Ten-second Bypass to Judicial Review: the Supreme Court of Nebraska Undermines the Knock-and-announce Rule in State v. Lammers

• Publication year: 2022

38 Creighton L. Rev. 97. TEN-SECOND BYPASS TO JUDICIAL REVIEW: THE SUPREME COURT OF NEBRASKA UNDERMINES THE KNOCK-AND-ANNOUNCE RULE IN STATE V. LAMMERS

Creighton Law Review

Vol. 38

INTRODUCTION

The law has long recognized that law enforcement officers executing a warrant to search a private residence are generally required to knock and announce their presence and authority before forcibly entering.(fn1) This notice requirement, commonly referred to as the "knock-and-announce rule," may have originated in the thirteenth century, but is often traced at least as far back as Semayne's Case in 1603, where the court required the sheriff as representative of the King to signify the cause of his coming and make a request to open the door.(fn2) In Wilson v. Arkansas,(fn3) the United States Supreme Court expressed little doubt the Framers intended an officer's method of entry to be a factor to consider in evaluating the reasonableness of a search, and held the knock-and-announce rule formed part of the Court's reasonableness inquiry of the Fourth Amendment of the United States Constitution.(fn4) However, the Wilson Court acknowledged the rule was not absolute and the presumption in favor of announcement could give way when circumstances demonstrated an announcement would be useless, dangerous, or inhibit an effective investigation.(fn5) From the beginning, courts have been called upon to balance the competing policy interests presented by the fundamental liberty interests of the individual and the interests of society in effective law enforcement.(fn6) As a result of the ongoing war on drugs and a general low regard for those involved in the drug culture, courts have increasingly been willing to allow police officers to disregard the knock-and-announce rule and invade the privacy rights of the individual.(fn7)

In State v. Lammers,(fn8) the Supreme Court of Nebraska determined that law enforcement officers' forced entry into Gregory Lammers' ("Lammers") home following a ten to twelve second wait after officers knocked-and-announced did not violate the Fourth Amendment of the United States Constitution or Article One of the Nebraska Constitution.(fn9) The court decided the totality of the circumstances supported the officers' reasonable suspicion that Lammers would destroy drug evidence.(fn10) Before trial, Lammers moved to suppress the drug evidence seized as a result of the search executed on his residence, alleging the search was unreasonable because the officers who executed the warrant failed to conduct a proper knock-and-announce before forcibly entering his home.(fn11) Under Nebraska Revised Statutes section 29-411, which codifies the knock-and-announce rule, officers executing a standard warrant may forcibly enter only if they are refused admittance after announcing their presence and purpose.(fn12) The Supreme Court of Nebraska affirmed Lammers' conviction, relying on the United States Supreme Court decision in United States v. Banks,(fn13) and decided refusal of admittance by an occupant was not determinative when evaluating the propriety of a search.(fn14) The court determined that the officers' delay of ten to twelve seconds before forcing entry into Lammers' home was reasonable because the totality of the circumstances supported a reasonable suspicion that Lammers would destroy drug evidence.(fn15) Specifically, the court determined the daytime execution of the search warrant, the small size of Lammers' house, the disposability of the drugs, and a second announcement justified forced entry.(fn16)

This Note will first examine the facts and holding of Lammers.(fn17) Next, this Note will review Nebraska Revised Statutes section 29-411.(fn18) This Note will then explore United States Supreme Court precedent regarding the knock-and-announce rule, and applications of that precedent by the Supreme Court of Nebraska and other courts.(fn19) This Note will then demonstrate the Supreme Court of Nebraska incorrectly decided a ten to twelve second wait following a knock-and-announcement satisfied the reasonableness requirement of the Fourth Amendment and its prohibition against unreasonable searches and seizures.(fn20) This Note will show the Lammers court ignored the purposes of the knock-and-announce rule and failed to balance fundamental individual liberty interests with law enforcement interests.(fn21) This Note will also demonstrate the Supreme Court of Nebraska improperly applied the reasonable suspicion test developed in Richards v. Wisconsin(fn22) by relying on the executing officers' general concerns regarding the destruction of evidence, rather than requiring particular facts supporting a reasonable suspicion of exigency.(fn23) Further, this Note will argue the Supreme Court of Nebraska erred in finding exigency in Lammers because the court found exigency based largely on the presence of contraband and general circumstances present in nearly all drug cases, even though the Richards Court rejected such a blanket rule as unconstitutional.(fn24) This Note will argue the Supreme Court of Nebraska improperly lowered the time required for an exigency to mature because the circumstances in Lammers presented no heightened exigency.(fn25) Finally, this Note will highlight how the Supreme Court of Nebraska's failure to appreciate the value of judicial review undermines the knock-and-announce rule and effectively reinstates an unconstitutional blanket exception to the knock-and-announce rule for drug cases.(fn26)

FACTS AND HOLDING

On March 4, 2002, Gregory Lammers ("Lammers") entered a bank in Fremont, Nebraska to make a deposit.(fn27) While completing his transaction at the teller window, Lammers removed items from his pocket.(fn28) Moments after Lammers left the bank, a bank employee found a corner of a plastic baggie containing a yellow, powdered sub-stance in nearly the same spot as Lammers had been standing.(fn29) Bank employees contacted the Fremont Police Department to investigate the possibility the bag contained drugs.(fn30) Testing later confirmed the baggie contained 3.2 grams of methamphetamine.(fn31)

Officer Shane Wimer ("Officer Wimer") of the Fremont Police Department continued the investigation, focusing on Lammers' residence in Fremont.(fn32) Between March 7 and March 21, 2002, Fremont police officers conducted three sanitation checks at Lammers' residence.(fn33) The officers found various items indicative of the use of controlled substances, including a glass bottle with burn residue, several pieces of aluminum foil, with and without burn residue, and several plastic bags with the corners cut off.(fn34) Officer Wimer stated in his affidavit that the bottle may have been used to smoke a controlled substance; aluminum foil is often used to ingest powdered controlled substances; and the baggie corners indicated the possible packaging of controlled substances for resale.(fn35) As part of the investigation, Officer Wimer also conducted a criminal history of Lammers and discovered Lammers' prior arrests for possession of a controlled substance, possession of methamphetamine, and possession of drug paraphernalia.(fn36)

Based on his investigation, Officer Wimer secured a daytime knock-and-announce search warrant from the Dodge County Court.(fn37) On March 22, 2002, Officer Wimer and several other officers executed the warrant at approximately ten minutes after 7:00 a.m.(fn38) Prior to their arrival at Lammers' residence, Officer Wimer advised Officer Stuart Nadgwick ("Officer Nadgwick") to wait eight seconds after the first knock-and-announce.(fn39) Officer Wimer testified on cross-examination that as a supervisor, he instructed officers to wait eight seconds after a knock-and-announce before repeating the knock-and-announce and ramming the door.(fn40) Having chosen eight seconds in advance, Officer Wimer testified the size of Lammers' house had no bearing on his decision to force entry after eight seconds.(fn41)

Upon arrival, Officer Nadgwick knocked on the door, yelled "Police Department, search warrant!" then counted "one-thousand-one, one-thousand-two," and so on, until reaching the count of eight.(fn42) After knocking and announcing a second time and hearing no activity in the house, Officer Nadgwick called for another officer to force entry with a battering ram.(fn43) Officer Wimer and Officer Nadgwick testified that a total of ten to twelve seconds elapsed between the first announcement and the use of the ram.(fn44) Upon entry, Officer Nadgwick observed Lammers in street clothes about seven to eight feet away from the door.(fn45) Officer Wimer also testified he thought ten to twelve seconds was enough time to answer the door in a small, two-bedroom home, and that he was concerned a longer wait could have resulted in Lammers destroying evidence.(fn46) Officer Wimer stated because people in past cases had disposed of evidence by flushing it down the toilet,he concluded the ten to twelve second wait was sufficient in Lammers' case.(fn47)

As a result of the search, the police seized approximately 80 grams of methamphetamine and over $8,500.00 in cash.(fn48) Consequently, the State charged Lammers with one count of possession of methamphetamine with the intent to deliver.(fn49) Lammers filed a motion to suppress the drug evidence seized as a result of the warrant, alleging the search was unreasonable because the officers who executed the warrant failed to conduct a...