Friday, January 14, 2005
New Case: Ninth Circuit Says "Knock and Announce" Rule Can Be Satisfied by Appropriate Announcement Without "Knock"
The Ninth Circuit ruled this week in U.S. v. Combs (and here) that the principles of the "knock and announce" rule were satisfied even though the officers in question failed to knock before executing a search warrant at a home. Rather than knock, the officers loudly announced their presence and their possession of a search warrant from the street via the patrol car's loudspeaker. When no one came to the door, they broke the door down with a battering ram and found the defendants and a meth lab inside. The officers justified their failure to knock, in essence, by explaining that active meth labs can explode, and they did not want to position officers close to the house any longer than they had to.
This case is interesting to me because it seems like none of the exceptions listed in Wilson were present (although the Wilson list is not exhaustive). There is no indication that the officers believed they would be met with bullets if they knocked, no indication that they feared the inhabitants would destroy evidence if they knocked, and it was not a hot pursuit case. The court noted that the occupants of the home had covered their windows with paper and had installed a security camera on the outside of the house, but these facts simply corroborated the tip that the occupants were doing something illegal inside. These facts alone should not give rise to a reasonable suspicion that the officers would be met with bullets if they knocked. Rather, the justification seemed to be that the officers did not want to stand near the door longer than they had to because they believed an active meth lab was inside. But the meth lab seems to have been in operation for an extended period of time without having blown up. An officer could have run up the sidewalk, knocked and announced and then quickly retreated to the street if he truly feared an explosion. The state's interest in dispensing with the knock requirement seems minimal, as the chance of an explosion occurring during the second or two it would take to knock and announce seems minuscule (not to mention that the explosion would have to be of a magnitude to cause injury to those standing outside the home in order for the stated "officer safety" rationale to be triggered). And, on top of all that, the officers were planning to search the home anyway knowing a meth lab was inside. How does a knock on the door substantially increase the risk to the officers given the extended period of time that they were already planning to spend inside the home? Moreover, several officers stood by the door anyway while another officer announced their presence via loudspeaker from the street. Thus, the officers' own actions seem to belie the fact that a knock was not feasible. My feeling is that the officers decided to be cowboys and announce their presence in a dramatic fashion, and then attempted to justify their failure to knock after-the-fact.
One might argue that an announcement via loudspeaker accomplishes the same thing as a full "knock and announce," so requiring the notice to come from the sound of a hand rapping on wood (or doorbell) rather than vocal chords and loudspeaker trivializes the 4th Amendment. But a knock on the door is more clearly directed at the inhabitants of the home than street noise. Here, the officers actually announced the address of the home they were intending to search over the loudspeaker, which could perhaps take care of that problem. But still, people are conditioned to tune out "street noise" without really listening, and conditioned to mentally register knocks on doors.
An additional and more interesting problem, as I see it, is that the method used by the police alerted the entire neighborhood. If the police were executing a search warrant at my house, I would rather them discreetly knock and announce at my front door rather than let the entire street know that I "might" be in trouble. This is particularly true when the PC is developed, as it was in this case, through an anonymous tipster who might be dead wrong. Whether this additional invasion of privacy by exposing to the neighborhood what is going on is recognized in the "totality of the circumstances" in deciding whether the means of entry was reasonable is an interesting question. If so, I am not sure that the state's minimal-to-nonexistent interest in avoiding a discreet knock outweighed the defendant's privacy interest in avoiding a publicly-announced search. [Mark Godsey]