Knock and announce: a Fourth Amendment standard.
BACKGROUND OF WILSON V. ARKANSAS
The defendant in Wilson made a series of drug sales to an Arkansas State Police informant and threatened the informant with a gun. The police later went to the defendant's apartment to execute a search warrant and found the front door open. Upon opening an unlocked screen door to enter the residence, the police identified themselves and stated that they had a warrant. Once inside the home, the officers seized various drugs, paraphernalia, a gun, and ammunition. They also found the defendant in the act of flushing marijuana down the toilet.
Prior to trial, the defendant filed a motion to suppress the evidence seized during the search, arguing that the police had violated her Fourth Amendment rights by failing to knock and announce prior to entering her home. The trial court denied the suppression motion and the Arkansas Supreme Court affirmed her conviction by concluding that knock and announce is not a Fourth Amendment requirement.
The U.S. Supreme Court reversed and held that the knock and announce principle is a constitutionally based requirement in assessing whether entry to premises to conduct a search and seizure is reasonable. The Court did so by looking at the background and formulation of the knock and announce rule based in common law.
Common Law Origin of Knock and Announce
The common law knock and announce principle deals with the right to privacy, specifically in one's home. The knock and announce requirement, well-established in England by the 18th century, quickly became woven into the fabric of early American law. Despite many exceptions and a history of abuse, some form of notice or demand for admission generally preceded the service of general warrants and writs of assistance in early Colonial America.(2)
It is clear that the framers of the Fourth Amendment were familiar with the abusive search and seizure practices used by the British government and adopted the amendment as a response to such practices. Although unannounced searches are not explicitly prohibited in the Constitution, the Fourth Amendment's protection against unreasonable searches and seizures implicity embraces the common law principle that law enforcement officers should announce their purpose and authority before forcibly entering an individual's home.(3)
Knock and Announce Legislation
Despite this common law background, 34 states, the District of Columbia, and the federal government have enacted statutes requiring that law enforcement officers knock and announce their presence prior to making forced entry to premises.(4) A typical example of a statutory enactment is the federal knock and announce statute, which provides:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.(5)
Some jurisdictions enacted legislation providing for so-called no-knock warrants. However, controversy precipitated by no-knock warrants resulted in Congress' repealing the federal no-knock statute in 1974. Only a few states currently have statutes authorizing no-knock warrants.
EXCEPTIONS TO KNOCK AND ANNOUNCE
American courts have long recognized that effective and safe law enforcement necessitates some exceptions to the knock and announce rule. For example, the following language was contained in a 1969 decision by the Washington State Supreme Court:
In most cases, lawful entry is conditioned upon announcement of identity and purpose, and a demand of admittance. On the other hand, however, the conditions cannot be rigid and inflexible or they become an empty formality. The conditions are part of a criteria of reasonableness and subject to certain exceptions generally recognized."(6)
In Wilson, the Supreme Court restated some of these very words in recognizing the applicability of the common law exceptions to the now-constitutionally based knock and announce rule.(7) While the Wilson decision does not delineate the conditions that constitute a reasonable unannounced entry, courts generally have recognized the following three exceptions to the announcement rule: 1) apprehension of peril 2) useless gesture and 3) the destruction of evidence.
Apprehension of Peril Exception
The apprehension of peril exception is triggered when officers entering premises have a reasonable belief that to announce their presence prior to the entry would increase the likelihood of injury either to themselves or to others. Wilson recognized that a no-knock entry would be almost certainly constitutionally permissible under circumstances indicating the occupants would respond to announcement with physical violence.
Mere knowledge that a suspect has weapons in the house generally is not a sufficient justification for an unannounced entry by police. In United States v. Lucht,(8) the United States Court of Appeals for the Eighth Circuit held that an unannounced entry was illegal because police had no indication that the suspect was violent or inclined to use the weapons that they believed were present in the house.
However, courts are generally sympathetic to police when they have a reasonable belief that the suspect is armed under circumstances indicating danger. For example, the Supreme Court of Florida held that police were justified in invoking the apprehension of peril exception in a murder case where the suspect had committed armed robbery of a deputy and had used a gun or knife in several rapes.(9) Here, police not only had knowledge that the suspect possessed weapons inside his premises but also that he had committed a violent crime and had a history of violent behavior.
In United States v. Buckley,(10) officers knew that the defendants possessed firearms and also that they had a pit bull. The United States Court of Appeals for the Seventh Circuit concluded that the presence of the pit bull indicated danger and justified the unannounced entry. The Fourth Amendment does not require that police risk Fighting off a forewarned attack dog before executing their warrant.
As a general rule, the apprehension of peril exception to the announcement rule applies where police have specific knowledge that a suspect has used a weapon criminally or threatened to use a weapon to avoid arrest. Accordingly, courts have upheld the exception where officers previously were threatened while serving a warrant on the defendant(11) and where the suspect had vowed not to return to prison.(12)
Useless Gesture Exception
The useless gesture exception to the knock and announce rule arises when the occupants of a house already have notice of the officers' nature and authority. This exception stems from the notion that if the occupants realize the purpose of the police visit, the purpose of the knock and announce rule already has been satisfied. Similarly, announcement is a useless gesture where police are certain that a dwelling is unoccupied.
Courts generally follow the Supreme Court's guidelines in Miller v. United States,(13) in determining whether the suspects' conduct at the scene of the entry justifies an unannounced entry under the useless gesture exception. The Miller test requires that officers be "virtually certain" that the occupants of a house are aware not only of their authority but also of their purpose. Establishing a virtually certain belief requires more than merely evidence that the occupants of a house have observed the police's arrival. Police must couple with that evidence a logical inference that the occupants also are aware of why the police are there, such as hearing the sound of people running from the door as the police approach.(14)
Destruction of Evidence Exception
The destruction of evidence exception allows police to forego announcement if they reasonably believe that announcement would lead to the destruction of evidence or to a subject's escape. However, courts disagree regarding the quality and quantity of information officers must have regarding the likelihood of destruction of evidence or escape. While probable cause is the generally accepted standard for escape, courts, particularly in drug searches, have developed two competing approaches in determining the requisite showing of risk required to trigger the destruction of evidence. These are the "particularity approach" and the "blanket approach."
The Particularity Approach
Under the particularity approach, courts require proof that officers were aware of specific facts at the scene that created the risk of the destruction of evidence. For example, some courts require evidence that the drugs are kept in a form, such as in small packages, that would facilitate rapid destruction. Others require a particularized display of ability or inclination to destroy items sought by police.
In some jurisdictions, the fact that a house has normal plumbing facilities satisfies the question of ability or inclination to destroy evidence, thus allowing police to presume that exigent circumstances exist and excusing compliance with the knock and announce rule.(15) Because many drug offenders attempt to flush their drugs down the toilet when they perceive that the police are about to raid their homes, plumbing in the house creates a risk of destruction of evidence sufficient to justify the exception.
The Blanket Approach
Under the blanket approach, courts do not require a showing that officers had any particular reason to believe that the evidence they were searching for was in danger of destruction. Rather, the mere nature of the evidence sought, such as drugs or gambling records, creates a per se exception to the announce rule. The basis for this blanket approach is the officer's general experience that the type of evidence being searched for is susceptible to quick destruction thereby meriting a no-knock exception.
State and federal courts are divided over the validity of the blanket approach.(17) However, the Supreme Court may rule on the constitutionality of the blanket approach when it renders a decision in Richards v. Wisconsin.(18) The question presented in this case is whether the Fourth Amendment, as interpreted by Wilson v. Arkansas, would permit a blanket exception to the announcement rule if drugs are the object of the search without looking at particular circumstances pertaining to the entry.
UNDERLYING RATIONALE FOR KNOCK AND ANNOUNCE
The Supreme Court has determined that "every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house."(19) The knock and announce rule provides citizens with psychological security, knowing that one need not fear an unexpected intrusion. Privacy interests also are protected, avoiding unnecessary embarrassment, shock, or property damage resulting from an unannounced entry.
The rule serves to protect both the individual citizen and the police from the risk of harm and the potential for violence that may occur as a result of an unannounced entry.(20) Announcement protects officers by ensuring that they are not "mistaken for prowlers and shot down by a fearful householder."(21) Innocent citizens also are protected from law enforcement officers who mistakenly might shoot armed occupants who merely are trying to defend themselves from who they preceive to be armed intruders.
PRACTICAL CONSIDERATIONS FOR OFFICER SAFETY
A police officer making a high-risk warrant entry is not on an even playing field with the occupants of the premises. When officers announce their authority and purpose they make themselves readily identifiable. The occupants, having concealment in the house, now also know where the announcing officer is and can prepare for violent resistance to police entry. The officer is vulnerable even if no entry is made because ordinary handgun rounds generally can penetrate the walls of a typical house or apartment.
The point of entry into a house, be it a door or a window, is referred to as the fatal funnel. The occupants of the house need only aim their weapons at this point of entry and wait for the target to appear. That target is the law enforcement officer, and at that moment, the officer has no cover and more than likely no idea where the armed occupant of the house is located.
The officers are generally backlit, so their eyes must adjust to the lighting, or lack thereof, in the house. The armed occupants are presented with a clear target and need no time to adjust to the lighting. The officers may have little or no idea of the layout or floor plan of the premises and will require time to acclimate to their new surroundings. The armed occupants, however, need not acclimate themselves, for this is their home turf.
Moreover, the armed occupants know what they intend to do, whereas the officers only can infer whether the armed occupants intend to fight, flee, or surrender. This creates a situation where the occupants fire first because the officers cannot fire until they have determined the occupants' intention to resist. Such encounters in very close quarters frequently make the initial exchange of gunfire conclusive. The armed occupants may not consider possible harm to innocent bystanders, but the officers must.
Dynamic entries made by multiple three-officer teams have become common practice in many agencies. Diversionary tactics are employed to lead the armed occupants away from the entry point to be used by the initial entry team. The diversion may be a flashbang concussion grenade or the breaking of a window. The entry is then made by a team that is trained to respond to one another's movements, allowing the first member to go directly to any possible threat and the other team members to secure the remaining sectors of the room.
The initial three-officer entry team secures the first room entered and either proceeds on to secure other rooms of the house, allowing subsequent teams to maintain the secured areas, or the original team holds the secured area and the subsequent teams pass by and secure the rest of the premises. Simultaneous entries through multiple points allows for even faster police control of the premises. The various teams train to secure sectors of the premises and to safely converge with one another.
Tactics, precision, and orderliness are the cornerstones of executing high-risk warrants. Recognizing and implementing these procedures in training and actual warrant executions will help reduce the prospect of officer and suspect bloodshed.
The Wilson decision requires announcement unless an allowable exigent circumstance exists. The announcement need not be lengthy or elaborate. It need only be "police, we have a warrant to search your house, open the door," spoken loudly enough for someone in the house to hear. Officers shouting "police" as they run to the door with a battering ram, without exigent circumstances, would not suffice.(22) A reasonable amount of time must be given, so that the occupants of the house can comply with the demand. If they refuse to comply, or there is no response and a reasonable time has passed, then a forcible entry can be made.
Announcement may not be constitutionally required where one or more of the required exigent circumstances exist: imminent peril, useless gesture, or destruction of evidence. However, officers should carefully evaluate the operational and safety considerations discussed in this article before entering premises and review the facts to determine if exigent circumstances would legally justify a no-knock entry in a particular situation.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 115 S. Ct. 1914 (1995).
2 Ker v. California, 374 U.S. 23, 52 (1963) (Brennan, J., plurality opinion).
3 Miller v. United States, 357 U.S. 301, 313 (1958).
4 115 S.Ct. at 1917. In the absence of a statute, some state constitutions have been interpreted to require knock and announce.
5 Title 18 U.S.C. Section 3109.
6 State v. Young, 455 P.2d 595, 597 (Wash. 1969).
7 115 S.Ct. at 1918-19.
8 18 F.3d 541 (8th Cir. 1994) cert. denied, 115 S.Ct. 363 (1994).
9 Power v. State, 605 So. 2d 856, 862-863 (Fla. 1992), cert. denied, 507 U.S. 1037 (1993).
10 4 F.3d 552, 558 (7th Cir. 1993), cert. denied, 114 S.Ct. 1084 (1993).
11 People v. Hardin, 535 N.E.2d 1044, 1045-46 (Ill. App. Ct 1989).
12 State ex rel. Juvenile Dept. Of Multnomah City v. Qutub, 706 P.2d 962, 964-66 (Or. Ct. App.), review denied, 710 P.2d 147 (Or. 1985).
13 357 U.S. 301 (1958).
14 See United States v. James, 764 F.2d 885, 888 (D.C. Cir. 1985).
15 See State v. Stevens, 511 N.W.2d 591 (1994), cert. denied, 115 S.Ct. 2245 (1995); United States v. Moore, 956 F.2d 843, 849-850 (8th Cir. 1992).
16 511 N.W.2d at 595.
17 See, e.g., United States v. Lalor, 996 F.2d 1578 (4th Cir.), cert. denied, 114 S.Ct. 485 (1993); United States v. Lucht, 18 F.3d 541 (8th Cir. 1994); United States v. Stewart, 867 F.2d 581, 585 (10th Cir. 1989); United States v. Wulferdinger, 782 F.2d 1473 (9th Cir. 1986); United States v. Likas, 448 F.2d 607 (7th Cir. 1971); United States v. One Parcel of Real Property, 873 F.2d 7, 9 (1st Cir.), cert. denied, 493 U.S. 891 (1989); United States v. Tolliver, 665 F.2d 1005 (11th Cir.), cert. denied, 456 U.S. 935 (1982); Rodriguez v. Butler, 536 F.2d 982 (2d Cir. 1976).
18 State v. Richards, 549 N.W.2d 218 (Wis. June 12, 1996), cert. granted. 117 S.Ct. 679 (1997).
19 357 U.S. 313.
20 See Sabbath v. United States, 391 U.S. 585 (1968).
21 374 U.S. at 58 (Brennan, J., dissenting).
22 Moore v. State, 650 So.2d 958 (Ala.Crim.App. 1994).