The Fourth Amendment of the United States Constitution
protects citizens from unreasonable searches and seizures.[1] Traditionally, the common law doctrine
governing the reasonableness of police searches of private homes required
officers to knock and announce their presence,
giving the owner opportunity to answer.
This rule was adopted to limit unnecessary destruction of forced entry
into private homes. In 1970, Congress passed the Comprehensive
Drug Abuse, Prevention, and Control Act, which authorized the use of no-knock
warrants.[2] After seeing the dangers of this method,
Congress repealed the law in 1974.[3] The Supreme Court, however, has ruled that in some circumstances, knocks are not necessary. No-knock searches can be performed with a
warrant authorizing entry without announcement. If a warrant does not authorize entry without
announcement, then a court must consider that when analyzing the reasonableness of a search.
There is a long line of case history, starting with Wilson v. Arkansas, in which the Supreme
Court has held “no-knock” searches to be reasonable. The rationale for these cases is based on the
Court’s belief that when there is a threat of physical violence, or a threat of
evidence destruction,
the police need the element of surprise.
The Court acknowledges that the standard for showing a knock is not
necessary is incredibly low; police must only show a reasonable suspicion that one of the grounds for a no-knock search exists.
Since the 1980’s, the annual number of no-knock searches has
skyrocketed. Up from an average of 2,000
to 3,000 searches per year in the mid-1980’s, there are now between 70,000 to 80,000 unannounced home raids annually. These no-knock procedures have been increasingly
scrutinized by the media and public
because of the unpleasant and sometimes fatal outcomes the searches bring. The idea of a surprise search has been debated
for decades. Critics are revitalizing
the fight against these types of searches, arguing that expansive self-defense
laws, such as “Make My Day” (Colorado) or “Stand Your Ground” (Florida) laws
give home owners seconds to make life altering decisions.
In 1999, Denver police conducted a no-knock search on the
home of Ismael Mena, who was killed
during the search. The shooting was ultimately ruled justified, because Mena was holding a gun when shot, but the
investigation into his death revealed police were searching the wrong
residence. ACLU of Colorado Legal Director Mark Silverstein reported the warrant authorizing the unannounced entry suffered from major deficiencies, and lacked
requisite information establishing a need for the unannounced search. In reviewing this
case, Silverstein noted that no-knock searches can be potentially more
dangerous to police than announced entries.
There are forty-eight states that have some form of a “Castle Doctrine,”
permitting the use of force to protect one’s home. The
potential danger to police officers are home owners who think their home is
being invaded when the door is broken down in the middle of the night, without
any type of knock or announcement.
The story of Todd Bair,
from Ogden, Utah, illustrates how the no-knock search poses a danger to both
police and homeowners. Police burst into Bair’s unlit home under the cover of
night. Bair, believing his home was being invaded by
burglars, grabbed a golf club for protection.
The officers, seeing Bair’s club and misidentifying it as a sword, fired
three shots and killed Bair. If Bair had actually been armed with a
dangerous weapon, this incident could have been even more tragic.
The Supreme Court
recognizes the low burden for no-knock searches, because the Court indicates
that by granting this discretion to the police, the police are afforded greater
protection from physical danger and from the loss of evidence. Critics of this policy refer to the stories
of Mena and Bair as reasons why the procedure actually poses a danger to police. As a
result of allowing the police to enter a premise without alerting the homeowner
of what is happening, the police may cause a homeowner to feel like they are
the victim of a home invasion, sparking a range of responses from the homeowner.
If the ultimate question rests on the reasonableness of the
search, should consideration of the homeowner be included? When a door is broken down in the middle of
the night, is it reasonable because the police say so? Although the police action resulting in the
death of Menav and Bair was ruled justified, would the same be said if the
results were opposite? There is a long
line of Supreme Court precedent declaring unannounced, no-knock searches
Constitutional, and that does not seem likely to change, even though many
believe it is unreasonable to have a search conducted similar to a home
invasion.
Amber Wetzel
Senior Staffer, Criminal Law Practitioner
It would be interesting to know the statistics of the effectiveness (i.e, conviction rates) of no-knock cases as against announced searches. Also, what are the casualty statistics for both kinds of searches? While such statistics won't abrogate a citizen's right to bear arms (and protect him/herself), it might inform legislation, police procedures and judicial warrant guidelines to more adequately protect both police and citizen without a substantial adverse effect on evidence-gathering.
ReplyDeleteInterestingly enough, I have not found a study that directly compares the statistics of no-knock v. announced searches, in terms of convictions or causalities. The Cato Institute has released data on the number of "innocent" causalities and also the number of police injuries/causalities. Although the federal legislation was repealed in 1974, the Courts had already established precedent and continue to follow that reasoning allowing for no-knock searches.
ReplyDeleteCato information: http://www.cato.org/raidmap
You mean to tell me they don't kick doors down like they do in the movies? :)
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