I Hear Ya Knockin’

This month, Virginia became one of three states to ban “no knock” warrants. Thirteen states have legislated in favor of this police power while the remainder deem such searches permissible with court approval. The procedure has had a troubled history, one most recently capturing national attention with the death of Breonna Taylor.

For more than 400 years, following English common law, the US judiciary required law enforcement to “knock and announce” a forcible entry into a premises. Unlike its companion nine amendments, the Fourth Amendment is an acutely detailed one of ten in the Bill or Rights. In jurisprudential terms, it is both a procedural protection and a substantive one as it enumerates the protected right and the process necessary to infringe upon that right.

The right of the people to be secure in their personshousespapers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The terms of the Fourth Amendment were strictly followed and applied until 1963 when, in a 5-4 decision, SCOTUS upheld lower court rulings finding that an infringement was permissible as “incident to an otherwise lawful arrest” (Ker v. California). In Ker, the police had gained entry to the apartment of a married couple using a pass key provided by a superintendent. Upon entry, the police found a “leafy brick” on a table believed to be marijuana.

[In] 1963 . . . in a 5-4 decision, SCOTUS upheld lower court rulings finding that an infringement was permissible as “incident to an otherwise lawful arrest”. . . . [It was] determined that the evidence was probable cause before the fact which, in turn, vitiated the necessity of “knock and announce.” In this way, society’s demand for a “war on drugs” threw under the bus the Fourth Amendment’s right to be secure in favor of obtaining evidence for criminal prosecution.

The gravamen of the decision determined that the evidence was probable cause before the fact which, in turn, vitiated the necessity of “knock and announce.” In this way, society’s demand for a “war on drugs” threw under the bus the Fourth Amendment’s right to be secure in favor of obtaining evidence for criminal prosecution. Later SCOTUS rulings fine-tuned the Ker ruling to authorize forcible entry where the police have “reasonable suspicion”; to “prevent the destruction of evidence”; and to “promote effective investigations.” Prior to these findings, courts generally precluded evidence seized in violation of the prescriptions of the Fourth Amendment until in 2006, SCOTUS determined that this “exclusionary rule” need not be followed and permitted the introduction and use of such evidence even in an illegal forced entry (Hudson v. Michigan).

The war on drugs, initiated by Nixon in the 1970s and adopted by Reagan as a national public policy in the 1980s, saw the use of “no knock” warrants explode from a few thousand in the ’80s to more than 50,000 in 2005. According to the Cato Institute, 40 bystanders have been killed in warrantless entries since that time. This result is but one of several unintended effects created by Ker and its successors.

Combined with the protection of law enforcement personnel under “qualified immunity,” police conduct in such forcible entries has caused deep concern, as seen in the Breonna Taylor incident. In one egregious case, Los Angeles PD members employed no-knock warrants to gather cash and drugs to create a drug cartel.

Clearly, no-knock incidents result on many occasions in injuries and, sometimes, death. The cost/benefit ratio of having compromised the Fourth Amendment has begun to filter into state legislatures as a bad bargain prompting the ban of such warrants. In addition on the “cost” side of the ledger, jurisdictions have been slammed with multi-million-dollar judgments for violations, particularly where deaths result. A recent decision in Georgia cost the county $3.6 million while the police officer was acquitted.

The need of law enforcement and prosecutors for evidence eroded Fourth Amendment protections. There is no public record of a “no knock” injury or death in the Commonwealth, making the legislative prohibition proactive in preventing a Breonna Taylor incident.

Under the new law, Virginia has reemphasized the spirit and protections of the Fourth Amendment. Law enforcement officers must be identified as uniformed and “provide audible notice of the authority and purpose reasonably expected to be heard by occupants of such place to be searched prior to the execution of such search warrant.”

Under the new law, Virginia has reemphasized the spirit and protections of the Fourth Amendment. Law enforcement officers must be identified as uniformed and “provide audible notice of the authority and purpose reasonably expected to be heard by occupants of such place to be searched prior to the execution of such search warrant.” It also requires the executing officer to read and give a copy of the search warrant to the person to be searched or the owner of the location to be searched.

As “no knock” warrants were spawned from the “war on drugs,” the swing of the pendulum from that inception to today is almost ironic. The weight of the pendulum has increased dramatically as the General Assembly is considering the legalization of marijuana in the Commonwealth in another measure of progress.

The abolition of “no knock” warrants in the Commonwealth will likely save some lives and the careers of some police officers. Taxpayers will benefit from legal marijuana production, sales, distribution, and commerce, and the absence of liability lawsuits for wrongful injuries or death. Perhaps most important, the primacy of Fourth Amendment protections will be reinstated. Win-win.



Categories: CIVIL RIGHTS, crime and punishment, Issues, National, police, POLICING, politics, RULE OF LAW, SCOTUS

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