Time: Mon Jul 28 22:43:49 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id VAA01735; Mon, 28 Jul 1997 21:23:22 -0700 (MST) by usr03.primenet.com (8.8.5/8.8.5) with SMTP id VAA26475; Mon, 28 Jul 1997 21:21:14 -0700 (MST) Date: Mon, 28 Jul 1997 21:20:33 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: FBI Instructor On: Knock and Announce: A 4th Amendment Standard (fwd) <snip> > >>Subject: FBI Instructor On: Knock and Announce: A Fourth Amendment Standard >> >>[Note from Matthew Gaylor: This article appears in the May, 97' issue of >>the Federal Bureau of Investigations publication The FBI Bulletin: See >> >> http://www.fbi.gov/leb/may976.htm] >> >> >>Knock and Announce: A Fourth Amendment Standard >> >>By Michael J. Bulzomi, J.D. >> >>The Supreme Court requires that officers "knock and announce" before >>executing warrants, except where certain exigent conditions exist. >> >>Special Agent Bulzomi is a legal instructor at the FBI Academy. >> >>In Wilson v. Arkansas,1 decided in 1995, a unanimous Supreme Court held for >>the first time that whether police "knock and announce" their presence >>before executing valid search warrants is part of the Fourth Amendment >>inquiry into the reasonableness of a search. This article discusses the >>Wilson decision and its practical impact on law enforcement entry to >>premises. The article offers advice on how law enforcement agencies should >>structure their "no-knock" and "dynamic entry" search and seizure policies >>and practices to ensure they meet constitutional standards of >>reasonableness. An unconstitutional entry may result in the suppression of >>evidence and possible civil liability. >> >>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 sei-zures >>implicity embraces the common law principle that law en-forcement officers >>should announce their purpose and authority before forcibly entering an >>individual's home.3 >> >>Knock and Anounce 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 appre-hension 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 defendant11 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.16 >> >>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 pur- pose 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 back-lit, 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. >> >>CONCLUSION >> >>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. >> >>Endnotes >>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). > <snip> ======================================================================== Paul Andrew Mitchell : Counselor at Law, federal witness B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
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