9th Circuit Eviscerates 'Knock and Announce' Warrants

The 9th Circuit has ruled that a "Knock and Announce" warrant means cops can announce and skip the knock. The case is U.S. v. Combs, available here. (pdf) CrimProf blog has the details, and some criticism of the decision.

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.

After analyzing the opinion, Prof. Mark Godsey says,

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.

By the way, one of the reasons I like CrimProf blog so much is that the authors don't sound like law professors--you don't need to be a lawyer to understand it and they write about every day type cases - drug sniffs, search warrants, fingerprints, etc.

Update: I fixed the title and first line from "no knock" to "knock and announce".

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  • Re: 9th Circuit Eviscerates 'Knock and Announce' W (none / 0) (#1)
    by Sailor on Fri Jan 14, 2005 at 01:02:16 PM EST
    Uh, I think you mean "Knock and Announce" warrants. The headline was confusing until I saw the article. And what a travesty, knock and announce, means knock and announce. I don't see how the court could construe it any other way. And the cops saying it was less dangerous to batter the door down and send scared, screaming armed men into the house than knocking because "active meth labs can explode" is truly moronic. [you are right, I'll fix it.]

    Re: 9th Circuit Eviscerates 'Knock and Announce' W (none / 0) (#2)
    by Richard Aubrey on Fri Jan 14, 2005 at 02:00:44 PM EST
    Three questions: What is the purpose of knock and announce? Is that purpose not served by bellowing loudly from a distance? Do we know if the bellowing in this case was sufficiently powerful that the drug manufacturers inside the house got the required warning? Considering that knock and announce currently means "POLICEBAM" within a second, the loudspeaker from outside seems like a month's warning to flush the evidence down the toilet and pick up the guns. A bad idea in all ways, but to insist that it failed to warn the bad guys rests on making the case the bad guys couldn't hear. Was that case made?

    Interesting. "Knock and announce" means, strictly and only "knock" and "announce", yet nearly every other aspect phrase in the criminal code is subject to multiple interpretations, as long as those interpretations serve the interest of the obviously guilty client, that is.

    What is the purpose of knock and announce? To announce to the occupants of the specific residence being searched that the police are going to search it and have a warrant. Is that purpose not served by bellowing loudly from a distance? No, because its quite possible for it not to be clearly understandable even if loud, or to be clear what house it is being directed at. Knocking is recognizable as directed at the particular residence. Blaring from the street is not.

    From the decision itself: "Soto hit the door on the doorknob side with the battering ram four or five times without success. His team leader instructed him to hit the hinged side of the door. After two hits, the door broke open and the officers entered the house. Soto estimated that he spent a total of ten to twelve seconds pounding on the door with the battering ram." He hit the door with a battering ram 6 or 7 times? Sounds like knocking to me. Are we then simply arguing about the fact the police "announced and knocked" rather than "knocked and anounced"? Either way, if this guy was unaware by the time they broke the door down that the police were outside, knocking on the door politely would not have made a difference. He would have had to have been deaf.

    I wouldn't open my door to loudspeakers blaring in the street or walk over to answer it if I heard loud crashing on the other side (LoL, especially if I had a meth lab in my living room!). However, as they had a "search" warrant and not an "arrest" warrant, strictly speaking don't they have to give the occupants a reasonable chance to cooperate?? I'm thinking of a situation in Boston where a swat team had the wrong apartment and executed a search or arrest warrant on an elderly minister. When a bunch of cops battered his door down and burst inside with their usual style and grace, he promptly had a heart attack and dropped dead. Has anybody ever heard of a Meth lab exploding??

    Re: 9th Circuit Eviscerates 'Knock and Announce' W (none / 0) (#7)
    by pigwiggle on Fri Jan 14, 2005 at 03:08:12 PM EST
    “Has anybody ever heard of a Meth lab exploding??” Plenty of volatile solvents and reagents; and perhaps open flame in the less sophisticated labs. A colleague of mine had the opportunity to make some meth for our attorney general (Utah). He said the reagent list was fairly unfriendly.

    "Has anyone ever heard of a meth lab exploding?" Duh. http://www.google.com/search?sourceid=navclient&ie=UTF-8&rls=GGLD,GGLD:2004-37,GGLD:en&q=meth+lab+explodes

    [URL fixed.} "Has anyone ever heard of a meth lab exploding?" Duh. Click here to find out.

    Re: 9th Circuit Eviscerates 'Knock and Announce' W (none / 0) (#10)
    by ras on Fri Jan 14, 2005 at 03:50:47 PM EST
    "Has anyone ever heard of a meth lab exploding?"" Sure, just around the corner from where we used to live - say, 100 yards away. The drug dealers (whom the landlord had been trying to evict) suffered the most, with some pretty awful burns. In any event, I too wouldn't risk my kids losing a parent (i.e. my life) over what constitutes "fair warning" to a meth lab.

    Are we then simply arguing about the fact the police "announced and knocked" rather than "knocked and anounced"? Knock and announce -- the knock alerts the residents that someone is seeking entry to the particular house, and the announcement tells them who and on what grounds. Announce and knock -- without the knock coming first, the announcement isn't specific (particularly if its from the street over loudspeakers, with no reason for the particular targets to pay attention). And so "announce and knock" amounts to "knock without announcing".

    If they didn't knock first because they were afraid the lab would explode, what were they doing with the battering ram? Is the contention that the lab would have exploded if they did a knock and announce, but not if they repeatedly struck the door with a battering ram?

    Lousy idea, lousy excuse. But the Fourth Amendment violation complaint is kind of lame. The usual technique is to knock, announce (or the reverse) and blow through the door in about a second, thereby vitiating any Fourth Amendment privilege the inhabitants may have had. The announcement from the curb by loudspeaker seems more constitutional. I suppose even if the cops had said we're going to get somebody in that building, without specifying the apartment, the guilty parties would probably have figured it out. The idea that they might not have heard is both possible and meaningless, considering that hearing the knock, announce, and door shattering happens so rapidly under current tactics that hearing the announcement or knock is meaningless.

    What a lovely ends-justifies-the-means approach to the 4th Amendment. This sounds like the sort of logic regularly spewed by intellectual giants such as Scalia. Expect a lot more of the same in the coming months.

    The cops' "justification" for their failure to knock is a load of garbage. Let's get this straight--the story they're trying to sell is that they didn't knock because they were afraid an alleged active meth lab would blow up? It didn't explode during the time they had the location under investigation. It didn't explode during the time they took to go to court to get the warrant issued. It didn't explode during the time they stood outside with the loudspeaker. And they were *so* worried about the lab exploding that they stood outside the location with a battering ram, and probably spent a considerable amount of time in the location itself collecting evidence--all while they were scared the alleged meth lab would explode? However, here's the unfortunate reality (at least in my jurisdiction of practice)--even when cops knock, it's not as if they politely wait for you to yell on the other side of the door, "Hold on a sec! I'm on my way!" The NYPD's version of "knocking" means "bang on the door once, yell 'police' and immediately begin the process of kicking the door down."

    LV. If the Fourth Amendmentness of knock and announce is time for the inhabitants to do...something, then the current practice gives them less time or practically none. What is the Fourth Amendment benefit to the inhabitants of the current knock and announce if it isn't time to react? Let's have something besides hyperventilating? What about the Fourth Amendment is served by the current practice?

    Nothing in the 4th amendment or in any case law suggests cops executing a (search or arrest) warrant on/at a residence must hang on a second or otherwise give the occupants sufficient time to destroy their dope. As for criminal statutes being interpreted to "serve the interest of the obviously guilty client", two points. First, in this world, statutes are interpreted by the courts -- now packed with ex-prosecutors -- to favor the prosecution at virtually every turn and any suggestion to the contrary is simply not reality. Rose Bird is dead. Point in fact: this very case we're all discussing here. Second, did the cops know the guy was "guilty" before they entered? Or are you saying that if a person ends up being guilty, the cop's conduct must have been lawful? Law and order types always resort to the claim, "but he was guilty, though, right?" How many people who are not charged because no evidence was discovered during a search will file a motion in the non-case to suppress the nonexistent evidence that is not being used against them to prove the crime for which they were not charged? How many court cases review such motions? Whatever, the law is not and never has been that once guilt is established, the constitution ceases to exist as to the defendant.

    Un, your last paragraph doesn't seem to apply to the case at hand, guilt not having been established. My question, and I couldn't tell if you were answering it, is what Fourth Amendment benefit is served by the current knockannouncecrash tactic which is vitiated by yelling from the curb first?

    Unwarranted, The issue of guilt that I was raising is thus: The guy was guilty. He had an active, cooking meth lab going when they entered the house. The only reason we are hearing this lame "knock and announce, not announce and knock" argument is that the guy was caught red handed. For the reasons stated above, such as banging on the door with a battering ram 6-7 times sure sounds like knocking, I don't think he had much of an argument to begin with. Which raises another issue: Given the minimal chances this argument ever had (slim to none), was this guy's lawyer just running up the billable hours? As for the interpretation question: My point is that most of the lawyers here will argue that any phrase in the legal code is open to interpretation and redefinition if they think doing so offers an avenue for argument. And aside from the question of whether this is just a way of running up the hours on a case, this is perfectly acceptable. Everyone is entitled to the best defense possible (although whether this guy got the best defense possible is another issue altogether seeing as how his lawyer made a completely lame case). But for the same people who continually argue that all law is open to interpretation to suddenly argue that this one specific phrase "knock and announce", which appears nowhere in the Fourth Amendment and which the judge issuing the ruling showed quite well is not an absolute, is written in stone and cannot be interpreted in anyway is at least intellectually dishonest, if not down right hypocritical. That door swings both ways. I am not, in general, a law and order type, although I am also not the type who wants to give every criminal a free pass on the merest technicality, which is exactly what was being attempted here. There is no "evisceration" of the Fourth Amendment as TL breathlessly describes it in this decision. It is a reasonable decision based on a reasonable application of existing law and practice (read the decision). Finally, with regard to the issue of meth labs exploding: The logic would most likely run something like this. Meth labs are, in fact, filled with dangerous chemicals. Cooking meth labs do, in fact, have a tendency to explode if something stupid is done, like knocking things over or mixing the wrong chemical together. Therefore, the police felt that it would be better, seeing as how they could see the lab was cooking, to stand back and give the guy in the house ample warning via the PA system, so that he did not hear "knock-knock - 'police' - "bang", and jump up and do something stupid that could cause an explosion. Did they succeed in this attempt? I don't know. I can't find any indication that this guy ever admitted that he had heard the PA announcement, but that doesn't mean he didn't. And as I've noted before, if he failed to hear the battering ram hitting the door 6-7 times, the normal knock and announce procedure would have been meaningless anyway as he would not have heard it either. End of the road? This guy will be suing his attorney next for failure to provide an adequate defense. And he just might win.

    I'm reading this from the view of the hearing-impaired like me. A loud knock I can hear, but anything coming from a loudspeaker is gibberish. The thought of cops mistargeting me for this tactic is really scary. I'd probably get killed because I wouldn't know what they were talking about.

    Re: 9th Circuit Eviscerates 'Knock and Announce' W (none / 0) (#21)
    by Sailor on Sat Jan 15, 2005 at 02:33:43 PM EST
    "Nothing in the 4th amendment or in any case law suggests cops executing a (search or arrest) warrant on/at a residence must hang on a second" Whoa, if you're a lawyer I bet all your clients can sue for ineffective counsel. Try this link or this link or even this one

    justpaul, I tend to agree the defendant's argument re knock notice was weak, perhaps even "lame", but unless it is frivolous, the lawyer had a duty to make the pitch. Who knows? At this point, in this strange post-Booker world, I could see Scalia authoring an opinion reversing the oft reversed 9th Circuit. Blakely sure blindsided me. I think the people's argument re the possibilty of explosion is weak as well. Using a battering ram rather than a rap on the door hardly made the situation safer or made it less likely the cook would jump. What, was he going to flush the lab down the toilet? Light a cig? The door does indeed swing both ways: defense attorneys and prosecutors alike will argue a particular statute should be read narrowly and literally on Monday, only to argue the opposite on Tuesday. It's just the nature of litigation -- you have to take the position with the most potential benefit for the client, like the position (or the client) or not. So who's the better lawyer? The one who absolutely agrees with the client's position and argues it ferociously, or the lawyer who is entirely opposed to the client's position, and argues the client's case ferociously?

    January. Doesn't make any difference. The current practice is to slam through the door as soon as possible after "knock and announce" in order to deny the inhabitants any time to react. The practical difference between that and no announce and no knock is minimal.

    ya see, Richard, there may be many of who think that the knock and announce actually needed to be tightened up. Like give people enough time to actually answer the door before you break it in and jump through the doorway with an assault weapon. I think maybe some of us felt that the possibility of picking the wrong house, or unreliable tips leading to warrants out to be considered in the law enforcement practice. For example, see the Ventura County guy who was shot and killed in his own home based on shoddy police work. He was on his stairs with a gun in his hand. Do we have a constitutional right to have a gun in our hands in our homes? I think maybe we do. Do we have a constitutional right to have a gun in our hands in our homes when someone is breaking into our homes? I think maybe we do. It's pretty clear that the exercise of our constitutional liberties can be fatal. But hell, why should we make police knock and give criminals a chance to flush dope down the toilet. After all, which of these matters is more important: our right to be safe and secure in our homes our right to bear arms and defend ourselves when attacked or the war on drugs? You make the call. But you may not have much time, cause they could be knocking the door in right now.

    Conscious, you are either a liberal or a kid. I pointed out something. You accused me of supporting it. Seen that crap before. But, just in case you're a kid and not a liberal, I will explain it one more time. The current practice is to go through the door fast. If there's supposed to be some time interval between announcement and entry, the current practice doesn't provide any, or as little as practical. Bellowing from the curb probably does provide more time. You want more time? Loudspeaker from the curb. What's your problem with that?

    RA - I am 50 something, a bit of a kid, and a lifelong progressive. My problem with this decision. I think protecting our 4th amendment rights is really important: 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. It seems to me that our right to be secure in our homes requires that police, even armed with a warrant and battering ram, must knock, announce, and give us a reasonable amount of time to respond before they break down the door. It founding father stuff. It American values and tradition. It means we will allow some criminals to go free because we value freedom and process so highly. It's a values thing. You figure it out.

    CA, They DO NOT have to wait if, as in the case starting this thread, the cops reasonbly believe evidence will be destroyed or delay would pose a danger. Knock notice is but one question in the "reasonableness" standard under the totality of the circumstances. RA, you make a good point; perhaps the better argument wuold have been that the entry was unreasonable regardless of whether the knock or announce came first.

    Yes, I am aware that they DO NOT have to wait under current interpretation of the 4th amendment. I just think the current interpretation is incorrect. Sort of like the Dredd Scott - property vs. human rights - decision. Sometimes our republic goes off the deep end or makes the wrong call. The republic is self-righting to the extent that citizens continue to examine and explore the freedoms and constitutional rights granted to us by the founding fathers. We sometimes go backwards. The war on drugs makes as much sense as Prohibition. Giving up our fourth amendment rights to be secure in our homes for the questionable purpose of jailing idiots for cooking meth in their homes is not a deal I am willing to make. We advance through the hard work and straight thinking of the citizens. Reviewed in the light of the freedoms that the founding fathers held to be so important that they wanted them enumerated and specifically listed and protected before the Constitution would be accepted. Patriots. I pay my respects to their wisdom and commitment.

    I'm not sure who said it, or even if this is a direct quote. But "It is far better to let 1000 guilty men go free than to allow 1 innocent go to prison." If the bag of dope is flushed, or the perp runs off, well that's life. Happens all the time. The truth is that the police should err on the side of caution, even if their leads are concrete. No one knows exactly what is going on behind closed doors. There are many examples of searches going horribly wrong, or even being at the wrong house. As a citizen of the United States, I believe that individual rights should preempt the rights of the police to do any kind of search of private property. That's just my opinion, for what it's worth.