Breonna Taylor, a 26-year-old Black medical worker in Louisville, Kentucky, was shot to death by police shortly after midnight on March 13, 2020, in the apartment she shared with her boyfriend, Kenneth Walker. The police had a no-knock warrant and entered with a battering ram to search for evidence of drug dealing; none was found. Or what of the shooting death of Amir Locke by a Minneapolis SWAT officer serving a no-knock warrant?
Where was Ms. Taylor’s or Mr. Locke’sconstitutional protection?
The Fourth Amendment was adopted by Congress in 1789 and ratified by the states in 1791 as one of the provisions of the Bill of Rights. It reads:
“The right of the people to be secure in their persons, houses, papers, 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.”
In just 54 words, the Fourth Amendment packs a lot of significance.
The language of the Fourth Amendment, due to an oversight when it was redrafted, has been a source of confusion. Abrams, Constitutional Limitations on Detention for Investigation, 52 Iowa L. Rev. 1093, 1101 (1967); Comment, 28 U. Chi. L. Rev.664,678-92 (1961). The amendment has been said to have “both the virtue of brevity and vice of ambiguity.” Landynski, J., Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation, (1966) p.42. It has been described as “Delphic.” Uviller, Reasonability and the Fourth Amendment: A (Belated) Farewell to Justice Potter Stewart , 25 Crim. L. Bull., January-February 1989 p.29. There has been a widespread consensus during the twentieth century about the basic meaning to be attributed to each of the two clauses of the text. The first clause has been understood to state a comprehensive principle - that the government shall not violate the "right to be secure "by conducting "unreasonable searches and seizutes." 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT 5-7 (3d ed. 1996); Denying a Rightby Disregarding Doctrine: How Illinois v. Rodriquez Contorts Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 TENN. L.REV. 1, 45-59 (1991).
Unlike its language, the historical origins of the Fourth Amendment are clear. They are traceable to the political events in England and the Colonies which ignited the American Revolution. Landynski, at 19. These events involved the unrestrained and indiscriminate searches and seizures pursuant to general warrants and Writs of Assistance. Landynski, at 20. the basic policy or purpose behind the Fourth Amendment is to safeguard an individual’s privacy and protect individuals against arbitrary invasions by officials of the government. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). See also, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); United States v. Ortiz, 422 U.S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973). It was the Fourth Amendment which was meant to allow, to paraphrase William Pitt, the poorest man to defy all the power of the State. Lasson, at 49.
The Fourth Amendment requirement that no warrants shall issue except those “particularly describing the ... things to be seized” protects individuals against general searches and prevents the government from seizing one thing under a warrant while describing another. Marron v. United States, 275 U.S. 192 ( 1927). Marron further explains that nothing should be left to the discretion of a police officer when it comes to the execution of a warrant and the seizure of any property pursuant to that warrant. Thus, the particularity requirement prevents the issuance of warrants on loose, vague, or doubtful bases of fact. Go- Bart Importing Co. v. United States, 282 U.S. 344 (1931).
In total violation of this history of the Fourth Amendment, courts have begun to discount the importance of a warrant in protection of American citizens rights. Forgetting the importance of the warrant requirement to the Fourth Amendment, courts have created a general reasonableness construction to the Fourth , in which the value of the warrant is discounted and the constitutionality of a search or seizure is determined simply by making a relativistic assessment of the appropriateness of police conduct in light of the totality of the circumstances. Carroll v. United States, 267 U.S. 132 (1925) (employing "reasonableness" only to excuse the lack of a search warrant when there was probable cause to believe an automobile contained contraband BUT did not employ "reasonableness" as a substitute for the probable cause standard itself) See, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 667-68 (1995) (O'Connor, J., dissenting). See also, Wilson v. Arkansas, 514 U.S. 927 (1995) (replacing the common-law knock-and-announce rule for executing warrants with a "reasonableness" standard); Cady v. Dombrowski, 413 U.S. 433, 448 (1973), United States v. Robinson, 414 U.S. 218 (1973). In this way courts euthanize the Fourth Amendment and resuscitate it by only forbidding those police intrusions that were "unreasonable," he opened the way for replacing specific standards of police conduct with the open-ended notion of "reasonableness" itself.
With this history of the Fourth Amendment in mind, the police practice of “no knock” warrants requires some evaluation.
What is a “no knock” warrant? The Framers of the Fourth Amendment incorporated the common law requirement of police officers to enter certain premises without first knocking and announcing their presence or purpose prior to entering the premises. Wilson v. Arkansas, 514 U.S. 927, 934 (1995). A no knock warrant allows the police enter certain premises without first knocking and announcing their presence if they have a reasonable suspicion that doing so is dangerous or futile. Richards v. Wisconsin, 520 U.S. 385, 394-95 (1997). No Knock warrants exist despite the police only having to wait 15-20 seconds after knocking. U.S. v. Banks, 540 U.S. 31 (2003). Even when a court finds that the police have violated the knock-and-announce rule, the Supreme Court has held that the prosecution can still use the evidence seized as a result of a subsequent search at trial, significantly diluting the knock-and-announce requirement’s value as a deterrent to police overreach. Hudson v. Michigan, 547 U.S. 586, 591, 599 (2006).
The reality is that “no-knock” raids are a common tactic with little judicial scrutiny. There are a staggering 20,000 or more estimated no-knock raids every year across America. By the numbers, it's clear that no-knock SWAT raids are far more dangerous to civilians than they are to police.” Cops do 20,000 no-knock raids a year. Civilians often pay the price when they go wrong. https://www.vox.com/2014/10/29/7083371/swat-no-knock-raids-police-killed-civilians-dangerous-work-drugs 77% of all searches by Milwaukee Police Department in 2019 were done with no knock warrants. Most Home Drug Searches By Police Use No-Knock Warrants, https://urbanmilwaukee.com/2022/02/03/court-watch-most-home-drug-searches-by-police-use-no-knock-warrants/ Milwaukee County court commissioners and judges almost always granted those requests (92% approval rate). Id. No knock warrants are disproportionately carried out against people of color. War Comes Home: The Excessive Militarization of American Policing, https://www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf; Most Home Drug Searches By Police Use No-Knock Warrants, id.
The citizen deaths caused by the execution of no knock warrants has led to calls for banning the use of no knock warrants.
Kevin Davis, chief of the Fairfax County Police Department in Virginia, said it's important to distinguish between forced entry during emergencies and warrants served during criminal investigations. He said that for the "furtherance of a criminal investigation -- the recovery of evidence, recovery of property," it's better to avoid no-knock warrants altogether. "I think there's large scale agreement in policing that has resulted in better ways to execute search warrants," Davis said.” There's a growing consensus in law enforcement over no-knock warrants: The risks outweigh the rewards, https://www.cnn.com/2022/02/12/us/no-knock-warrants-policy-bans-states/index.html
At least four states -- Florida, Oregon, Connecticut and Virginia -- have banned the no-knock warrants, while other states have enacted laws that stop just short of doing so by only allowing them in certain circumstances. A host of others have enacted other changes, like requiring departments to keep data or officers serving warrants to use body-worn cameras.
Likewise, the Task Force on Policing has, after reviewing situations involving no knock warrants, stated that “[j]urisdictions should prohibit or severely restrict the use of no-knock warrants and unannounced police raids. Even when well-planned and orchestrated through the collection and assessment of detailed intelligence, they can be dangerous to occupants and officers. Quick-knock warrants pose many of same risks as no-knock warrants, particularly when conducted in the middle of the night, and therefore should also be prohibited.” No-Knock Warrants and Police Raids JANUARY 2021, https://assets.foleon.com/eu-west-2/uploads-7e3kk3/41697/pdf_-_no_knock_warrants.afc61934d317.pdf
Where was Ms. Taylor’s or Mr. Locke’sconstitutional protection?
The Fourth Amendment was adopted by Congress in 1789 and ratified by the states in 1791 as one of the provisions of the Bill of Rights. It reads:
“The right of the people to be secure in their persons, houses, papers, 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.”
In just 54 words, the Fourth Amendment packs a lot of significance.
The language of the Fourth Amendment, due to an oversight when it was redrafted, has been a source of confusion. Abrams, Constitutional Limitations on Detention for Investigation, 52 Iowa L. Rev. 1093, 1101 (1967); Comment, 28 U. Chi. L. Rev.664,678-92 (1961). The amendment has been said to have “both the virtue of brevity and vice of ambiguity.” Landynski, J., Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation, (1966) p.42. It has been described as “Delphic.” Uviller, Reasonability and the Fourth Amendment: A (Belated) Farewell to Justice Potter Stewart , 25 Crim. L. Bull., January-February 1989 p.29. There has been a widespread consensus during the twentieth century about the basic meaning to be attributed to each of the two clauses of the text. The first clause has been understood to state a comprehensive principle - that the government shall not violate the "right to be secure "by conducting "unreasonable searches and seizutes." 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT 5-7 (3d ed. 1996); Denying a Rightby Disregarding Doctrine: How Illinois v. Rodriquez Contorts Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 TENN. L.REV. 1, 45-59 (1991).
Unlike its language, the historical origins of the Fourth Amendment are clear. They are traceable to the political events in England and the Colonies which ignited the American Revolution. Landynski, at 19. These events involved the unrestrained and indiscriminate searches and seizures pursuant to general warrants and Writs of Assistance. Landynski, at 20. the basic policy or purpose behind the Fourth Amendment is to safeguard an individual’s privacy and protect individuals against arbitrary invasions by officials of the government. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). See also, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); United States v. Ortiz, 422 U.S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973). It was the Fourth Amendment which was meant to allow, to paraphrase William Pitt, the poorest man to defy all the power of the State. Lasson, at 49.
The Fourth Amendment requirement that no warrants shall issue except those “particularly describing the ... things to be seized” protects individuals against general searches and prevents the government from seizing one thing under a warrant while describing another. Marron v. United States, 275 U.S. 192 ( 1927). Marron further explains that nothing should be left to the discretion of a police officer when it comes to the execution of a warrant and the seizure of any property pursuant to that warrant. Thus, the particularity requirement prevents the issuance of warrants on loose, vague, or doubtful bases of fact. Go- Bart Importing Co. v. United States, 282 U.S. 344 (1931).
In total violation of this history of the Fourth Amendment, courts have begun to discount the importance of a warrant in protection of American citizens rights. Forgetting the importance of the warrant requirement to the Fourth Amendment, courts have created a general reasonableness construction to the Fourth , in which the value of the warrant is discounted and the constitutionality of a search or seizure is determined simply by making a relativistic assessment of the appropriateness of police conduct in light of the totality of the circumstances. Carroll v. United States, 267 U.S. 132 (1925) (employing "reasonableness" only to excuse the lack of a search warrant when there was probable cause to believe an automobile contained contraband BUT did not employ "reasonableness" as a substitute for the probable cause standard itself) See, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 667-68 (1995) (O'Connor, J., dissenting). See also, Wilson v. Arkansas, 514 U.S. 927 (1995) (replacing the common-law knock-and-announce rule for executing warrants with a "reasonableness" standard); Cady v. Dombrowski, 413 U.S. 433, 448 (1973), United States v. Robinson, 414 U.S. 218 (1973). In this way courts euthanize the Fourth Amendment and resuscitate it by only forbidding those police intrusions that were "unreasonable," he opened the way for replacing specific standards of police conduct with the open-ended notion of "reasonableness" itself.
With this history of the Fourth Amendment in mind, the police practice of “no knock” warrants requires some evaluation.
What is a “no knock” warrant? The Framers of the Fourth Amendment incorporated the common law requirement of police officers to enter certain premises without first knocking and announcing their presence or purpose prior to entering the premises. Wilson v. Arkansas, 514 U.S. 927, 934 (1995). A no knock warrant allows the police enter certain premises without first knocking and announcing their presence if they have a reasonable suspicion that doing so is dangerous or futile. Richards v. Wisconsin, 520 U.S. 385, 394-95 (1997). No Knock warrants exist despite the police only having to wait 15-20 seconds after knocking. U.S. v. Banks, 540 U.S. 31 (2003). Even when a court finds that the police have violated the knock-and-announce rule, the Supreme Court has held that the prosecution can still use the evidence seized as a result of a subsequent search at trial, significantly diluting the knock-and-announce requirement’s value as a deterrent to police overreach. Hudson v. Michigan, 547 U.S. 586, 591, 599 (2006).
The reality is that “no-knock” raids are a common tactic with little judicial scrutiny. There are a staggering 20,000 or more estimated no-knock raids every year across America. By the numbers, it's clear that no-knock SWAT raids are far more dangerous to civilians than they are to police.” Cops do 20,000 no-knock raids a year. Civilians often pay the price when they go wrong. https://www.vox.com/2014/10/29/7083371/swat-no-knock-raids-police-killed-civilians-dangerous-work-drugs 77% of all searches by Milwaukee Police Department in 2019 were done with no knock warrants. Most Home Drug Searches By Police Use No-Knock Warrants, https://urbanmilwaukee.com/2022/02/03/court-watch-most-home-drug-searches-by-police-use-no-knock-warrants/ Milwaukee County court commissioners and judges almost always granted those requests (92% approval rate). Id. No knock warrants are disproportionately carried out against people of color. War Comes Home: The Excessive Militarization of American Policing, https://www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf; Most Home Drug Searches By Police Use No-Knock Warrants, id.
The citizen deaths caused by the execution of no knock warrants has led to calls for banning the use of no knock warrants.
Kevin Davis, chief of the Fairfax County Police Department in Virginia, said it's important to distinguish between forced entry during emergencies and warrants served during criminal investigations. He said that for the "furtherance of a criminal investigation -- the recovery of evidence, recovery of property," it's better to avoid no-knock warrants altogether. "I think there's large scale agreement in policing that has resulted in better ways to execute search warrants," Davis said.” There's a growing consensus in law enforcement over no-knock warrants: The risks outweigh the rewards, https://www.cnn.com/2022/02/12/us/no-knock-warrants-policy-bans-states/index.html
At least four states -- Florida, Oregon, Connecticut and Virginia -- have banned the no-knock warrants, while other states have enacted laws that stop just short of doing so by only allowing them in certain circumstances. A host of others have enacted other changes, like requiring departments to keep data or officers serving warrants to use body-worn cameras.
Likewise, the Task Force on Policing has, after reviewing situations involving no knock warrants, stated that “[j]urisdictions should prohibit or severely restrict the use of no-knock warrants and unannounced police raids. Even when well-planned and orchestrated through the collection and assessment of detailed intelligence, they can be dangerous to occupants and officers. Quick-knock warrants pose many of same risks as no-knock warrants, particularly when conducted in the middle of the night, and therefore should also be prohibited.” No-Knock Warrants and Police Raids JANUARY 2021, https://assets.foleon.com/eu-west-2/uploads-7e3kk3/41697/pdf_-_no_knock_warrants.afc61934d317.pdf
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