Knock and announce doctrine in law enforcement

Law Enforcement - Dubious Value of the Knock and Announce Requirement

Constitutional Protections and the Exclusionary Rule:

Wary of governmental intrusions at the expense of individual rights under British rule, the Founding Fathers drafted the United States Constitution to include provisions expressly intended to protect individuals and freedoms from unrestricted state exercise of police authority. Chief among these provisions is the Fourth Amendment to the Constitution, pursuant to which:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the person or things to be seized."

Prior to 1914, the U.S. Supreme Court recognized the constitutional principle of Fourth Amendment protections against impermissible search and seizure by the state, but without ever having defined specific remedies for violations. Then, in the landmark case

Weeks v. United States2 the Court excluded evidence seized without warrant or probable cause from the trial of Fremont Weeks. In that case, federal marshals had entered

Weeks' home without warrant or probable cause and obtained physical evidence against him which the state sought to introduce at trial. In excluding evidence improperly seized in violation of the Fourth Amendment constitutional protections against unreasonable search and seizure, the Court reasoned that anything short of excluding such evidence from use at trial was the only meaningful mechanism for remedying unconstitutional police conduct.

However, the Weeks decision applied only to federal criminal procedure, and therefore, as significant as it was, it still left the matter of remedying unconstitutional search and seizure by police to the states in non-federal cases. Then in 1961, the Supreme Court decided in Mapp v. Ohio3, that Weeks necessarily applied to all state courts, because otherwise, constitutional principles intended to safeguard from unreasonable police conduct were essentially meaningless to the extent that state and local courts could ignore the appropriate remedies defined previously by the Supreme

Court in Weeks.

Subsequently, the exclusionary rule was refined to account for unique situations where evidence obtained impermissibly was, nevertheless, spared exclusion from trial. In the 1984 case Nix v. Williams4 the Supreme Court refused to exclude the admission elicited through police custodial interrogation in violation of the defendant's right to legal representation during police questioning. In that case, police had questioned the suspect in the disappearance of a young girl after the suspect had invoked his constitutional right to be represented by his attorney, who was not present during the questioning. In response, the suspect provided inculpating evidence in the form of precise directions to the location of the victim's body, which the state sought to introduce at trial as evidence of guilt.

In refusing to exclude the evidence, the Court relied on the facts establishing that it would have only been a matter of time before the victim's body (along with independent evidence linking Williams to the crime) would have been discovered by the 200-member search team whose efforts in the area where the body was, in fact, located had only been terminated after the suspect's confession. The Nix decision introduced the concept of "inevitable discovery" pursuant to which evidence seized or elicited improperly in violation of constitutional rights would not be excluded where the same evidence would have been discovered anyway, by other (constitutionally permissible) means.

In general, the same rationale underlying the inevitable discovery rule has since generated an entire class of improper police conduct that qualifies as so-called "harmless error" recognized, for example, where police commit minor procedural mistakes in securing otherwise valid search warrants, where they mistakenly exceed the scope of a warrant during its otherwise valid execution, and where they accidentally discover criminal evidence during mistaken searches of the wrong home, and where they commit similar technical violations in constitutionally required procedures while acting in good faith and reasonable reliance on instruments and factual circumstances that would have permitted the seizure of the same evidence had their mistaken beliefs been accurate.

Applying the Exclusionary Rule to Knock and Announce Violations:

In 2006, the Supreme Court heard the case of Hudson v. Michigan5 in which the Court specifically considered the relative benefits and corresponding harm to society of enforcing the constitutional right of the individual to advance notice of warrant execution through excluding evidence seized in violation thereof, despite the otherwise valid execution of the warrant on the right subject and premises.

In Hudson, the Court relied very heavily on the essential and fundamental distinction between evidence that police were constitutionally entitled to obtain and evidence that police were not constitutionally entitled to obtain. The Court reasoned that violation of the knock and announce requirement, while legitimately subject to appropriate remedies in many instances, could not reasonably justify invoking the exclusionary rule with respect to the very evidence for which police had secured the proper warrants.

In principle, the decision correctly established that exclusion of evidence is too extreme a remedy that overvalues individual rights against the legitimate public interest of crime prevention and punishment. Whereas exclusion may sometimes be appropriate for evidence to which police had no constitutional right to seize in the first place, it is far too damaging a remedy in the case of evidence properly addressed by warrants improperly executed by sole virtue of failure to comply with the knock and announce requirement.

Weighing the Respective Interests of Constitutional Protections and Effective Policing:

The primary purpose of knock and announce requirements for search warrant execution is to allow the homeowner to avoid property damage to the home by granting law enforcement the access to the home to which they are entitled by warrant.6 Under English common law principles, the concept of providing notice of the sheriff's intention to enter a private home rests on the notion that the law:

abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it."7

Modern case law recognizes that in contemporary society where citizens may sometimes possess weapons whose firepower rival those of police authorities, and where the subject matter of search warrants are capable of nearly instantaneous destruction, certain exigent circumstances exist whose importance counterbalances the ancient purposes of allowing all subject to search warrants the opportunity to comply with lawful commands to grant entry into the home.8

When police officers execute validly obtained search warrants, they undertake unknown risks that may very well include deadly threats, particularly in states where residents may legally possess firearms in their homes. Defending one's home from intrusions by strangers is, classically, the most justifiable scenario for using deadly force to protect one's self and one's family, both at law and also in the minds of citizens. In this respect, police entry teams unnecessarily compromise their physical safety by providing advance notice of their intentions to execute a warrant.

When police officers breach the entrance pursuant to the valid execution of a no- knock search warrant without the advance notice required by knock and announce procedures, there is little opportunity, if any, for a homeowner to react with deadly force.

Typically, search warrants are executed at specific times of day or night purposely chosen to coincide with the minimal likelihood of alertness and preparedness for response to unanticipated intrusion. As often as not, the execution of the warrant is conducted when the subjects are known (or at least, expected) to be sleeping. Warrant execution employs entry teams well practiced in breaching entrance ways so quickly that subjects are often subdued safely before they are fully awake.

Conversely, the momentary delay required by knock and announce warrant execution procedures can, at least potentially, dramatically increase the risks to police breached entry teams and warrant execution squads, as well as to the subjects of the warrant, their families, and to other innocent citizens present in the home but uninvolved in criminal matters. Whereas unannounced breach into the home usually occurs too quickly for subjects to access secreted firearms for defensive use, the momentary notice provided by knock and announce requirements allows for sufficient time to do so, endangering the warrant execution squad and entry team, as well as everyone already present in the home.

Furthermore, executing a warrant after fulfilling knock and announce requirements may increase the relative risks to all involved beyond the risks associated with either extremes at the opposite ends of the possible response spectrum of behavior on the part of the subjects to executed warrants. Specifically, a sleeping (or otherwise completely surprised) subject is likely to be too startled and/or too groggy to respond with anything but complete compliance in the face of overwhelming police presence. On the other end of the possible response spectrum, except in the case of felons known to harbor violent sentiments with respect to law enforcement, a fully awake subject is able to react with the alertness of mind to recognize the futility and inadvisability of initiating any type of armed resistance to police authority. Moreover, the risks posed by felons with known propensities (or stated intentions) to respond violently to law enforcement apprehension efforts are usually subject to judicially approved no-knock arrest warrants; therefore, they can be excepted from this particular element of analysis.

However, a subject who is forewarned of officers' intention to breach his home's entrance by the amount of time required by knock and announce standards presents the worst case scenario for all involved: he may be insufficiently startled to preclude any response on his part in the manner of a subject who is completely surprised (or fast asleep) at the moment of entry; but he may have just enough time to reach reflexively for stowed or secreted weapon while at the same time being deprived of sufficient reaction time and/or cognitive awareness to perceive the inadvisability of doing so under the circumstances, with deadly results. Stated very simply, a startled or groggy armed felon presents more of a danger to police, to himself, and to anyone else present at the time of a search warrant executed on his home than both a completely startled (or sleeping) subject and a completely alert subject.

Likewise, in the case of accidental execution of a valid warrant on the wrong premises, (or on the right premises where only innocent parties are present at the time of execution), complete surprise reduces the risk to all involved as compared to entry pursuant to knock and announce procedures. Especially in dangerous neighborhoods, home intrusions are not that uncommon, and experience suggests that criminal home invasion by police impersonators are a known modus operandi. Under these circumstances, even non-criminally inclined subjects may react by reaching for legally possessed defensive firearms, especially when not fully awake or aware of what is happening.

Under such scenarios, it is precisely the innocent citizen completely unaware of criminal activities of the subject of the warrant who may be least hesitant to respond with what he perceives as justified deadly force to an apparent home invasion. Ironically, the innocent person who is present in the home may, therefore, present the greatest danger to everyone involved when police breach the entrance after providing momentary notice instead of none at all.

Alternative Remedies Consistent with the Concept of Harmless Error:

Law enforcement always represents a balance of benefits and detriments to individuals and to society as a whole. Where police are free to initiate warrant-less searches based on whims or purely subjective beliefs or suspicions, society suffers from governmental oppression. Conversely, where individual rights are so absolute as to make effective law enforcement virtually impossible, society and all individuals who choose to live within it lawfully suffer, while criminals enjoy the comparative freedom to prey on those incapable of protecting themselves.

In this regard, it is also helpful to consider the implications of policy on the conduct of police procedures and the underlying motivations for police conduct that may violate constitutional guidelines. Specifically, the potential motivation for police to purposely violate constitutional requirements for securing warrants to search and arrest, or to elicit evidence of ongoing or planned criminal activity or confessions of past criminal conduct are easily understandable: violations of this nature provide access to information to which police would not otherwise be privy.

Precisely because this potential motivation correlates so directly to oppressive police conduct that violates fundamental concepts of the U.S. Constitution, exclusion of evidence obtained in violation thereof is the appropriate remedy. The alternative of allowing the wrongfully-obtained evidence at trial would provide continued motivation for similar violations to the detriment of all in society.

In comparison, the only plausible motivation on the part of police authorities to consider violating knock and announce requirements is to protect themselves from deadly resistance that is, in and of itself, prima facie unlawful. Irrespective of whether or not police comply with the knock and announce component of otherwise validly secured and executed search warrants, the evidence to which they are already entitled to search for and possess is the same.

As a general principle required if police are to be allowed to enforce laws, any remedies or compensation for improper police conduct must be provided by mechanisms that do not unnecessarily impede police procedures at the time of police action initiated in good faith. That is precisely why arrests and/or instances of imprisonment that are determined, in retrospect, to have been unlawful are addressed under civil statutes and by agency sanctions against the offending police personnel.

Resistance to arrest, even where it is unlawful, is not permitted at the time of arrests, simply because the subjective beliefs of criminal suspects cannot justify noncompliance with commands issued by police in the field. Likewise, exclusion of valid evidence by virtue of minor, superficial violations of the knock and announce requirement, (especially, when justified by exigent circumstances or officer safety), are more appropriately addressed by monetary compensation or by agency administrative sanctions than by excluding evidence to the detriment of society.

Perhaps the only exception to that notion is that police compliance with knock and announce requirements may sometimes provide those inclined to destroy inculpating evidence a momentary opportunity to do so. However, this is hardly the intent or the principle underlying the knock and announce requirement: a person maintains a constitutional right to be secure in his home and his effects; there is absolutely no constitutional right to the opportunity to destroy evidence or contraband, which is, itself, distinct felonious criminal violation.