Castle Under Siege

THE RECORDER

The U.S Supreme Court Should Reject Wisconsin's Attempt to Strangle the 'Knock and Announce' Rule in Drug Cases

By: Seth P. Chazin
Attorney at Law

Imagine that your son, a junior at Stanford with a 3.9 grade point average, has a roommate who the police have observed dealing drugs out of their apartment. Based on these observations, the police obtain a search warrant. In serving the warrant, the police make no effort to identify themselves, request entry, or state the reason for the request. Instead, they bash in the door one night while your son and his roommate are watching TV. Caught up in the adrenaline rush, a rookie cop thinks that the remote in your son's hand is a revolver and levels three shots into his chest, killing your child.

Or imagine that your sister is an officer with the Stockton Police Department and is executing a search warrant at a house suspected to contain financial records that will wrap up a six-month fraud investigation.

The police, based on the command of your sister's sergeant, again dispense with the standard procedure of knocking, announcing their presence and requesting entry before busting into the suspect's home. Alarmed by the sound of approaching footsteps and the sudden collapse of his front door, the suspect quickly grabs the .22 he keeps by his bed and starts firing, believing he is about to be another victim of the string of armed robberies that have terrorized his neighborhood in recent weeks. In the haze of gunfire, a single shot to the heart kills your sister.

These fictional scenarios could easily become a reality unless the U.S. Supreme Court rejects the state of Wisconsin's request March 24, in Wisconsin v. Richards, to relax the "knock and announce" requirement for entries into premises pursuant to a search warrant. The court is expected to render its decision sometime this summer or fall.

THE CASE
Richards involves the forcible entry and search of a motel room in Madison, Wis., pursuant to a search warrant. The police had sought a "no-knock" warrant but the magistrate found insufficient evidence to justify the request. Nevertheless, the police failed to announce their presence and purpose for entry. The search of the motel room uncovered narcotics concealed in the bathroom-ceiling tile. The petitioner entered a guilty plea but then appealed the denial of his motion to suppress evidence.

In the lower court decision, the Wisconsin Supreme Court held that the Fourth Amendment allows a blanket exception to the knock-and-announce rule if the police conduct a search pursuant to a warrant in a felony drug case. The rationale of the Wisconsin Supreme Court in creating this blanket exception was that exigent circumstances always exist in these cases.

The knock-and-announce rule stands for the proposition that, except for certain well delineated exceptions, the police must first knock and identify themselves and the purpose of seeking entry before entering a home to serve a search warrant. One exception is if the police have a reasonable belief that contraband is imminently being disposed of or destroyed. Wisconsin's request to carve out a major exception to the knock-and-announce rule for every felony drug case is remarkable. The state of Wisconsin, in arguing this case, is seeking to significantly undermine a constitutional protection that dates back to the American Revolution.

The Fourth Amendment specifically enumerates the right of United States citizens to be free from unlawful intrusions in the home: "The right of the people to be secure in their …houses…. shall not be violated." The U.S. Supreme Court has consistently reinforced this Fourth Amendment protection. In United States v. Martinez 2D Fuerte (1976) the court held that "The sanctity of private dwellings (is) ordinarily afforded the most stringent Fourth Amendment protection." Common-law decisions dating back to the l8th century limit the authority of police officers to enter a dwelling without first knocking and announcing their presence.

A CALL TO ARMS
Wisconsin v. Richards has such significant ramifications that the American Civil Liberties Union and the National Association of Criminal Defense Lawyers have filed an amicus brief on behalf of the petitioner, strongly denouncing the state of Wisconsin's attempt to make deep inroads into the knock-and-announce rule. The brief cites an abundance of authority supporting Richards' claim that the Wisconsin Supreme Court decision unconstitutionally gives the police carte blanche to burst into a suspect's home in any felony drug case. The ACLU also warns that a decision carving out such a significant exception to the knock-and-announce rule would likely open the floodgates to further broad exceptions to the rule as well as to unfettered police discretion.

There is no question that a system that provides unfettered and unreviewable discretion to the police when conducting searches and seizures is a system that leaves itself much too open to abuses. Furthermore, the historical common-law record, which has rarely if ever permitted blanket exceptions to Fourth Amendment protections, reflects the recognition of such pernicious abuses.

Richards, the ACLU and the NACDL rely on the recent U.S. Supreme Court decision in Wilson v. Arkansas (1995), which states that the Fourth Amendment prohibits blanket exceptions to the knock-and-announce rule. Wilson gives no indication that it would permit such an exception in drug cases. In fact, Wilson specifically reiterates and upholds the fundamental analytical approach for all Fourth Amendment inquiries: The reviewing court must assess the underlying facts and analysis of legal principles on a case-by-case basis. Thus, it is clear that a blanket exception is constitutionally impermissible.

Equally important are the practical consequences of dispensing with this time-tested rule. Allowing the police to ignore the knock-and-announce rule will likely result in the senseless waste of human life. We can only hope that the Supreme Court will see the light when it hears oral arguments next week.