§ 10.04 EXECUTION OF SEARCH WARRANTS

• Jurisdiction: United States

§ 10.04. Execution of Search Warrants⁸⁹

[A] In Anticipation of Execution

In the ordinary course of events, the police will obtain a search warrant and then proceed to the site of the search and execute it according to the principles laid out in this chapter section. On occasion, however, the police may find themselves in a situation in which an exigency justifying an immediate warrantless search does not yet exist,⁹⁰ but in which they have reason to fear that such an exigency will develop while they apply for the warrant. In such circumstances, the police may wish to cordon off the area in anticipation of securing the warrant. Such an action, however, may itself constitute a warrantless seizure of the property in question.

For example, in Illinois v. McArthur,⁹¹ police officers had probable cause to believe that M had hidden illegal drugs in his trailer home. They went to M's home and asked for permission to search it, but M refused. One officer immediately sent a second officer to apply for a search warrant. In the meantime, M had left his trailer and was standing on the porch. The officer informed him that, until a warrant was obtained, M could not reenter his trailer unaccompanied by an officer. During the wait for the warrant, M reentered his home to get cigarettes and make telephone calls, but each time the officer stood guard just inside the door. Two hours later, warrant in hand, the police searched the trailer and discovered the contraband.

The Court upheld the police action here. Although the Court said that in "the ordinary case" a warrantless seizure of personal property, just like a warrantless search, is unreasonable, the Court believed that the warrantless temporary seizure of the premises here was reasonable.⁹² The Court pointed to the following cumulative circumstances: (1) the police had probable cause to conduct the search for contraband; (2) the police "had good reason to fear that, unless restrained, [ M] would destroy the drugs"; (3) "the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy" (e.g., they avoided significant intrusions into the house until the warrant was obtained); and (4) the length of time of the restraint was limited.

McArthur is a narrow opinion and does not justify all anticipatory warrantless seizures of personal premises. But a temporary seizure, supported by probable cause, "designed to prevent the loss of evidence while the police diligently obtain[] a warrant in a reasonable period of time" is permissible.

[B] Time of Execution

Some jurisdictions, by statute or rule of procedure, require that search warrants be executed within a specified period of time, often within 10 days or two weeks,⁹³ from the date that the warrant was signed by the magistrate. This rule reduces the risk that the justification for the search—the basis for the finding of probable cause—will become stale.

Some jurisdictions bar nighttime execution of warrants, "unless the judge, for good cause, expressly authorizes" the nighttime execution.⁹⁴ The Supreme Court has approved non-exigent nighttime warrant executions,⁹⁵ but only as a matter of statutory interpretation, without expressly addressing whether such an approach is constitutionally reasonable.

[C] Means of Entry

[1] Knock-and-Announce Rule

At common law, absent special circumstances, an officer was not permitted to enter a home forcibly to execute a warrant, unless he knocked at the door (or otherwise indicated his presence), identified himself as an officer, stated his purpose for entering, requested admittance, and was refused admission.

In Wilson v. Arkansas,⁹⁶ the Supreme Court, per Justice Clarence Thomas, unanimously held that the common law knock-and-announce "principle forms a part of the reasonableness inquiry under the Fourth Amendment." Justice Thomas stated that this common law rule "was woven quickly into the fabric of early American law," because most states that ratified the Fourth Amendment also enacted statutes or constitutional provisions incorporating English common law. History, therefore, "leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering."

In Hudson v. Michigan,⁹⁷ the Court identified three interests protected by the knock-and-announce rule. First, the rule protects "human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident." Second, the rule protects property by giving someone whose home will be searched the opportunity to open the door and thereby avoid damage to the home that could result from a forcible entry. Third, the rule "protects those elements of privacy and dignity that can be destroyed by a sudden entrance," for example by giving a person the opportunity to put on some clothes or to get out of bed.

Justice Breyer, dissenting for four members of the Hudson Court, objected that this list did not "fully describe the constitutional values, purposes and objectives underlying the knock-and-announce requirement."⁹⁸ The knock-and-announce rule, no less than the warrant requirement, Justice Breyer argued, offers "special protection for the privacy of the home" by assuring "that government agents will not enter . . . without complying with [rules] that diminish the offensive nature of any such intrusion."

As explained elsewhere in the Text,⁹⁹ the Supreme Court ruled in Hudson that the Fourth Amendment exclusionary rule does not apply to evidence discovered as the result of a search conducted in violation of the knock-and-announce rule if the search was otherwise authorized by a valid warrant. According to the Hudson dissent, this ruling, "by destroy[ing] the strongest legal incentive to comply with the Constitution's knock-and-announce requirement[,] . . . weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection."

[2] Exceptions to Rule

The knock-and-announce rule is qualified; there are exceptions to the requirement. Justice Thomas, in Wilson v. Arkansas,¹⁰⁰ did not provide a comprehensive list of circumstances in which no-knock entries are permitted, choosing instead to leave the matter initially to lower courts for determination. Nonetheless, he cited cases that have acknowledged the authority of the police to enter without notice: (1) "under circumstances presenting a threat of physical violence"; (2) in hot-pursuit cases ("in cases where a prisoner escapes . . . and retreats to his dwelling"): (3) and, of most frequent relevance, "where police officers have reason to believe that evidence would likely be destroyed if advance notice were given."

Although the Supreme Court has avoided case-by-case adjudication in various other Fourth Amendment realms, the Court has determined that, in applying the exceptions to the knock-and-announce rule, case-by-case analysis is required. That is, the police are not permitted to justify their failure to satisfy the knock-and-announce requirements by simply categorizing a case as, for example, a drug investigation.¹⁰¹ As the Court explained in Richards v. Wisconsin,¹⁰² "[i]f a per se exception were allowed for each category of criminal investigation that included a considerable—albeit hypothetical — risk of danger to officers...