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No-Knock Warrants: A Travesty Against The Fourth Amendment
In the wake of the infamous 2019 Harding Street “no-knock” raid by the Houston Police Department that left a couple and their pet dog dead and the murderous 2020 “no-knock” raid by the Louisville Metro Police that left Breonna Taylor dead and her boyfriend wounded, there have been serious state and national legislative efforts to either reform or ban the use of these too often deadly warrants.
For example, in 2023, the Texas House of Representatives overwhelmingly passed a bill that would have placed serious restrictions on “no-knock” raids. Those restrictions were:
- Limited the circumstances in which a no-knock warrant could be issued.
- Restricted the judges who could issue no-knock warrants.
- Amended the Texas Code of Criminal Procedure to add new provisions on no-knock warrants.
The bill, however, died in the Texas Senate. With forceful opposition coming from law enforcement, it is more likely than not that Gov. Greg Abbott would veto any effort to reform the use of no-knock warrants.
So, while no-knock warrants remain legal in Texas, some counties and cities have either eliminated or placed restrictions on their use. For example, in the immediate wake of the Harding Street Raid tragedy, the Houston Police Department announced that the use of the warrants would be curtailed, and before one can be sought, it must have the approval of the police chief.
THE LAW GOVERNING NO-KNOCK WARRANTS
As we reported in 2022, no-knock warrants are dangerous to both the homeowner and the law enforcement officers executing the warrant. As many as 80,000 no-knock raids are conducted each year, according to Peter Kraska, a criminologist at Eastern Kentucky University, and nearly half of them are carried out by highly militarized SWAT teams trained to kill any real or perceived threat risk.
The New York Times reported in March 2017 that between 2010 and 2016, 81 civilians and 13 officers died during SWAT raids, including 31 civilians and 8 officer who died in no-knock raids. More than half of the warrants targeted people of color, and half of the civilians killed were Black like Breonna Taylor.
No-knock warrants have their origins back to the Nixon administration’s “war on drugs.” Over the next 25 years, these warrants became more prevalent beyond drug searches, which hold some risk of evidence destruction, to cases where there is minimal risk of evidence destruction. With this expanded use of no-knock warrants, the traditional “knock and announce” warrants became more expendable.
That expansion can be attributed to four cases during the decade between 1995 and 2006 in which the U.S. Supreme Court gave increased constitutional encouragement to the no-knock warrant practice.
In 1995, the Court in Wilson v. Arkansas carved out an exception that the police can conduct a no-knock raid when it is conducted to prevent the destruction of evidence. In an attempt to either clarify or expand this evidence destruction exception, the Court two years later in Richards v. Wisconsin held that the police may lawfully conduct a no-knock raid when they have “a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it could inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence …”
Judges and magistrates, particularly those with pro-law enforcement beliefs, saw the inherent discretion in this “reasonable suspicion” standard as a constitutional license to gratuitously issue these warrants regardless of the potential for excessive or lethal force during the execution of the warrants.
Six years after Richards, the court in United States v. Banks granted certiorari review to decide the standard of reasonableness to the length of time police with a warrant must wait before entering without permission after knocking and announcing their intent in a felony case.
The court concluded, “Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied … the Fourth Amendment, even without refusal of admittance.”
Finally, in 2006, the court in Hudson v. Michigan gave virtual unlimited approval of no-knock warrants by holding that the Fourth Amendment’s exclusionary rule does not require the suppression of evidence seized during an illegal no-knock search.
These four cases have permitted numerous federal and state courts to insulate no-knock warrants from constitutional challenges and, at times, with no legal scrutiny at all.
THE BEST WAY TO END THE NO-KNOCK SEARCH PRACTICE
No-knock searches have no place in legitimate law enforcement. They are designed to invoke fear, even terror, in the people subjected to them. They have both the appearance and scent of Third World police forces enforcing the rules and edicts of a dictatorship. A reasonable argument can be made that that is the real origins of no-knock raids.
But how to get rid of them in a Democratic society?
Writing in an edition of the 2019 St. John’s Law Review, Brian Dolan, a J.D. at the university, exhaustively analyzed the no-knock history and the reasons why it should be sent to the Fourth Amendment trash bin. In conclusion, Dolan offered these comprehensive solutions for how to remove no-knock searches from our constitutional legal system:
“First, state legislatures should enact laws expressly prohibiting state magistrates from issuing no-knock warrants. Anything short of this, such as the Utah legislation eliminating no-knock warrants in drug possession cases, is a half-measure. Two states, Florida and Oregon, already completely prohibit the use of no-knock warrants. It is clear that no-knock warrants are a tool fraught with inherent danger and, if states are serious about ensuring the safety of both civilians and police officers, are a tool that should be abandoned entirely. A return to the time-tested knock-and-announce requirement is the most meaningful way to accomplish these goals. Of course, proponents of no-knock warrants argue that they ensure officer safety. However, the reality is that although no-knock warrants are a relatively recent development, the danger associated with their use is already apparent. The knock-and-announce requirement, which is also meant to ensure officer safety, has demonstrated its value and importance over several centuries. Moreover, ending the use of no-knock warrants does not necessarily preclude police from making an unannounced entry when they determine on the scene that an appropriate exigency exists. The on-the-scene assessment of circumstances is critical for police to determine if changed circumstances have obviated the need for a no-knock entry or suggest that a no-knock entry is unwise; however, in practice, police do not always make an on-the-scene assessment once they have obtained a no-knock warrant. Eliminating the use of no-knock warrants, in connection with the two other legislative proposals discussed below, would ensure that police perform a complete, thorough assessment of the situation when they arrive on scene to execute a search warrant before deciding whether to dispense with knocking and announcing their presence.
“Second, states should enact legislation requiring execution of traditional search warrants during daylight hours, roughly defined as between 6 a.m. and 10 p.m. It is relatively common to execute traditional knock-and-announce search warrants at night. Serving traditional knock-and-announce warrants in the middle of the night undermines the entire purpose of the knock-and-announce requirement because it is unlikely that a person who is asleep will be able to wake up, get out of bed, and reach the front door in the very short amount of time that elapses before police force entry. In order for the knock-and-announce requirement to serve the purposes it was historically meant to serve, persons inside the home must have a real, meaningful opportunity to answer the door and comply with the lawful execution of the search warrant. The most effective way to guarantee that residents have such an opportunity is to require execution of all search warrants during daylight hours. This is when people are more likely to be both awake and able to get to the door, or out of the house altogether, substantially reducing the risk of a confrontation. Moreover, there is evidence that police typically comply with the warrant instructions when a judge signs off on a warrant requiring service during daytime hours.
“Finally, in order to ensure meaningful compliance with the knock-and-announce requirement, state courts should apply the exclusionary rule to evidence obtained through knock-and-announce violations under their state constitutions, as a few state courts have already done. In reaching its conclusion that suppression is not necessary in cases of knock-and-announce violations, the United States Supreme Court grossly underestimated the historical and practical importance of the knock-and-announce requirement and the purposes it serves. These interests are far from inconsequential, and as recent history has made clear, no-knock warrants come with a significant risk to the safety of both police officers and persons inside the house, not to mention people nearby who might be caught in the crossfire or hit by stray bullets. In order to ensure meaningful compliance with the knock-and-announce rule, application of the exclusionary rule to evidence obtained through knock-and-announce violations is essential. State courts can provide greater constitutional protections for their citizens under their state constitutions than the federal Constitution requires, and state courts should take advantage of this power with regard to knock-and-announce violations.
“Opponents of applying the exclusionary rule to knock-and-announce violations argue that alternatives to suppression, such as civil lawsuits, internal police discipline, and citizen review boards, are sufficient to deter knock-and-announce violations. However, available data and experience suggest that these alternate remedies are grossly insufficient, and that the exclusionary rule is the most effective way to deter police misconduct. Of course, there is a social cost that comes with suppressing evidence, but the social cost is no greater in the knock-and-announce context than when the exclusionary rule is applied to other Fourth Amendment violations. The deterrent value of exclusion outweighs the social cost of fewer convictions because of the very real risk to the safety of both police and civilians associated with no-knock entries. Therefore, to ensure meaningful compliance with the knock-and-announce requirement and deter violations, application of the exclusionary rule to knock-and-announce violations is indispensable.
“Taken together, these three proposals provide a more comprehensive framework to end the use of no-knock warrants and usher in a return to strict compliance with the knock-and-announce requirement than current efforts to reform no-knock warrant use.”
We agree –and so did two former prosecutors writing in a 2009 edition of The Texas Prosecutor. Tom Bridges, former District Attorney in San Patricio County and L.E. “Ted” Wilson, former Assistant District Attorney in Harris County, made these observations about no-knock searches:
“[We] strongly recommend that officers continue to abide by the pre-Hudson rulings in this area. The potential exclusion of evidence from the courtroom is not the only consideration here. Because the method of entry is no less a factor when considering Fourth Amendment reasonableness, other remedies are available to those individuals who can show harm when officers fail to knock and announce. Saying ‘civil liability is an effective deterrent here,’ The Supreme Court practically invited aggrieved parties to initiate civil rights suits while observing such suits are proceeding in the lower courts ‘unimpeded by assertions of qualified immunity.’ Ouch! One could win a battle here but lose the war, or more specifically, lose his pension due to a bad turn of events during execution of a search warrant. Numerous unexpected contingencies are the rule rather than the exception during warrant executions; when those circumstances give rise to liability claims, one needs to be able to show he operated within procedures approved by the courts and the legislature. Continue to follow the presumption that execution of search warrants will be preceded by knocking and announcing presence and purpose. Be prudent when you believe the facts of a particular case rebut that presumption.”
Again, we agree—this time with the rational former prosecutors.
Take the first step toward protecting your freedom by contacting us now
Testimonials
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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