“No Knocks” are in the news following the Breonna Taylor shooting case. What is a “No Knock” warrant and when/how are they legal under federal constitutional law? One of my favorite topics. By favorite I mean that if I was a middle eastern dictator they would flow freely. This has been in the news now following the Breonna Taylor case. I’ll offer some analysis on that case, and also answer other civil rights constitutional law questions, if you have any – since this is LIVE.
Podcast version (audio only):
“No Knock” Warrants and Civil Rights Q&A – FIS Live Ep. 16 – thecivilrightslawyer.com – Freedom is Scary
Searches and Seizures in the Home and No-Knock Warrants, i.e., the “Knock and Announce” Requirement, Generally:
In the Home: No Warrant? Presumptively Illegal: Searches and seizures which take place in a person’s home are presumptively unreasonable, which means they are illegal by default according to the Fourth Amendment. On the other hand, outside a person’s home, Fourth Amendment protections only apply where there is a “reasonable expectation of privacy.”
Outside the Home: No Warrant? No Need unless REP: To the contrary, the U.S. Supreme Court has found that no presumption exists outside the home, because a person does not have a reasonable expectation of privacy for most “places” outside one’s own home. These unprotected “places” include bank accounts, curbside trash, “open fields,” surrounding one’s home, and so on.
Search of home with a warrant: presumptively legal: So since the inverse is true, all searches of a home, made pursuant to a warrant are presumptively reasonable. The standard for a warrant requires only that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” It is still a requirement, obviously, that police officers tell the truth when they make their search warrant applications. If it is discovered that false information was intentionally provided to the magistrate, the warrant will be fraudulent, and therefore ineffective. At which point, we’re back to the search being presumptively unreasonable. During the execution of a lawfully-obtained search warrant, officers may temporarily seize the inhabitants of the structure being searched, including handcuffing them.
There is a default “knock and announce” requirement under the Constitution, though it frequently is ignored. Can officers make, or apply, for a no knock entry just b/c the homeowner has a CCW? Check out the 4th Circuit case out of West Virginia, Bellotte v. Edwards (4th Cir. 2011), authored by Judge Wilkinson. Judge Gregory was also on the panel:
The knock-and-announce requirement has long been a fixture in law. Gould v. Davis, 165 F.3d 265, 270 (4th Cir. 1998). Before forcibly entering a residence, police officers “must knock on the door and announce their identity and purpose.” Richards v. Wisconsin, 520 U.S. 385, 387 (1997)….
“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards, 520 U.S. at 394. The Supreme Court has admonished that “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.” Id. We have thus required a particularized basis for any suspicion that would justify a no-knock entry. See United States v. Dunnock, 295 F.3d 431, 434 (4th Cir. 2002)…..
Of course, the absence of a no-knock warrant “should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.” Richards, 520 U.S. at 396 n.7. But where, as here, the officers faced no barrier at all to seeking no-knock authorization at the time they obtained a warrant, “a strong preference for warrants” leads us to view their choice not to seek no-knock authorization with some skepticism. United States v. Leon, 468 U.S. 897, 914 (1984)….
To permit a no-knock entry on facts this paltry would be to regularize the practice. Our cases allow officers the latitude to effect dynamic entries when their safety is at stake, but the Fourth Amendment does not regard as reasonable an entry with echoes, however faint, of the totalitarian state…..
It should go without saying that carrying a concealed weapon pursuant to a valid concealed carry permit is a lawful act. The officers admitted at oral argument, moreover, that “most people in West Virginia have guns.” Most importantly, we have earlier rejected this contention: “If the officers are correct, then the knock and announcement requirement would never apply in the search of anyone’s home who legally owned a firearm.” Gould, 165 F.3d at 272; accord United States v. Smith, 386 F.3d 753, 760 (6th Cir. 2004); United States v. Marts, 986 F.2d 1216, 1218 (8th Cir. 1993). We recognized over a decade ago that “[t]his clearly was not and is not the law, and no reasonable officer could have believed it to be so.” Gould, 165 F.3d at 272.Bellotte v. Edwards (4th Cir. 2011).