Even in cases involving known drug dealers, police officers cannot automatically force entry without knocking to serve a warrant without following recent Supreme Court guidelines.
L.E. “Ted” Wilson
Excerpted from Warrants Manual for Arrest, Search & Seizure (3rd edition)
Thankfully enough for police officers and prosecutors, the courts continue to provide some direction with respect to search warrant execution, particularly in the area of no-knock entry. With more cases where officers attempt to execute search and/or arrest warrants in potentially dangerous situations—such as on the home of a known drug dealer—knowing the rules is important for ensuring the search will be upheld in court. (Note, however, that nothing is more important than officer safety.)
In the knock-and-announce realm, as in most search and seizure questions, the first test for Fourth Amendment compliance is reasonableness.1 The courts are charged with responsibility to tell us what that means. In this area, the U.S. Supreme Court has spoken in the cases of Wilson v. Arkansas,2 Richards v. Wisconsin,3 U.S. v. Banks,4 and Hudson v. Michigan.5 The four Supreme Court cases have established:
1) the rule (generally unreasonable not to knock and announce);
2) the exceptions to the rule (futility, danger, frustration of the search’s purpose);
3) guidelines for the length of time officers must wait after complying with the rule; and
4) the federal exclusionary rule is inapplicable to cases wherein officers fail to knock and announce.
In Wilson, the Court said that announcing their authority and purpose before officers enter a dwelling is a long-standing common law practice surely contemplated by the Constitutional framers when they prohibited unreasonable searches and seizures.6 As a consequence, it is unreasonable to enter a home with a warrant before giving the homeowner/occupants notice of purpose and authority. This is known as the “knock and announce” rule because it requires officers to knock on the door and announce their purpose before making a forceful entry. While this sounds reasonable, in practice it can become difficult, if not downright dangerous.
Richards v. Wisconsin reaffirmed the knock-and-announce rule but gave us a standard to apply when trying to establish an exception to the rule. Mr. Richards tried to deny entry to police when they were executing a search warrant of his hotel room. They had to force their way in, and Richards was convicted of felony possession of the cocaine found in the hotel room. Before the trial, he asked the trial court to suppress the evidence because the officers did not knock and announce their presence before forcibly entering. The Wisconsin Supreme Court affirmed the conviction and used the case to try to establish a blanket exception in all felony drug searches, saying officers’ safety and evidence destruction circumstances were always present in drug cases. The U.S. Supreme Court would not approve this blanket exception. It upheld Richards’ conviction, however, because the particular facts in his case justified forceful entry without first knocking, announcing, and waiting for submissive compliance by the search target.
Here is the test: Executing officers 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.”7
If officers can articulate this suspicion with good reasons, entry will still be considered reasonable even if they do not knock and announce. Officers may determine when these circumstances are present or applicable either before acquisition of the warrant or during its execution.
If the facts and circumstances that create the probable cause include likelihood that knocking and announcing would be dangerous, futile, or would inhibit the effective investigation of the crime (for instance, that the defendant is likely to destroy evidence),8 these facts should be expressly articulated in the narrative portion of the affidavit that becomes the basis of the warrant. Accordingly, the affidavit or application for the warrant should request entry without knocking or announcing, and the warrant should show on its face whether the magistrate approves such entry at the time the warrant is issued.
If the affiant cannot in good faith articulate the need for the exception to the rule, the affidavit and warrant may remain silent on this issue. Then, if at the time of execution, as in Richards v. Wisconsin, the officers are presented with circumstances giving rise to the necessary reasonable suspicion explained in the no-knock test, they may make a forcible entry without knocking or announcing. They will be expected to explain those circumstances in their reports and on the witness stand if the method of entry becomes an issue in subsequent litigation.
The U.S. Supreme Court added a new variation on the exceptions in Banks: The time officers must wait after knocking and announcing is determined by the same considerations that apply to the exceptions generally. In other words, anything that the executing officers know that will establish one or more of the exceptions (futility, danger, frustration of search purpose)—including the effect of knocking and announcing—continues to justify forceful, non-consensual entry until actual entry is made.9 This means the time delay will be evaluated by the same criteria as the exceptions.
In Banks, the Supreme Court ruled that 20 seconds was sufficient time to allow people in the apartment to come to the door. More important, it was also time enough for people inside to begin destroying evidence. Banks said he was in the shower when the officers knocked, but the Supreme Court said that police are not responsible for that, or for ascertaining whether Banks actually heard the officers before their entry.
Note, however, that Banks does not remove the requirement that officers articulate why the facts of each case establish one of the exceptions to the knock and announce rule. The Court did not establish an automatic 20-second reasonableness rule. Instead, it held that in the Banks entry, 20 seconds was reasonable.
Similarly, Texas cases affirm the Supreme Court rule that officers executing a warrant may not use general concepts to justify an exception but must give specific facts material to the particular place and circumstances of the search.10 There is no blanket knock-and-announce exception for cases enforcing drug laws.11
After a few years of windfall dismissals for criminal defendants due to evidence being suppressed for failure to knock and announce, the Supreme Court declared the party was over in Hudson v. Michigan. Saying that the nexus between method of entry and seizure of evidence is absent, plus the societal cost is too high, the Court declared exclusion of evidence an inappropriate remedy for this brand of unreasonable government behavior. Quickly taking the hand-off for Texas, the First Court of Appeals reversed a suppression order in State v. Callaghan,12 saying that there was no causal connection between the manner of police entry and collection of the evidence.
The authors strongly recommend that officers continue to abide by the pre-Hudson rulings in this area. The potential exclusion of evidence from the courtroom is not the only consideration here. Because the method of entry is no less a factor when considering Fourth Amendment reasonableness, other remedies are available to those individuals who can show harm when officers fail to knock and announce. Saying “civil liability is an effective deterrent here,”13 the Supreme Court practically invited aggrieved parties to initiate civil rights suits while observing such suits are proceeding in the lower courts “unimpeded by assertions of qualified immunity.”14 Ouch! One could win a battle here but lose the war, or more specifically, lose his pension due to a bad turn of events during execution of a search warrant. Numerous unexpected contingencies are the rule rather than the exception during warrant executions; when those circumstances give rise to liability claims, one needs to be able to show he operated within procedures approved by the courts and the legislature. Continue to follow the presumption that execution of search warrants will be preceded by knocking and announcing presence and purpose. Be prudent when you believe the facts of a particular case rebut that presumption. ✤
1 See Board of Education v. Earls, 536 U.S. 822, 828 (2002) (“‘reasonableness’ … is the touchstone of the constitutionality of a government search”).
2 Wilson v. Arkansas, 514 U.S. 927 (1995).
3 Richards v. Wisconsin, 520 U.S. 385 (1997).
4 United States v. Banks, 540 U.S. 31 (2003).
5 Hudson v. Michigan, 547 U.S. 586 (2006).
6 This principle is also long-standing in Texas law. It is statutorily incorporated in the directive concerning execution of felony arrest warrants. CCP art. 15.25 provides forceful entry may be made into a house by an officer “if he be refused admittance after giving notice of his authority and purpose.”
7 Richards, 520 U.S. at 394.
8 See, e.g., United States v. Jones, 133 F.3d 358 (5th Cir. 1998) (relying on concept of exigency, 15- to 20-second wait was reasonable).
9 Banks, 540 U.S. at 41-42 (disapproving of 9th Circuit’s “four-part scheme for vetting knock-and-announce entries”).
10 Stokes v. State, 978 S.W.2d 674 (Tex. App. — Eastland 1998, pet. ref’d) (officers’ testimony that residence contained marijuana and guns established the danger predicate when officers waited two seconds before ramming the door); Robinett v. Carlisle, 928 S.W.2d 623 (Tex. App.—Fort Worth 1996, pet. ref’d) (potential danger and feared destruction of evidence justified entry; police conduct found “objectively reasonable”); compare Price v. State, 93 S.W.3d 358 (Tex. App. — Houston [14th Dist.] 2002, no pet.) (officer’s testimony that people who possess drugs are “normally in possession of firearms” and therefore presumed dangerous insufficient to establish facts specific to the case to support an exception); Ballard v. State, 104 S.W.3d 372, 383 (Tex. App.— Beaumont 2003, pet. ref’d) (general testimony about meth labs and the people who operate them insufficient to justify an exception: “the mere presence of a handgun, functional or not, is insufficient, as an exigent circumstance exception to the knock-and-announce rule, where the State does not also prove the authorities possessed information that the individual(s) subject to the warrant was likely to use the weapon, was likely to become violent, had a criminal record reflecting violent tendencies, or a verified reputation of a violent nature”).
11 Richards, 520 U.S. at 394; Brown v. State, 115 S.W.3d 633, 639 (Tex. App.—Waco 2003, no pet.) (testimony about general propensities of meth labs and their dangers not sufficiently specific to the case to justify exception); Ballard, 104 S.W.3d at 381 (“the fact that it is ‘the nature of the beast’ for methamphetamine labs to explode along with testimony of possible triggering factors in no way explains why breaching a door without first implementing the knock-and-announce doctrine makes it more likely that an explosion will be prevented”).
12 State v. Callaghan, 222 S.W.3d 610 (Tex. App. —Houston [1st Dist.] 2007, pet. ref’d) (decided under Texas’ exclusionary rule, CCP art. 38.23).
13 Hudson v. Michigan, 547 U.S. at 598.
Editor’s note: A newly updated edition of Warrants Manual for Arrest, Search & Seizure by Tom Bridges and Ted Wilson features significant new information on DWI blood search warrants and sealing affidavits, as well as updates on the knock-and-announce rule excerpted here.
The 2009 edition also marks a significant revamping of the arrest and search warrant forms found in Appendices D and E. In this edition, Tom and Ted have included three different types of forms for each affidavit example in Appendix E. The first format (“Format A—Traditional”) relies on the language used for many years in pre-printed search warrant affidavit forms. The second format (“Format B—Condensed”) often used by affidavit writers omits the numbered paragraphs and sections, condensing the information into a format familiar to readers of legal documents often found in court filings. A third format (“Format C—Constitutional”), not often seen but recommended by the authors, establishes probable cause for the search before designating any specific requests of the magistrate. Format C recognizes the need to prioritize and highlight the probable cause to establish reasons why certain locations should be searched, why certain property is evidence of an offense, why special entry needs will be present, why certain individuals are expected to be at the search premises, etc.
Both appendixes are set off with black (“bleed”) tabs on the side of the book so the reader can more easily turn to those sections.
For more information or to order a book, call 512/474-2436 or see the TDCAA website at www.tdcaa.com.