No-knock warrants

The historical basis for no-knock warrants starts in England in 1603 when the Court of King’s Bench declared that sherriffs could only break into a house after announcing their purpose and requesting entry. In pre-constitutional America, individual states passed statutes requiring similar “knock-and-announce” rules.

 

A long history of court rulings on this subject has resulted in a common-law knock-and-announce rule (common laws are largely established from judicial rulings rather than statutes). Specific statutes that do exist largely codify the common law. While common laws are flexible to each situation, and specific statutes vary state to state, American courts have generally acknowledged three main exceptions to the knock-and-announce rule: (1) apprehension of peril, (2) useless gesture, and (3) destruction of evidence.

 

Apprehension of peril is a valid argument if the officers reasonably believe that announcing their entry will increase the risk of harm to themselves or others. A reasonable belief argument generally holds up when occupants are armed and being investigated for a violent crime.

 

Useless gesture is a valid argument when officers are “virtually certain” that occupants are already aware of their presence and purpose. Situations that qualify include the suspect knowing he is the subject of a police search, police seeing occupants observe them arrive, and the sound of people running from the door.

 

Destruction of evidence is a valid argument when officers have “reasonable cause to believe” announcing their presence would “endanger the successful execution of the warrant.” Situations that qualify vary widely from officers needing to have specific knowledge of destruction of evidence to a house having “normal plumbing facilities” in a case when officers are looking for flushable amounts of drugs.

 

No-knock warrants have become more common and less regulated throughout the history of their existence, despite the fact that they initially resulted in so much unnecessary violence that they were briefly banned. In 1970, during President Nixon’s War on Drugs, Congress gave federal magistrates (which are very similar to judges, but with more limited powers) the ability to issue warrants that specifically allowed federal officers to enter without knocking or announcing their presence or purpose. The law fell within the bounds of the common law, simply allowing pre-acknowledgment of exigent circumstances. No-knock warrants created a series of violent, chaotic entries that grabbed headlines, causing Congress to repeal the statute in 1974.

 

The issue came to the fore again in 1995 with Wilson v. Arkansas (1995), when the Supreme Court ruled that the knock-and-announce rule is a factor in determining the reasonableness of a search under the Fourth Amendment of the U.S. Constitution, which protects against “unreasonable searches and seizures.” This ruling ultimately means that “in some circumstances an officer's unannounced entry into a home might be unreasonable under the Fourth Amendment.” The Supreme Court left the determination of these circumstances to the lower courts, but did specify that the Fourth Amendment does not mandate announcement before every search. Basically, an unannounced search can be constitutional or unconstitutional, depending on the situation. We have arrived, yet again, at the common law interpretation.

 

In Richards v. Wisconsin (1997), the Supreme Court gave state magistrates the power to issue no-knock warrants. 43 states, DC, and the federal government have knock-and-announce rules, imposed either by statute or judicial decision. Even where there are specific statutes, courts generally view them as codifications of the common law, even when they don’t explicitly state common-law exceptions. Some states have statutes that explicitly give state magistrates the power to issue no-knock warrants, others allow it without statutory authority because it falls into what is already allowed within the exceptions of the knock-and-announce rule. Only Florida, Virginia, and Oregon expressly prohibit the issuance of no-knock-warrants.

 

In Hudson v. Michigan (2006), the Supreme Court ruled evidence found in violation of the knock-and-announce rule is not required to be suppressed. This ruling eliminated the main incentive to stay within the bounds of the common-law exceptions when entering a home without knocking and announcing.

 

Throughout this timeline, no knock warrants have become alarmingly common, and their application clearly affects minorities disproportionately. Occurrence of no-knock warrants has increased from about 1,500 per year in the early ‘80s, to 40,000 per year around 2000, to 60,000-70,000 around 2010, according to Eastern Kentucky University School of Justice Studies professor Peter Kraska. As of 2014, 42% of people affected by no-knock warrants were Black, even though black people only made up 13% of the US population. At least 94 civilians and 13 law enforcement officers were killed in no-knock raids between 2010 and 2016, and many more were seriously injured.

 

Exploring the disconnect which allows a legal practice to be fairly blatantly racist and dangerous is easiest when deconstructing a specific example, the most well-known of which is Breonna Taylor’s death in Louisville, Kentucky in 2020. The details which are relevant to this discussion are that three police officers entered Taylor’s apartment at around 12:30 am, where she was in bed with her boyfriend, Kenneth Walker. Taylor and Walker got up when they heard banging on the door and called out asking who was there, to no reply. Walker, not knowing the intruders were police, fired one shot at the men entering the apartment. He was licensed to carry a weapon. All three officers returned fire, shooting a total of 32 rounds, 6 of which hit Taylor, killing her. The police officers claimed they announced their presence, but a recorded 911 call from immediately after the incident includes Walker saying “I don’t know what’s happening…. Someone kicked in the door and shot my girlfriend.”

 

People across the country were appalled that a grand jury could fail to charge any of these three officers with homicide. When law starts to diverge from common sense, it is critical to determine why, and decide how to fix the discrepancy.

 

In Kentucky, police officers are subject to the same self-defense rules as ordinary civilians, except they are sometimes allowed to initiate violence. For example, officers are allowed to physically apprehend people, something that would likely result in assault charges if a civilian did it. Additionally, because of the Supreme Court ruling in County of Los Angeles v. Mendez, officers can claim self-defense even if their actions were unsafe or likely to provoke violence.

 

At the same time, Kentucky residents are allowed to use lethal force against home intruders (“the Castle Doctrine”). That rule does not apply when a resident is aware the intruders are police officers. The officers claim they announced their presence; Walker says they did not.

 

With a no-knock warrant to search Taylor’s apartment, the officers were allowed to be there. Due to the Castle Doctrine, Walker had the right to protect himself against home intruders. Kentucky’s police self-defense rules gave the officers the authority to respond with equal force, even though they were the ones to instigate. A deadly event transpired, in which both parties defended themselves, but there was technically no legal aggressor. While this case is particular to Kentucky, very similar legal setups exist in most states.

 

That’s the “determining why” part of responding to law diverging from common sense. Professor Colin Miller (University of South Carolina School of Law) points to the “fixing the discrepancy” part: “I just don’t know if there’s any realistic way you can continue to have no-knock warrants in a jurisdiction that has the Castle Doctrine and Stand Your Ground. It seems incompatible.” All of the US except Vermont and DC follow the Castle Doctrine. Ending no-knock warrants is the first step toward fixing this discrepancy and preventing unnecessary violence whose legality contradicts basic common sense.

Sources (click to expand)

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