Knock, knock, who's there?

At common law, a search warrant authorized the forcible entry of private premises but only after the officers knocked on the door and announced their identity and purpose.(1) In Wilson v. Arkansas,(2) the Supreme Court held that this common law "knock and announce" requirement "forms a part of the reasonableness inquiry under the Fourth Amendment."(3)

The Wilson Court ruled unanimously on this point but left it to the lower courts to work out precisely when a no-knock entry might be constitutional.

The Court did not wait very long. Last term in Richards v. Wisconsin,(4) the Court delivered another unanimous opinion on the knock and-announce issue. The Supreme Court of Wisconsin had recognized a per se exception to the knock-and-announce rule where the warrant authorizes a search for commercial quantities of illegal drugs.(5) The U.S. Supreme Court, per Justice John Paul Stevens, rejected this per se approach in favor of a case-by-case inquiry into whether the police had reasonable suspicion that announcement might lead to violent resistance or destruction of evidence.

The facts of Richards well illustrate the dilemma arising from the execution of a warrant to search for illegal drugs.(6) The Madison police obtained a warrant to search Richards's motel room; they requested, but did not receive, prior judicial authorization for a no-knock entry. The police executed the warrant at 3:40 a.m. One officer was disguised as a maintenance worker. Others were in plainclothes, and at least one was in uniform.

When the "maintenance worker" knocked on the door (after three in the morning to visit a motel room where, presumably, nothing was in need of repair), Richards opened the door but did not unchain the latch. He saw a uniformed officer in the hall and slammed the door shut. The police forced their way in and caught Richards bolting through a window. The search turned up cocaine hidden above the ceiling tiles.

As the Wisconsin court emphasized,(7) announcing a raid on a drug dealer's stash pad enables the occupants to destroy the drugs, to flee, or to shoot at the police as they enter. On the other hand, police who execute a warrant in the wee hours must expect to roust the occupants from bed in a confused and frightened state of mind.

Announcement gives the occupants an opportunity to dress and to prevent the destruction of doors or windows. An unannounced, forcible entry is likely to be construed as criminal home invasion by the occupants.(8) Leaving the fear and shock of such an entry to one side, armed homeowners--of whom there are millions in the United States--may very well shoot first and ask questions later when their doors are kicked in or pried open in the middle of the night.

If the search targets are innocent--either because the police information is erroneous or because the police have gone to the wrong house--announcement has obvious advantages. If, however, there really are drug dealers inside, announcement still has benefits.

Drug dealers may try to destroy their stash, and a few may be willing to risk a firefight with a police tactical team. But dealers have as much to fear from private violence as from public justice. Unannounced entry can cause a needless shootout. Which scenario is more likely: that drug dealers will fire on those they know to be police, or that drug dealers will fire on those they assume are bent on a rip-off or a hit?

The Wisconsin court decided that the balance of these risks should be left to the police, who after all know more about the tactical considerations than reviewing courts. According to that court,

Allowing police to take command of the situation

is thus vital to the safe and effective execution

of a search warrant for evidence of felonious 

drug delivery. Moreover, the officers

executing a search are in the best position to

decide how to take command of the situation.

In some cases, police officers will undoubtedly

decide that their safety, the safety of others,

and the effective execution of the warrant

dictate that they knock and announce; in

other cases, they might decide that such a procedure

would be counterproductive or even

dangerous.(9)

The Supreme Court unanimously rejected this reasoning.

Justice John Paul Stevens gave two reasons for rejecting the court's drug-cases exception. First, the drug-cases category was overbroad, for the search for drugs might be executed when the only occupants of the home are wholly law-abiding, or when drugs are known to be stored in a way that is not immediately accessible.(10)

Second, many nondrug cases exhibit some of the same features as drug cases. Bank robbery, for example, generates evidence that can be readily destroyed, and is typically committed by desperate, violent characters. "If a per se exception were allowed for each category of criminal investigation that included a considerable--albeit hypothetical--risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless."(11)

Instead of estimating the risks of violence or evidence destruction according to the nature of the suspected offense, the Court opted for a requirement of particularized suspicion in each case. The police must have some reason to suspect that announcement would be met with resistance or evidence destruction, but this suspicion need not rise to the level of probable cause. Instead, the Court borrowed the less-demanding reasonable suspicion standard from Terry v. Ohio(12) and its progeny:

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.

This standard--as opposed to a probable cause

requirement--strikes the appropriate balance

between the legitimate law enforcement concerns

at issue in the execution of search warrants

and the individual privacy interests affected

by no-knock entries. This showing is not

high, but the police should be required to

make it whenever the reasonableness of a no-knock

entry is challenged.(13)

In the case at bar, the police complied with the applicable reasonable suspicion standard. When Richards slammed the door, the police had good reason to believe he would not cooperate with the search and might either flee or destroy evidence. They were, therefore, within their rights to execute the warrant without further niceties.

The knock-and-announce cases look deceptively simple. The Court has promulgated a sensible rule and has done so unanimously. Such a signal occasion should not go uncelebrated. There is, however, an unappreciated reason for the Court's unanimity in the Richards case, which involves the close connection between exigent circumstances justifying a no-knock entry and exigent circumstances justifying a warrantless entry.

The two types of exigency are not identical, because the possibility of resistance upon entry has little, if anything, to do with the need to enter now rather than later, after a warrant has been obtained. The loss of evidence, however, is very much a risk that justifies a warrantless search.(14) Truth be told, evidence destruction in drug cases is much more likely (if also much less worrisome) than violence directed against the police.

If probable cause to suspect drug dealing, without more, justified a no-knock entry because of the risk of evidence destruction, a case might soon be made for the proposition that probable cause to suspect drug dealing, without more, justifies an immediate home search without a warrant. The Court has once before rejected that claim;(15) Richards can be explained in part as an expression of the Court's unwillingness to erode the warrant requirement for the search of private homes.

If the Court's unanimity derived in part from broad acceptance of the residential warrant requirement itself, that unanimity is not likely to survive application of the controversial exclusionary rule to knock-and-announce violations. In Richards, the Court upheld the no-knock entry.

What about a case where the police lack the reasonable suspicion of resistance, flight, or evidence destruction that Richards says they must have before entering unannounced? The only meaningful sanction would be suppression of the fruits of the no-knock entry. But if the police, in our hypothetical case, had knocked and announced, they would have discovered the very same evidence unless the occupants succeeded in destroying it. Surely some of the justices would balk at suppressing evidence that the police obtained in the execution of a valid warrant when that same evidence would have been discovered even in the absence of the constitutional violation.(16)

In the end, how the exclusionary rule issue would be resolved is difficult to say, but it is practically certain that, so far as the knock-and-announce issue goes, the unanimity is over.

Notes

(1.) See WAYNE R. LAFAVE, 2 SEARCH & SEIZURE [sections] 4.8(a) (3d ed. 1996).

(2.) 514 U.S. 927 (1995).

(3.) Id. at 929.

(4.) 117 S. Ct. 1416 (1997).

(5.) State v. Richards, 549 N.W.2d 218 (Wis. 1996), aff'd, 117 S. Ct. 1416 (1997). The court adhered to its pre-Wilson decision in State v. Stevens, 511 N.W.2d 591 (Wis. 1994), cert. denied, 515 U.S. 1102 (1995).

(6.) The facts, for a change, are drawn from the opinion of the U.S. Supreme Court. See Richards, 117 S. Ct. 1416, 1418-20. The state supreme court applied a per se rule and hence did not recount the particular facts and circumstances in detail.

(7.) See Richards, 549 N.W.2d 218, 223-25.

(8.) On the utility of the knock-and-announce requirement, see LAFAVE, supra note 1, at 599-600.

(9.) Richards, 549 N.W.2d 218, 225.

(10.) Richards, 117 S. Ct. 1416,1421.

(11.) Id.

(12.) 392 U.S. 1 (1968).

(13.) Richards, 117 S. Ct. 1416, 1421-22 (citations omitted).

(14.) See Cupp v. Murphy, 412 U.S. 291 (1973) (authorizing police to take scrapings of blood from beneath the suspect's nails without warrant); Schmerber v. California, 384 U.S. 757 (1966) (holding warrantless blood test of DUI suspect constitutional when evidence would be metabolized before warrant could be obtained).

(15.) See Vale v. Louisiana, 399 U.S. 30 (1970).

(16.) Cf. Murray v. United States, 487 U.S. 533 (1988) (holding fruits of warrant search admissible even though evidence seized during search was previously observed by police during illegal, warrantless entry); Nix v. Williams, 467 U.S. 431 (1984) (allowing admission of tainted evidence when lawful police investigation would have discovered it anyway).