Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment’s “general touchstone of reasonableness . . . governs the method of execution of the warrant.” 1 Until recently, however, most such issues have been dealt with by statute and rule.2 It was a rule at common law that before an officer could break and enter he must give notice of his office, authority, and purpose and must in effect be refused admittance,3 and until recently this has been a statutory requirement in the federal system4 and generally in the states. In Ker v. California,5 the Court considered the rule of announcement as a constitutional requirement, although a majority there found circumstances justifying entry without announcement.

In Wilson v. Arkansas,6 the Court determined that the common law “knock and announce” rule is an element of the Fourth Amendment reasonableness inquiry. The rule is merely a presumption, however, that yields under various circumstances, including those posing a threat of physical violence to officers, those in which a prisoner has escaped and taken refuge in his dwelling, and those in which officers have reason to believe that destruction of evidence is likely. The test, articulated two years later in Richards v. Wisconsin,7 is whether police 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.” In Richards, the Court held that there is no blanket exception to the rule whenever officers are executing a search warrant in a felony drug investigation; instead, a case-by-case analysis is required to determine whether no-knock entry is justified under the circumstances.8 Similarly, if officers choose to knock and announce before searching for drugs, circumstances may justify forced entry if there is not a prompt response.9 Recent federal laws providing for the issuance of warrants authorizing in certain circumstances “no-knock” entries to execute warrants will no doubt present the Court with opportunities to explore the configurations of the rule of announcement.10 A statute regulating the expiration of a warrant and issuance of another “should be liberally construed in favor of the individual.” 11 Similarly, just as the existence of probable cause must be established by fresh facts, so the execution of the warrant should be done in timely fashion so as to ensure so far as possible the continued existence of probable cause.12

Footnotes

1

United States v. Ramirez, 523 U.S. 65, 71 (1998).

2

Rule 41(c), Federal Rules of Criminal Procedure, provides, inter alia, that the warrant shall command its execution in the daytime, unless the magistrate “for reasonable cause shown” directs in the warrant that it be served at some other time. See Jones v. United States, 357 U.S. 493, 498–500 (1958); Gooding v. United States, 416 U.S. 430 (1974). A separate statutory rule applies to narcotics cases. 21 U.S.C. § 879(a).

3

Semayne’s Case, 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604).

4

18 U.S.C. § 3109. See Miller v. United States, 357 U.S. 301 (1958); Wong Sun v. United States, 371 U.S. 471 (1963).

5

374 U.S. 23 (1963). Ker was an arrest warrant case, but no reason appears for differentiating search warrants. Eight Justices agreed that federal standards should govern and that the rule of announcement was of constitutional stature, but they divided 4-4 whether entry in this case had been pursuant to a valid exception. Justice John Harlan who had dissented from the federal standards issue joined the four finding a justifiable exception to carry the result.

6

514 U.S. 927 (1995).

7

520 U.S. 385, 394 (1997).

8

The fact that officers may have to destroy property in order to conduct a no-knock entry has no bearing on the reasonableness of their decision not to knock and announce. United States v. Ramirez, 523 U.S. 65 (1998).

9

United States v. Banks, 540 U.S. 31 (2003) (forced entry was permissible after officers executing a warrant to search for drugs knocked, announced “police search warrant,” and waited fifteen to twenty-five seconds with no response).

10

In narcotics cases, magistrates are authorized to issue “no-knock” warrants if they find there is probable cause to believe (1) the property sought may, and if notice is given, will be easily and quickly destroyed or (2) giving notice will endanger the life or safety of the executing officer or another person. 21 U.S.C. § 879(b). See also D.C. Code, § 23-591.

11

Sgro v. United States, 287 U.S. 206 (1932).

12

Sgro v. United States, 287 U.S. 206 (1932).