JAMES BOVARD
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Playboy
October 1995
HEADLINE: No-knock victory; U.S Supreme Court ruling on police raids; The Playboy Forum
BYLINE: Bovard, James
Knock and announce: a senseless ceremony or a basic right?
You've seen the situation a million times on television. Police in bulletproof vests crouch by a door, guns drawn. Other officers approach with a battering ram. Depending on your politics, what happens next can produce chills or cheers, an image of jackbooted thugs or justice in action.
For decades police who are engaged in the holy war against drugs have practiced "dynamic entry"--executing search warrants in the dead of night, smashing doors, windows and walls without warning.
But when police break down the wrong door, people sometimes die. Police have shot homeowners, and homeowners, thinking they were being robbed, have shot and killed police. It is painfully obvious that these tragedies could have been avoided if police had simply announced their presence.
The Fourth Amendment declares: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated." Does that mean police are obliged to knock before battering down a door? What constitutes a "reasonable" entry?
The Supreme Court flirted with these issues on March 28, 1995 when it heard oral arguments in Sharlene Wilson rs. Arkansas.
Wilson is not exactly a poster girl for constitutional rights. Twice she sold small amounts of marijuana to a government informant. After the second sale, police obtained a warrant to search her home and entered without warning. They found marijuana, speed, Valium, a gun, ammunition and some "narcotics paraphernalia." Wilson was sentenced to 32 years in prison and fined $11,000--for two counts of delivery, possession of marijuana and possession of drug paraphernalia.
John Wesley Hall, an Arkansas attorney and author of a two-volume treatise on the Fourth Amendment, petitioned the Court to overturn Wilson's convictions for possession of marijuana and drug paraphernalia, claiming that the no-knock raid was unconstitutional. He argued that even though the Fourth Amendment does not specifically dictate that police announce themselves before executing a warrant, common law had clearly wed the two acts for hundreds of years.
The initial debate was a comic exploration of the impact of modern plumbing on law enforcement. The assistant solicitor general from the Justice Department, which supported Arkansas' position, argued that because criminals could flush small amounts of drugs down the toilet, thus destroying evidence, police were not obligated to knock. At the oral arguments, Hall ridiculed the notion that the size of the stash eroded a basic right. If you believed the Justice Department, Hall said, "the more drugs you've got, the more right you have to an announcement."
In a wry twist, Hall even suggested that modern plumbing helps the war on drugs: "You're just as well off that they flushed it. The drugs are out of circulation."
The lawyer for the Justice Department was adamant. He suggested that there might be two instances in which police would willingly announce themselves--if an informant had assured them that large quantities of drugs were in indestructible containers, or if the evidence were as big as or bigger than a TV set. Justice Antonin Scalia seemed to get the point. Why stop at drugs? he asked the lawyer from the Justice Department. "What if it's stolen jewelry that could be chucked down the toilet? It seems you're making an exception that swallows up the general rule."
Hall also challenged the issue of safety. The state argued that the element of surprise kept criminals from reaching for their guns. As proof that no-knock raids endanger officers as well as citizens, Hall cited a case mentioned in the December 1994 Forum article "Oops--You're Dead."
He had attached a copy of the article to his brief. Nearly 50 percent of American homes have guns: Innocent citizens don't reach for a weapon when the police identify themselves and most drug dealers won't risk the death penalty.
On May 22, the Supreme Court unanimously voted to make knockand-announce rules part of the "reasonable" standard of the Fourth Amendment. The Court refused to sacrifice a fundamental concept to convenience, expediency or fear. Clarence Thomas noted that the requirement for a police officer to announce his or her presence and authority was not an absolute, that previous courts had held that in some circumstances "demand and refusal" was a "senseless ceremony" say, if a police officer were in hot pursuit of a felon . The decision leaves it to local courts and law enforcement interests to determine whether dynamic entry is reasonable.
Some 31 states and the federal government's own guidelines mandate knock and announce; the Court's ruling will remind the rest of the states--as well as the officers responsible for Waco and Ruby Ridge--that justice resides in the details.