The Voice has always been an important benefit of this organization. Back in 2007, I submitted my first article for publication to the Voice. It addressed the presentment requirement of search warrants as applied to search for blood.1
Now, 13 years after my first article – and along with many other Americans, I’m certain – I find myself contemplating more and more another topic related to search warrants: no-knock warrants. The requirement has long been a part of history even before Justice Thomas authored the opinion for a unanimous SCOTUS in Wilson wherein he wrote: “At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.”
Wilson v. Arkansas, 514 U.S. 927, 929 (1995). The case involved a search warrant based on information from a confidential informant. Police had information that the target had previously been convicted of arson and firebombing and also that he had threatened the confidential informant with a semiautomatic weapon. Police officers announced entry contemporaneous with, rather than prior to, entry in this case. The SCOTUS ultimately reversed and remanded the case to the Arkansas Supreme Court to address whether evidence of potential danger to law enforcement and destruction of evidence justified the failure of law enforcement to announce their presence prior to breaching the door.
Thus, since 1995, the knock and announce requirement is part of the reasonableness inquiry of a Fourth Amendment analysis. But now, especially given all the recent events, the question is: does the ever-increasing cost of no-knock warrants outweigh their potential benefits?
The scene in executing these no-knock warrants is often the same – an arsenal of police in military-type tactical gear (versus typical patrol uniforms that we are all used to) load up under the cover of darkness and surround the target house often giving hand signals to communicate. To anyone watching, they appear ready for war. Then, when the signal is given, they breach entry with some sort of battering ram, again under the cover of darkness, throw flashbangs while simultaneously screaming commands, and storm the location with guns drawn and shields up. The occupants are often sleeping, and there are frequently noninvolved people – sometimes kids and/or elderly – present at the location. They are awoken or interrupted suddenly by the sounds of flashbangs and screaming. Through an open interior door, the occupants may see smoke and guns pointed at them. Predictably, panic and chaos often ensue, and gunfire is often exchanged.
In my experience and reading, these no-knock warrants are typically employed in drug raids. Certainly, the same concerns that existed in Wilson as justifications for the failure of the police to announce their presence will exist in the execution of a warrant in virtually every drug (and every other criminal) case. The consideration, then, has to be is it worth the risk. Is it worth the risk to any one law enforcement life? Is it worth the risk of life to the sometimes completely innocent occupant? Importantly, to answer the question, we must acknowledge that “it” is most frequently a covert drug bust. The problem is further compounded by the fact that Texas is a proud “stand your ground” state. Gunfire, or the sound of gunfire, will often predictably be met with the return of gunfire. Is the risk of harm really worth it? Not a chance.
Just search “no-knock warrants” and you will find that many police departments in Texas are now suspending or severely limiting the use of no-knock warrants for precisely this reason. And, in June, Kentucky Senator Rand Paul introduced the Justice for Breonna Taylor Act to prohibit no-knock warrants at the federal level and for states or any local law enforcement agency that receives funding from the Department of Justice.2 What harm will it actually do to eliminate or severely restrict the use of no-knock warrants like many police departments and legislation propose? None. The warrants will still be executed, police will still come prepared, and people will still be arrested. The risk isn’t worth it.
And finally, although our country is clearly divided, let us not become so. Let us embrace the differences in each other and let us remember that whatever our differences may be, we stand united because we all are criminal defense lawyers.
Peace on earth and goodwill to all.
P.S. – A huge thank you to all those committees and individuals who have committed to contribute to the Voice. Your thoughtful contributions are what continue to propel the success of this publication.