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Date: Mon, 28 Jul 1997 21:20:33 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: FBI Instructor On: Knock and Announce: A 4th Amendment 
  Standard (fwd)

>>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.
>>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
>>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.
>>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.
>>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.
>>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
>>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.
>>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
>>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.

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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