No Knock, No Problem?

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and Control Act, which authorized the use of no-knock warrants.[2]  After seeing the dangers of this method, Congress repealed the law in 1974.[3]  The Supreme Court, however, has ruled that in some circumstances, knocks are not necessary.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

For an interesting summarization and facts of no-knock policies, click here.

By Photo by US Army (http://www.cid.army.mil/) [Public domain], via Wikimedia Commons.

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[1]U.S. Const. amend. IV.

[2] Robert J. Driscoll, Unannounced Police Entries and Destruction of Evidence After Wilson v. Arkansas, 29 Colum. J.L. & Soc. Probs. 1, 1 (1995).

[3]Id. at 2.