By Schott, Richard G.
The FBI Law Enforcement Bulletin , Vol. 75, No. 9
On August 27, 1998, at 3:35 p.m., approximately seven Detroit police officers executed a search warrant for narcotics and weapons at the home of Booker T. Hudson, Jr. Although the officers shouted "police, search warrant" upon their arrival, they waited only 3 to 5 seconds before entering. When asked why they did not wait longer before entering, an officer testified that he was concerned for the officers' safety, noting that he had been shot at numerous times when executing similar warrants. Upon entering the home, the officers found Hudson sitting in a living room chair; at least five other men and women were found running throughout the house. During the ensuing search, the officers located and seized cocaine, a loaded revolver, and cash. They discovered some of the evidence on the chair where Hudson had been seated or close to it. He subsequently was charged with possession of less than 50 grams of cocaine with intent to deliver (1) and possession of a firearm during the commission of a felony. (2) The trial court held that the failure to comply with the knock and announce requirement caused the evidence discovered during the search to be suppressed. When the decision to suppress the evidence was overruled by the Michigan Court of Appeals (and the Michigan Supreme Court let that decision stand), Hudson was convicted of possession of less than 25 grams of cocaine and acquitted of the firearm charge. When the Michigan Court of Appeals denied the appeal of his conviction (and the Michigan Supreme Court again left that decision intact), Hudson appealed the decision to allow the evidence to be used against him to the U.S. Supreme Court. (3) The Court agreed to hear the case and to rule on whether suppression of the evidence is the appropriate remedy for knock and announce violations that precede the execution of valid search warrants. This article outlines the evolution of the knock and announce requirement of the Fourth Amendment, discusses the principles of the exclusionary rule and inevitable discovery, and analyzes the Supreme Court's decision in Hudson v. Michigan (4) in light of the aforementioned doctrines.
FOURTH AMENDMENT PRINCIPLES
Reasonableness and the Knock and Announce Requirement
The Fourth Amendment to the Constitution provides people the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (5) Part of the reasonableness inquiry is to determine whether the execution itself of a particular search was reasonable. The execution of a search warrant typically begins with law enforcement officers making entry into the location to be searched. To be deemed reasonable, officers are required to knock and announce prior to their entry unless there is a reason to dispense with this requirement. The Supreme Court has recognized that failing to knock and announce (and lacking a valid reason not to) amounts to an unreasonable search and, thus, an unconstitutional one. (6) In Wilson v. Arkansas, (7) however, the Supreme Court made clear that the knock and announce constitutional requirement is not absolute but, rather, that "countervailing law enforcement interests" could make knocking and announcing unnecessary. (8) Cited as legitimate reasons to dispense with knocking and announcing were if the searching officers would be facing "a threat of physical violence"; having "reason to believe that evidence would likely be destroyed if advance notice were given"; or when advance notice "would enable [a] prisoner to escape." (9) This last potential exception points out that the knock and announce requirement applies to all entries--whether the purpose once inside is to search the location or to arrest someone.
The underlying rationale for the requirement to give notice prior to making entry makes this across-the-board application logical. The requirement is designed to maintain the sanctity of a person's home. …