exclusionary rule was not an appropriate remedy for a knock-and-announce violation. But let's be clear on this: It did not abolish the knock-and-announce rule. On the contrary, the Court reiterated reasons that the rule should be followed and emphasized that plaintiffs have the right to sue law enforcement officers who violate their constitutional rights.

Tags: Search and Seizure, Fourth Amendment, Warrant Service


Comments (1)

Displaying 1 - 1 of 1

rat @ 4/28/2009 5:51 PM

Very informative information. This really sets the guidlines with serving a search warrant.

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