Who’s That Knocking At My Door?

At WaPo’s The Watch, Radley Balko has a fascinating discussion of the history of no-knock warrants which includes discussion by Reason’s Jacob Sullum.

The no-knock raid is different from other raids in that it dispenses with the knock-and-announce requirement. This requirement, which dates back centuries to English common law, is part and parcel with the Castle Doctrine, the idea that the home should be a place of peace and sanctuary and that even when police have just cause to search a house, residents should be given every opportunity to come to the door, answer peacefully and let the officers in, thus avoiding damage to their property and violence to their person. (It also gives innocent residents the opportunity to point out to the police that they have made a mistake.) Under the Castle Doctrine, suspects are presumed innocent until proven guilty.

The law has always given special protection to the home, except when it doesn’t.  It’s not that the police shouldn’t be able to obtain a search warrant upon a showing of probable cause to a neutral magistrate, but that once obtained, two forces kick into play. First, whether the occupants of the home retain the presumption of innocence, and second, whether the interests of law enforcement take precedence.

As to the second prong, there are two considerations.  The first and foremost concern is the First Rule of Policing; that the cops execute the warrant without any risk of harm to themselves, even if that means the risk of harm is shifted onto the people inside the home.  The second is the preservation of evidence, which means that the raid be conducted with such speed and force (or as the police prefer to call it, “dynamic entry”) that the occupants can’t dispose of evidence before the cops can get it.

The alternative to the no-knock warrant, whether the state permits it as a matter of course or requires the inclusion of some talismanic incantation, whereupon the judge blesses it, is the knock-and-announce warrant.  The notion, back when great-grandpa was courting great-grandma in his surrey, was that the police would knock on a door and wait for the occupant to answer. That could take minutes, even during the day.

But that was ancient history. Sullum notes the Supreme Court’s decision in U.S. v. Banks.

As Sullum points out, the issue in the case is how long the police must wait after knocking and announcing before they can force their way into a home. But the majority goes about calculating that period of time not by estimating how long it would take a resident to come to the door to avoid violence and destruction of property — as it would do if it were starting with a presumption of innocence — but by estimating how long it would take someone to destroy drug evidence, as it would do if it were starting with a presumption of guilt. So while the court’s majority in Banks affirmed the knock-and-announce requirement, it dispensed with the very reason the requirement exists in the first place. It reduced the requirement to a mere formality, a kind of ritualistic but ultimately meaningless tribute to a time when the law took more seriously the presumption of innocence and the sanctity of the home.

Consider, however, the impact of a warrant executed in the dark of night, when the occupants are asleep.  No one expects a knock on the door in the middle of the night. Some won’t wake up, especially if it’s a dainty knock.  Some will, but will need a few moments to process what’s going on.  Very few will have the ability to awake from sleep, process the knock, and get to the door with such blinding speed as to beat the battering ram, where the cops counted to three seconds before breaking down the door.

The entire point of “dynamic entry” is to take the occupants of a building by surprise — to overwhelm them with force and violence before they have an opportunity to do much of anything, much less come and answer the door. Once you’ve decided to use dynamic entry tactics, you’ve already dispensed with the entire purpose of the knock-and-announce requirement.

And once the police enter, the dynamic changes entirely.  While the homeowner may think a burglar is breaking into the home and take actions to protect his family, the cop’s concern is their own welfare, so shoot first and true.  Not because the homeowner may necessarily be unreasonable in his defense of his castle, but because all the aspects of defense shift from the homeowner who would be a hero if these were home invaders entering to murder his family, to the police, who would be heroes by capturing the criminal within the home.

What Balko and Sullum lay out exceptionally well is the duality of concerns: do we (meaning society, and not just those reading here) prefer that police be safe and the evidence be preserved, or that people within homes be protected from harm by police executing a warrant under conditions that almost invariably deny the occupants the opportunity to allow the warrant to be executed peaceably.

Ultimately, this decision can be based on the degree of trust we repose in the police, in knowing what they’re doing and being trusted to do it without needless harm, and the judge who approves the warrant giving it sufficient scrutiny to assure that it is justified.  Or do we favor the possibility that the occasional criminal might be able to dispose of evidence of a crime so that the occasional non-criminal home occupant not be put at risk of his (or his baby’s) life?

For those who have never internalized the potential for harm to themselves or their loved ones, but read the newspapers and fear whatever epidemic is about to makes their lives unpleasant at the moment, the choice ultimately comes down to protecting their own interests. And if that means that some innocents end up harmed or dead in order to assure their safety, so be it.  It’s not like it would ever happen at their home, or to their family.  And that, ultimately, is what really matters.

7 thoughts on “Who’s That Knocking At My Door?

  1. Dave

    I think a commenter on some other site put this whole concept together rather succinctly, and so I think it bears repeating (with only slight editing):

    Police. They put their lives on the line for us. Unless they feel in danger; then they put our lives on the line for them.

    It also makes me want to rewrite the constitution based on the current state of the law, just as an exercise to show how stupid all of this is. Such a rewrite would include such gems as how the Fourth Amendment is limited to addressing police misconduct (rather than directed at the whole government, as one would assume of something that makes no mention of police whatsoever). It would also include a general caveat that the concerns of police (and really their convenience) and whatever makes the lives of prosecutors easier trumps any of those silly rights in the bill of rights, and so on. It would make for a very amusing, if depressing read.

  2. DanQ

    “It also makes me want to rewrite the constitution based on the current state of the law, just as an exercise to show how stupid all of this is.”

    That would be illuminating and interesting.

  3. David Woycechowsky

    Accord, 5th Cir., Trent v. Wade (January 29, 2015):

    Explaining the knock-and-announce rule (including the justifications for dispensing with it), the Supreme Court in Richards reasoned that the rule “strikes the appropriate balance” between “law enforcement concerns” and “the individual privacy interests affected by no-knock entries.” Richards, 520 U.S. at 394. The Supreme Court also identified those privacy interests that underlie the Fourth Amendment’s knock-and-announce rule. In particular, individuals should have the opportunity to: (1) comply with the law and obey an officer’s lawful demand to enter; (2) “avoid the destruction of property occasioned by a forcible entry”; and (3) “pull on clothes or get out of bed.” Id. at 393 n.5; see id. (“[W]hen police enter a residence without announcing their presence, the residents are not given any opportunity to prepare themselves for such an entry.” (emphasis added)); see also Wilson, 514 U.S. at 931-33 (explaining the common-law history of the rule). The Seventh Circuit distilled these interests thus: “The core interest protected by the knock and announce requirement is therefore the receipt of notice by occupants of the dwelling sufficient to avoid the degree of intrusiveness attendant to a forcible entry as well as any potential property damage that may result.” United States v. Espinoza, 256 F.3d 718, 727 (7th Cir. 2001) (emphasis added).

  4. Pingback: Police use of force roundup - Overlawyered

Comments are closed.