Suppression Not The Proper Remedy In A Federal Knock-and-announce Violation

[Big Sexy]

SUPPRESSION IS NOT THE PROPER REMEDY WHERE THERE IS A VIOLATION OF THE FEDERAL KNOCK-AND-ANNOUNCE RULE, FIFTH CIRCUIT RULES

Suppression is not the proper remedy where there is a violation of the federal knock-and-announce rule, the Fifth Circuit ruled earlier this month.

In this case, DEA agents and members of the League City SWAT Team arrived at the residence of one of the defendants, Christopher Caldwell, early one morning to execute a search warrant. One of the SWAT team members knocked loudly on the front door and announced, “Police, search warrant.” About ten seconds later, two officers at the master bedroom performed a “rake-and-break” maneuver: One broke the window and cleaned it out, and the other pointed a long gun with a light on
it through the window and instructed, “Police. Don’t move. Search warrant. Put your hands where I can see them.” Caldwell was in bed with his wife and appeared to have been awakened recently.

Approximately 15 to 20 seconds after officers broke the bedroom window, the front-door team tossed a concussion grenade toward the garage as a distraction in case other adults were present, and then broke through the front door. The other defendant, Phillip Bruno, tried to flee from the garage, but DEA agents caught and arrested him.

Officers recovered a small, loaded handgun from above the headboard on the side of the bed where Caldwell was sleeping, and a loaded shotgun from the master bedroom shower stall. A later search uncovered narcotics and seven other weapons.

Caldwell and Bruno were charged in an eleven-count indictment with various narcotics- and firearms-related offenses. They filed a motion to suppress the evidence, claiming that federal officers did not knock and announce their identity and purpose when executing the search warrant, in violation of the Fourth Amendment and federal statute. The district court granted the motion, and the government appealed.

In its decision, the Fifth Circuit explained that the U.S. Supreme Court had
addressed a similar situation in the case of Hudson v. Michigan, 126 S.Ct. 2159 (2006), and had ruled that suppression was not the appropriate remedy for a violation of the constitutional knock-and-announce requirement. Noting that the statute does not protect the individual’s interest in shielding potential evidence from the government’s eyes, and that any deterrent value from suppressing the evidence in such cases would not be significant, the Fifth Circuit ruled that suppression is not available as a remedy for violations of the federal knock-and-announce rule. Accordingly, the circuit court reversed the lower court decision.

The case is U.S. v. Bruno, U.S. Court of Appeals for the Fifth Circuit, No.
05-41763, May 18, 2007.

[countybear]

Bingo! Granted, the idiots will probably run (not walk) after a 1983 now, but at least they'll have to do it through the prison law library!

[conalabu]

Stand by one, it says they did announce and knock. Did I miss something?

[lewisipso]

Yeah!!

[Jackalope]

Yeah, I don't understand what the supposed violation of the law was. The knocked and announced, and only then broke the window. What more were they supposed to have done?

[countybear]

The "knock and announce" rule was mandated (with few exceptions) by the USSC opinion in the case of Wilson v. Arkansas. It provides that officers must "knock and announce" their presence and intentions, then give reasonable and ample time for the occupants inside to respond and open the door for the police before forcible entry is made. Such reasonable and ample time has generally been 20-30 seconds, by most policies and procedures. There has been very hot debate over this mandate since it was handed down in 1995, primarily over such delay compromising officer safety.

34 states, the District of Columbia, and the federal government have enacted statutes requiring that law enforcement officers knock and announce their presence prior to making forced entry to premises. A typical example of a statutory enactment is the federal knock and announce statute, which provides: The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

Some jurisdictions enacted legislation providing for so-called no-knock warrants. However, controversy precipitated by no-knock warrants resulted in Congress' repealing the federal no-knock statute in 1974. Only a few states currently have statutes authorizing no-knock warrants.

http://www.fbi.gov/publications/leb/1997/may976.htm

The cited violation in this case was that the officers did not give the reasonable and ample time for the occupants of the residence to respond, and forced entry without being denied entry into the residence.

It is important to note that the Fifth Circuit decision in this case was actually a no-brainer, because the USSC has already rendered an opinion much the same in Hudson v. Michigan, ruling that suppression of evidence should not be remedy for violations of "knock and announce".

http://www.laed.uscourts.gov/OpenDoo...se_Summary.pdf

[lewisipso]

I say we gear up, go to the target house, knock, announce and then have a fu@king picnic on the front lawn. Hell lets have a family reunion while we wait on the suspect to answer the damn door.

[Jackalope]

Thanks for the clarification, Countybear.

Does anyone know if the officers at the bedroom window observed some kind of threat or suspicious activity in the bedroom that caused them to enter the house before the required 20-30 seconds had passed?

[countybear]

By the way lew, Louisiana is one of those few States that allows "no-knock" search warrants, primarily when it can be articulated in the PC affidavit that the evidence being searched for is of a very perishable nature (easily and quickly destroyed), or the occupants expected to be present have a history of violent behavior.

[conalabu]

I could have sworn the USSC just came down with a ruling saying that we didn't have to wait after the knock and announce. I'll get back to you on that one, but I am pretty sure I just read a case brief with that not too long ago.

[countybear]

You are probably referring to this news article:

http://www.cnn.com/2006/LAW/06/15/sc...rch/index.html

Which (incorrectly) says "The Police No Longer Have to Knock". (Let's hear it for yet another CNN inaccuracy).

The ruling they refer to is the same I cited below, in Hudson v. Michigan USSC (2006) Justice Scalia delivered an opinion which states clearly that the exclusionary rule does not in itself apply to evidence siezed following a "knock and announce" violation by the police. The opinion does, however state that civil penalties and internal police discipline are acceptable remedies for such "knock and announce" violations.

The USSC also previously addressed the "knock and announce" requirements in Richards v. Wisconsin, 520 U.S. 385 (1997), wherein the opinion detailed exceptions applicable to the "knock and announce" rule set forth in Wilson v. Arkansas in 1995.

A "no knock" entry is justified when the 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.

Link to Richards v. Wisconsin full text:

http://supct.law.cornell.edu/supct/html/96-5955.ZS.html

Link to Hudson v. Michigan full text:

http://supct.law.cornell.edu/supct/html/04-1360.ZS.html

[tapout]

The "knock and announce" rule was mandated (with few exceptions) by the USSC opinion in the case of Wilson v. Arkansas. It provides that officers must "knock and announce" their presence and intentions, then give reasonable and ample time for the occupants inside to respond and open the door for the police before forcible entry is made. Such reasonable and ample time has generally been 20-30 seconds, by most policies and procedures. There has been very hot debate over this mandate since it was handed down in 1995, primarily over such delay compromising officer safety.





The cited violation in this case was that the officers did not give the reasonable and ample time for the occupants of the residence to respond, and forced entry without being denied entry into the residence.

good post


as far as that ruling, it is important to note that the court has never defined exactly how much time is "reasonable and ample" time for entry after the initial knock, leaving each case open for individual interpretation, and nowhere is it legislated that officers must give 20-30 seconds prior to making entry after an initial knock.

articulation