It is well settled law that if the police want to conduct a search of your property, unless you give them your consent and permission to conduct the search, they have to have a warrant to gain entry. Under the body of law on search warrants, when any search conducted pursuant to a warrant was conducted, the police had to knock and announce their presence, wait a reasonable amount of time; then they could enter. Fail to “knock and announce” and the evidence obtained, even if it was evidence of illegal activity covered in the warrant, could be thrown out of court. However, this has now changed.
The process of obtaining a warrant, for those of you that haven’t been to law school, involved in the process of obtaining a warrant or haven’t watched Law & Order is as follows. Police determine they want to conduct a search of certain property.
Then application for a search warrant is made to a judge. This application includes a description of the property to be searched, what is being searched for and other details. All of this is supported by an affidavit, or a document signed under oath setting out the probable cause for the warrant – the police generally do all of this. The application, together with the affidavit, is reviewed by the judge. It should be pointed out that the person who is the target of the search is not included in this process as to do so would likely harm the search under the theory that if there is advance notice of the search, potential evidence could be destroyed. Keep this point in mind as it will become important as we progress. Once the independent review of the application and affidavit is conducted by the judge, if the judge determines the police have met the probable cause burden of proof, that it is more likely than not that the evidence the police seek will be found on the premises, the judge will sign the warrant and then return it to the police who will then execute the warrant, or, in laymen’s terms, conduct the search.
So flash forward to the time of the execution of the search. The police are outside of the door of the residence identified on the search warrant. In order to properly execute the search, the police have to knock on the door and say words to the effect of, “Police with a search warrant.” Once this is done, they must wait a reasonable time; then if they aren’t let in, they can use force to gain entry. The law has read that if the “knock and announce” requirement is not met, then any evidence recovered as a result of the search may be thrown out of Court. This means that if the police don’t fulfill this requirement, even if they may find evidence of illegal activity, the evidence would be excluded at Court.
However, this week the United States Supreme Court, having considered this issue, have decided that it was time to relax this rule.
In a close 5-4 decision, the Court decided that while entering a residence to conduct an otherwise legal search without first knocking and announcing their presence was unconstitutional, it was not a serious enough violation of an individual’s constitutional rights to warrant the exclusion of the evidence.
The case before the Court originated in Detroit, Michigan where police conducted a no knock search and found crack cocaine. While the Defendant was convicted, the conviction was later overturned on the grounds that the search was unconstitutional. This appeals followed all the way the United States Supreme Court.
Where before this ruling, evidence obtained after a “no knock” warrant would have been excluded now the penalties would be something akin to an administrative discipline or civil liability. Part of the majorities’ reason in changing the law was that by having the police “knock and wait,” time was being given to destroy or damage evidence the police would discover.
The dissent in the case however took a different view of the matter. The minority of the justices felt that the opinion, without precedent, had effectively destroyed the best protection against such searches – the exclusion of the evidence. The dissent went on to discuss how waiting a reasonable amount of time before entering a residence, particularly in the case they were considering, would not have resulted in the destruction of the evidence and, overall in any case the potential exclusion of evidence served to underline the fact that the minorities’ view of modern police practices was that present discipline in police departments was insufficient to combat knock and announce warrants.
The majority of the justices, in an opinion written by Justice Antonin Scalia, felt that the cost to society was too high to allow otherwise guilty defendants to go free when evidence, apart from the knock and announce concerns, was thrown out of court. “Resort to the massive remedy of suppression of evidence of guilt is unjustified,” Scalia wrote in his opinion. The basis of the majorities’ argument was that since 1961 when the high court first imposed the exclusionary rule to protect against warrantless, searches had changed. Scalia cited that there was evidence that the police forces across the country today took the constitutional rights of the citizens seriously.
As would be suspected, public interest groups on each side of the issue lauded and criticized the decision.
Following the decision, unless there is an applicable state law to the contrary, officers, when executing a warrant will no longer have to comply with the knock and announce prior to executing a warrant.
One interesting aspect of this case, separate and apart from the change in the manner in which search warrants will be executed, was the court dynamic in reaching the decision. As will be recalled, there have been two recent additions to the Supreme Court. Justice Sandra Day O’Connor announced her retirement and then Second Circuit Appellate Judge John Roberts was appointed to fill her position. However, prior to his confirmation hearings, Supreme Court Chief Justice William Rehnquist died. John Roberts was then nominated to full his position and was confirmed by the Senate. Judge Samuel Alito was nominated to fill O’Connor’s position. While Rehnquist was a conservative justice, O’Connor was not. This case was initially argued while O’Connor was still on the Court; however, following her departure, the Court announced that they would hold arguments again.
This was a sign that most commentators took to mean that following O’Connor’s departure the Court was evenly divided 4-4. Given O’Connor’s questions in the first argument, it was believed that she sided with what has now become the minority. The effect of this is that a clear conservative side of the Court has been established that is made up of Chief Justice John Roberts and justices Antonin Scalia, Clarence Thomas and Samuel Alito. This goes to counter a liberal minority on the Court comprised of Justices Stephen Breyer, Ruth Bader Ginsberg, John Paul Stevens and David H. Souter. Given this 4-4 split, the vote of the ever fluid Anthony Kennedy will become quite important in years to come.