One of the things that people find most shocking is how disrespectful police seem when they arrive to execute a search warrant.  It offends the dignity of the target.  It also protects the police from getting killed.  It’s left to a judge somewhere to decide where, along the spectrum of dignity and death, any particular entry should be.

When a judge signs a search warrant, it includes a line that either allows or forbids entry without notice.  A “no-knock” warrant permits the cops to break down the door with nary a howdy-do, and is supposed to be based upon a factual showing that the residents may present a risk of harm or destruction of evidence if they are given any heads-up at all, such as a knock on the door requesting that they open up and allow the police entry.

On the other side, absent a “no-knock” authorization, police must first give the residents notice of their presence and purpose, and thereby allow the residents the opportunity to open the door.  The police then show the warrant to the residents, who then stand aside and allow the cops an opportunity to do their job.

No-knock warrants became all the rage in the mid-1980s, as drugs became the focus of law enforcement.  The argument was that drug dealers were inherently violent, commonly possessed weapons and were invariably inclined to use the opportunity between the time of the first knock to the moment the door was broken open to dispose of narcotics in the toilet. 

Prior to this, no-knock warrants were considered quite extreme and contrary to appropriate police conduct.  But given the scourge of drugs, at least as perceived by the courts, every search warrant for drugs included the allegations, and most judges routinely permitted no-knock warrants based on such generalized allegations.  Almost all home warrants were executed at 6:30 a.m., the perfect witching hour when the occupants were still fast asleep and would be too groggy to think clearly when the boom on the door was heard.

Which brings us to Mike Cernovich’s post at Crime and Federalism about the 9th Circuits approval of the five second rule in Howell v. Polk .  In 2000, the same court held that 5 second was not long enough to allow the residents to wake up, open the door and permit the police entry to execute the warrant.  Not this time.

In Howell, the issue was put to a jury, as the issue arose in a 1983 action.  The jury found that the five seconds between the first knock and the police beginning to break down the door (as the door was a steel security door, it apparently took about 20-30 seconds before they were able to break it open) was sufficient.  Despite the fact that this was a determination by a jury, decisions like this return to haunt criminal suppression motions because they create a “rule” to be easily applied to other circumstances.

The per curiam opinion, with Chief Judge Alex Kozinski sitting in the big chair, is a curious exercise in sophistry.  Not because Judge Alex knows that it can take longer than five seconds to download a decent picture of naked women painted like cows when the server is busy, but because they engage in a post hoc balancing test of the reasonableness of the 5 second delay.

Judge Alex knows better.  He knows the process for determining and issuing a search warrant.  He knows that the warrant application includes (or not) a no-knock provision and is supposed to provide allegations of fact in support.  He knows the 4th Amendment requires that a neutral magistrate decide whether, and to what extent, to grant a search warrant.  He knows how it works.  And then he completely ignored it, circumvented it and undermined it in Howell.  You can’t play dumb when you’re a smart judge.

Each of the arguments proffered in Howell in support of waiting a mere 5 second, clearly not long enough to allow the occupants of a home to arouse from sleep, recognize that there is someone knocking on the door, put on appropriate attire, travel to the door and open it, are the same stuff that routinely (though wrongly) were used to rubber stamp the no-knock warrants of the old days. 

The Howell warrant was a knock and announce warrant.  Whether the cops sought a no-knock and it was refused, is unknown.  But a knock and announce was what they had in hand, and that was as far as their authority went.  If they wanted to crash through the door, they needed the approval of the issuing judge.  They didn’t have it.  This is not an “easier to ask for forgiveness than permission” opportunity.

The arguments made in favor of not waiting may well have been deemed entirely valid.  But that’s not the point.  These were arguments to be made to the issuing judge, not to some judges afterward.  The exercise of a search warrant is to obtain prior approval to enter someone’s home.  The time to make your pitch is before you break through the door, not after. 

While one could argue that this should have been a no-knock warrant for the reasons upheld by the Circuit, the fact remains that it wasn’t.  It was a knock and announce warrant, and a five second delay between knock and start breaking down the door is a sham.  And Judge Alex knows it, and voted to approve it anyway.