Fourth Amendment - must police knock and announce themselves before kicking in the door of a house?

Author:Josephson, Mark
Position:Supreme Court Review
 
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  1. INTRODUCTION

    In Wilson v. Arkansas,(1) the United States Supreme Court addressed the question of whether an unannounced entry by police armed with a search warrant violates the Fourth Amendment.(2) This question had been left unanswered for over thirty years since the Court's ambiguous plurality decision in Ker v. California in 1963.(3) The Court in Wilson answered the question tentatively, holding that under some circumstances an unannounced entry by police acting under the authority of a search warrant will violate the Fourth Amendment.(4) The Court's holding was based entirely on historical grounds. After reviewing the history of the knock-and-announce rule,(5) the Court held that police failure to announce their authority and purpose prior to a forced entry is merely a factor in a Fourth Amendment reasonableness determination.(6)

    This Note argues that the Court should have held that unannounced entries are presumptively unreasonable under Fourth Amendment standards. Police should be allowed to enter a home only when they know that the occupants are already aware of the officers' authority and purpose, or when there is a reasonable suspicion, based on specific articulable facts, that an announced entry would result in danger to the officers or destruction of evidence. After examining the history and purposes of the knock-and-announce rule, this Note asserts that the Court improperly relied only on a historical analysis in its decision. By balancing the state s interest in unannounced entries against the occupants Fourth Amendment interests, this Note concludes that the proposed rule would better protect the interests served by the knock-and-announce rule.

  2. BACKGROUND

    1. THE FOURTH AMENDMENT

      1. The Origins of the Fourth Amendment

        The Fourth Amendment was adopted as a response to the abusive search and seizure practices used by the British government during the American colonial period.(7) The colonists were particularly concerned about broad, unparticularized searches performed under the authority of general warrants.(8) General warrants authorized searches for persons or papers not named specifically in the warrant. The British government used general warrants in both England and America. In England, general warrants were widely used to suppress seditious publications.(9) One particularly influential incident involved the North Briton, a series of pamphlets criticizing government policies published anonymously by John Wilkes, a member of Parliament.(10) After a particularly critical issue of the pamphlet was published, the Secretary of State issued a general warrant to search for the people who published the pamphlets.(11) Wilkes and others who had been searched and arrested challenged the warrant issued against them.(12) In Wilkes v. Wood, the King's Bench held the warrant illegal.(13)

        In colonial America, general warrants were used to ferret out smugglers.(14) These warrants, called writs of assistance, were issued to customs officials by the colonial courts.(15) Writs of assistance commanded all subjects of the Crown to assist the officer executing the writ.(16) The writs authorized customs officials and their subordinates to search anywhere they thought smuggled goods would be hidden and to break open containers suspected of holding smuggled goods.(17) A customs official possessing a writ of assistance had "practically absolute and unlimited" discretion as to how the writ could be executed.(18) A particularly offensive feature of these writs was that they served as permanent search warrants, effective until six months after the death of the reigning sovereign.(19) These writs inspired resentment through out the colonies,(20) and after the revolution, seven states enacted constitutional prohibitions against general warrants.(21)

        Although these abuses were the primary targets of the Framers of the Fourth Amendment,(22) the congressional debates on the Fourth Amendment clearly demonstrate that the focus of the Amendment extended beyond general warrants.(23) As originally proposed in Congress, the Fourth Amendment only protected against general warrants.(24) However, during the debates on the Amendment, objections to the narrow focus of the Amendment's protections were raised, and the Amendment's final text contained a clause protecting against any unreasonable search.(25)

        This history has persuaded the Supreme Court to recognize that the Fourth Amendment's Unreasonable Search Clause protects rights beyond those protected by the Warrant Clause.(26) Thus, the Court has interpreted the Unreasonable Search Clause to apply even to searches made with a warrant.(27)

      2. The Reasonableness Standard

        The standard of reasonableness, based on the Unreasonable Search Clause, has emerged as the primary test of whether a given search is constitutional under the Fourth Amendment.(28) The reasonableness standard first surfaced in the Court's Fourth Amendment cases of the late 1940s and early 1950s, such as United States v. Rabinowitz,(29) where the Court used reasonableness to determine the proper scope of a search incident to an arrest. However, the Court did not fully develop the doctrine until Camara v. Municipal Court(30) and Terry v. Ohio,(31) where the Court used reasonableness to fashion broad exceptions to the warrant requirement. Most cases invoking the reasonableness standard have involved warrantless searches and seizures, but the Court also applies the standard to cases involving valid warrants.(32)

        The reasonableness standard balances a state's legitimate governmental interests against the extent to which a questioned practice intrudes upon an individual's Fourth Amendment interests.(33) Reasonableness is determined based on the facts known to the police at the time the intrusion occurs.34 In evaluating the legitimacy of the governmental interests involved, the Court considers the degree to which law enforcement will be hindered if a practice is not allowed.(35) The Court may also look to prevailing rules in individual jurisdictions and the historical pedigree of a practice to determine reasonableness.(36) While the Court will not merely rubber stamp a practice because it is long established, a "clear consensus among the States" is carefully considered by the Court.(37) Likewise, the judgment of Congress that a practice is reasonable also carries weight with the Court.(38)

    2. THE PURPOSES OF THE KNOCK-AND-ANNOUNCE REQUIREMENT

      Like the Fourth Amendment, the knock-and-announce rule protects the security, privacy, and property interests of people in their homes. The knock-and-announce rule requires that police officers give notice of both their authority and purpose to the occupants of a residence to be searched.(39) Before breaking and entering the premises to search, officers must also give the occupants a reasonable opportunity to voluntarily allow the police to enter.(40) Police officers must follow the knock-and-announce rule regardless of whether they have a warrant, because the knock-and-announce rule serves several important purposes.(41)

      First, the rule reduces the risk of violence during a police entry. A forced, unannounced entry is "conducive to a violent confrontation between the occupant and individuals who enter his home without proper notice."(42) Unannounced entries put the officers involved at risk of being shot by frightened homeowners.(43) Moreover, the rule also reduces the risk to innocent persons who may be in the house at the time of the search.(44) Second, the rule protects the privacy interests of the occupants of the house.(45) Although there is obviously no right to refuse entry to an officer armed with a valid search warrant,(46) the occupants of a house to be searched have a privacy interest in activities not subject to the warrant.(47) Additionally, making the police request entry minimizes the possibility of a forced entry into the wrong home,(48) and legitimizes the intrusion.(49) Third, requiring police to knock and announce before forcibly entering a residence protects the homeowner's property interests.(50) A person should be given the opportunity to voluntarily submit to a search before having his property damaged.(51) When there is no property damage,(52) courts tend to be more lenient towards police noncompliance with the announcement rule.(53)

      HISTORICAL OVERVIEW OF THE KNOCK-AND-ANNOUNCE RULE

      1. English Common Law Predecessors

        The common law knock-and-announce rule was first judicially recognized in 1603.(54) In Semayne's Case, the Court of King's Bench stated:

        In all cases when the King is party, the sheriff (if the doors be not open) may

        break the party's house, either to arrest him, or to do other execution of the

        K[ing]'s process, if otherwise he cannot enter. But before he breaks it, he ought

        to signify the cause of his coming, and to make request to open doors . . . for

        the law without default in the owner abhors destruction or breaking of any

        house (which is for the habitation and safety of man) by which great damage

        and inconvenience might ensue to the party, when no default is in him; for

        perhaps he did not know of the process, of which, if he had nonce, it is to be

        presumed that he would obey it, ....(55)

        The broad holding of Semayne's Case was adopted by the foremost English treatise writers of the period.(56) While there was argument among the treatise writers over the circumstances in which doors could be broken at all,(57) there was no disagreement over the rule that when doors were to be broken, even on a warrant for a felony, announcement was a precondition to the breaking.(58) The rule was also present in books intended for those executing such warrants.(59) The presence of announcement requirements in these books strongly suggests that announcement was a widespread practice at common law during the Eighteenth Century.

        The first reported application of the announcement requirement in a criminal case was in Curtis' Case.(60) In that case...

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