Knock and Announce Violations: No "Cause" to Suppress
Schott, Richard G., The FBI Law Enforcement Bulletin
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. The sanctity of the home should be safeguarded regardless of whether it is a person or an object to be seized that is the reason for law enforcement's entry.
Protecting the sanctity of a person's home was the justification for the common law knock and announce rule that was incorporated into the reasonableness inquiry of Fourth Amendment analysis. As the early cases recognized, entry was going to be made. Knocking and announcing prior to entry merely provided the owner with the chance to comply before damage was done to his dwelling. In his Wilson (10) opinion for a unanimous Supreme Court, Justice Clarence Thomas borrowed at length from a 1603 English court case.
"Comon law courts long have held that 'when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him or to do other execution of the K[ing]'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors ..., for the law without a default in the owner 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.'" (11)
The opinion goes on to stress that no precise language is required during the announcement/demand to comply, merely language that communicates to the owner that the officer is acting under proper authority. (12)
The recognition in Wilson that sometimes entry would be permitted without first knocking and announcing did not contemplate that there are any blanket exceptions to the knock-first requirement. Just 2 years after Wilson, the Supreme Court struck down the notion that a category of such "blanket exceptions" exists. Ironically, at issue in Richards v. Wisconsin (13) was the unannounced entry of law enforcement following a magistrate's denial of their request for a so-called no-knock warrant for drugs. Although there was conflicting testimony as to whether the officers identified themselves before entering the search location, the state supreme court assumed as fact that the officers did not knock and announce. The Wisconsin Supreme Court found this assumption to be irrelevant as it affirmed a state-recognized blanket exception to the knock and announce requirement for drug search warrants not affected by Wilson. (14) The U.S. Supreme Court struck down the notion that blanket exceptions to the constitutional knock and announce rule exist. It did so, however, while affirming the state supreme court decision that the no-knock entry in this particular situation was warranted. The Court instructed that each situation has to be examined independently, without generalizations attached to certain categories of evidence. Justice John Paul Stevens, writing for a unanimous Court, expressed that "in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement." (15) Justice Stevens further articulated that "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." (16) Based on this reasoning, it is interesting to note that while the issuing magistrate was not satisfied in advance that the officers had articulated justification for dispensing with knocking and announcing, and thus for receiving a no-knock warrant, the justification did exist at the time of the warrant's execution. While a number of states authorize no-knock warrants, the Court's holding in the Richards case demonstrates that "a magistrate's decision to not authorize a no-knock entry should not be interpreted as removing the officers' authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed." (17) By the same token, because the reasonableness of the officers' decision must be evaluated as of the time they make entry, other states have ruled that a magistrate has no authority to abrogate the knock and announce requirement and, thus, do not allow for no-knock warrants. (18)
Reasonableness and the Delay
Because the beginning premise is that law enforcement officers must knock and announce before making entry to search or arrest, the next issue to address is what is required after knocking and announcing. Stated differently, how long are they then required to wait before making entry? Because the sanctity of the home is at the foundation of the knock and announce requirement, it stands to reason that time must be given to allow the property owner to maintain its sanctity by complying with law enforcement's demand and inviting a peaceful entry.
The Supreme Court has recently addressed this issue in United States v. Banks, (19) when it considered whether a 15- to 20-second delay before making entry, after knocking and announcing, satisfied the Fourth Amendment's reasonableness requirement. In reversing the Ninth Circuit Court of Appeals, the Court determined that an analysis based on the totality of the circumstances (20) dictated the appropriate length of delay, not a rigid four-part test espoused by the appellate court. Noting that the evidence subject to seizure by virtue of the warrant in Banks was easily disposable cocaine, as opposed to a piano, the 15- to 20-second delay was reasonable, while a similar delay would not suffice in all cases. (21)
Because it found no constitutional violation in the execution of the search warrant in Banks, the Supreme Court did not rule on the appropriate remedy had there been a violation of the knock and announce requirement. The Ninth Circuit Court of Appeals, on the other hand, had ruled earlier that suppression was appropriate because of the violation, even though a valid warrant had been obtained. (22) The appropriate remedy for a knock and announce violation was unclear until recently when the Supreme Court addressed the issue in Hudson v. Michigan. (23)
SHOULD FAILURE TO KNOCK AND ANNOUNCE CAUSE SUPPRESSION?
The Exclusionary Rule
The exclusionary rule was created by the Supreme Court in 1914 as the appropriate remedy when a search violative of the Fourth Amendment produced physical evidence sought to be introduced against the victim of the unconstitutional search. In Weeks v. United States, (24) the Supreme Court confronted the issue when a U.S. marshal entered the home of Fremont Weeks without a warrant or any other legal basis and seized physical evidence. The Supreme Court ruled that the Fourth Amendment violation made the evidence inadmissible in the resulting criminal case against Weeks because "[i]f letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution." (25) The Weeks decision made clear that the newly created exclusionary rule only applied to evidence unconstitutionally obtained by federal government agents, not to evidence unconstitutionally obtained by state government actors. (26)
The exclusionary rule was made applicable to state and local law enforcement officers when the Supreme Court decided Mapp v. Ohio (27) in 1961. Until then, state courts determined the appropriate remedy when nonfederal law enforcement executed an unconstitutional search or seizure. Not everyone in the state judiciary, or in the general public for that matter, believed that exclusion of valuable evidence was beneficial to society. Therefore, prior to 1961, not every state had a state equivalent of the federal exclusionary mechanism. In Mapp, the Supreme Court expressed its view that the exclusionary rule had to be applicable to federal and state prosecutions to "close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse" of the basic right to be free from unreasonable searches. (28) Justice Tom Clark, writing for the majority, recognized a flaw with some states' refusal to adopt an exclusionary rule--that "no man is to be convicted on unconstitutional evidence." (29) That principle would be hollow indeed if it were possible to be convicted based on unconstitutionally obtained evidence in some courtrooms but not in others. Finally, Justice Clark pointed out that the decision to apply the exclusionary rule across the board "gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." (30)
The Weeks and Mapp cases both dealt with unconstitutional, warrantless searches. No claim was made by the government in either case that the evidence seized somehow would have been discovered without the constitutional violation. It was not until 1984 that the Supreme Court recognized the "inevitable discovery" exception to the exclusionary rule. (31) Simply stated, the exception allows illegally obtained evidence to be used in a prosecution if the government is able to convince the judge that the evidence ultimately would have been discovered absent the violation. The logic in the inevitable discovery exception is that while the government should not profit from its illegal activity, neither should it be placed in a worse position than it otherwise would have occupied absent the illegality. (32) This is certainly an argument for the government to make when the only constitutional taint to evidence obtained pursuant to a search warrant is that the executing officers failed to comply with the knock and announce requirement of the Fourth Amendment. It logically can be argued that the search was going to occur, so the evidence would have been constitutionally obtained mere moments later than it was recovered. This was the situation in the Detroit case set forth in detail at the beginning of this article and the case that presented the U.S. Supreme Court the opportunity to rule whether suppression is the appropriate remedy when evidence is obtained pursuant to a valid warrant but where the knock and announce requirement was violated.
The Hudson v. Michigan Decision
When accepting the petition to hear Hudson v. Michigan, (33) the Supreme Court recognized that state and federal courts expressed divergent views on whether violations of the knock and announce requirement should result in the suppression of evidence. The Michigan Supreme Court (34) and the federal Seventh Circuit Court of Appeals (35) had found suppression inappropriate; while the Maryland Court of Appeal, (36) the Arkansas Supreme Court, (37) and the Sixth, (38) Eighth, (39) and Ninth (in Banks (40)) Circuits in the federal system had ruled suppression an appropriate remedy. In Hudson v. Michigan (41) the U.S. Supreme Court ruled that suppression of evidence obtained during the execution of a search warrant where a violation of the knock and announce requirement had occurred was inappropriate. In a 5 to 4 majority opinion authored by Justice Antonin Scalia, the Court noted that suppression of evidence "has always been [the Court's] last resort, not [its] first impulse" (42) because of the societal costs associated with suppressing evidence.
Scalia's opinion also pointed out a lack of causal connection between the failure to knock and announce and the discovery of the evidence in Hudson's home. This was the case, of course, because the officers had a valid search warrant to search the home. (43) In other words, the evidence was to be inevitably discovered in spite of the violation.
Finally, the Court turned its attention to the deterrence value in suppressing the evidence. Responding to Hudson's challenge that without suppression there will be no deterrence of knock and announce violations, Scalia noted multiple flaws in the argument. First, exposure of the individual who violates the constitutional knock and announce requirement to civil damages serves as a deterrent. Second, the majority noted that "[a]nother development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline," (44) as well as the "increasing evidence that police forces across the United States take the constitutional rights of citizens seriously." (45) Moreover, the Court pointed out that a repeated "[f]ailure to teach and enforce constitutional requirements exposes municipalities to financial liability." (46) This municipal liability is in addition to the exposure the individual officer faces when violating the constitutional rights of citizens.
It is worth noting that the decision in Hudson was passed by the slimmest majority (with Chief Justice Roberts, Justice Thomas, and Justice Alito concurring in its entirety, while Justice Kennedy concurred with Parts I, II, and III of the opinion but wrote a separate opinion concurring in the judgment). Meanwhile, Justice Breyer wrote a strongly worded dissenting opinion joined by three other Justices (Stevens, Souter, and Ginsburg). Most important to the dissent was its disagreement with the majority's view that suppression was not needed to deter future knock and announce violations. Rather, Justice Breyer indicated that the "holding will seriously undermine deterrence in knock and announce cases." (47) In his view, "[o]fficers will almost always know ex ante that they can ignore the knock and announce requirement without risking the suppression of evidence discovered after their unlawful entry." (48) Clearly, there is disagreement among the members of the Supreme Court regarding the current state of law enforcement and its professionalism (or lack thereof) in this country.
The other emphasis in the dissent is that the knock and announce violation is inseparable from the search itself. While the majority concluded that there was no causation between the violation and the discovery of evidence, the dissent opined that the illegal entry and the subsequent search constituted one event and the improper entry tainted the entire search. Therefore, according to the dissent, the doctrine of inevitable discovery is not applicable in this situation, and none of the evidence discovered during the search should be admissible.
The requirement in this country for law enforcement officers to knock and announce before making entry is a very important matter. Indeed, the "requirement protects rights and expectations linked to ancient principles in our constitutional order." (49) It should go without saying that the Hudson "decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law's concern." (50) All law enforcement officers take an oath to uphold the Constitution of the United States (51) and not complying with the mandate to knock and announce violates that oath. This alone should serve to deter knock and announce rule violations. Additionally, constitutional violations give rise to costly lawsuits that could result in individual liability for the violator. Furthermore, law enforcement departments must continue to demonstrate that they are staffed by police professionals and that all violations of law are dealt with accordingly. In spite of other consequences flowing from a knock and announce violation, the Supreme Court has now ruled that suppression of evidence acquired by virtue of a valid search warrant, but preceded by a knock and announce violation, does not have to be one of them. While individual states may decide to legislate suppression as an appropriate remedy for knock and announce violations, the Hudson decision makes clear that the Constitution does not require the suppression.
(1) Mich. Comp. Laws Ann. [section] 333.7401(2)(a)(iv) (West 2001).
(2) Mich. Comp. Laws Ann. [section] 750.227b (West 2004).
(3) The statement of facts and procedural history were presented in an Amicus Curiae Brief submitted by the U.S. Solicitor General to the U.S. Supreme Court in support of the state of Michigan.
(4) 547 U.S. (2006). See 2006 WL 1640577.
(5) U.S. CONST. Amend. IV.
(6) Wilson v. Arkansas, 514 U.S. 927 (1995).
(8) Id. at 934.
(9) Id. at 935-936.
(11) Id. at 931-932, quoting Semayne's Case, 77 Eng.Rep. 194, 195-196 (K.B. 1603).
(12) Id. at 932.
(13) 520 U.S. 385 (1997).
(14) Id. at 388-390.
(15) Id. at 394 (emphasis added).
(16) Id. (emphasis added).
(17) Id. at 396.
(18) Id. (See, for example, State v. Arce, 730 P.2d 1260 (Ore. App. 1986), State v. Bamber, 630 So.2d 1048 (Fla. 1994)).
(19) 540 U.S. 31 (2003).
(20) Id. at 41.
(22) United States v. Banks, 282 F.3d 699 (9th Cir. 2002).
(23) Supra, note 4.
(24) 232 U.S. 383 (1914).
(25) Id. at 393.
(26) Id. at 398.
(27) 367 U.S. 643 (1961).
(28) Id. at 654-655.
(29) Id. at 657 (emphasis added).
(30) Id. at 660.
(31) Nix v. Williams, 467 U.S. 431 (1984).
(32) Id. at 443. See also, Murray v. United States, 487 U.S. 533, 537 (1988)(making reference to the almost indistinguishable notion of an "independent source" for the illegally obtained evidence).
(33) 125 S. Ct. 2964 (2005).
(34) People v. Stevens, 597 N.W.2d 53 (Mich. 1999), cert. denied, 528 U.S. 1164 (2000); People v. Vasquez, 602 N.W.2d 376 (Mich. 1999).
(35) United States v. Langford, 314 F.3d 892 (7th Cir. 2002), cert. denied, 540 U.S. 1075 (2003).
(36) State v. Lee, 821 A.2d 922 (Md. 2003).
(37) Mazepink v. State, 987 S.W.2d 648 (Ark.), cert. denied, 528 U.S. 927 (1999).
(38) United States v. Dice, 200 F.3d 978 (6th Cir. 2000).
(39) United States v. Marts, 986 F.2d 1216 (8th Cir. 1994).
(40) Supra, note 22.
(41) Supra, note 4.
(42) Hudson v. Michigan, 547 U.S. at ___ (2006). See 2006 WL 1640577 (page 4).
(43) Id. See 2006 WL 1640577 (page 5).
(44) Id. See 2006 WL 1640577 (page 12).
(46) Id. (emphasis added).
(47) Id. See 2006 WL 1640577 (Breyer, J., dissenting, page 24).
(48) Id. (emphasis added).
(49) Id. See 2006 WL 1640577 (Kennedy, J., concurring, page 1).
(51) U.S. CONST. art. 6 provides, in pertinent part, that "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
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.
By RICHARD G. SCHOTT, J.D.…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Knock and Announce Violations: No "Cause" to Suppress. Contributors: Schott, Richard G. - Author. Magazine title: The FBI Law Enforcement Bulletin. Volume: 75. Issue: 9 Publication date: September 2006. Page number: 25+. © 1999 Federal Bureau of Investigation. COPYRIGHT 2006 Gale Group.
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