John Bernans, Associate Member, University of Cincinnati Law Review
The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”[1] The doctrines of the Fourth and Fifth Amendments apply to all government invasions into constitutionally-protected areas, such as the home.[2] In Mapp v. Ohio, the Court held that any evidence obtained through a violation of the Fourth Amendment would be suppressed at trial.[3] However, when making an arrest or executing a warrant, a law enforcement officer may break down an outer or inner door or window of a dwelling if, after providing notice of his intention to make the arrest or to execute the warrant, he is refused admittance.[4] In common parlance, this is called the “knock and announce” rule. While most courts have held that the exclusionary rule is not the proper remedy for knock and announce violations, the Supreme Court of the United States has held the knock and announce rule is applicable under certain circumstances.[5] The Supreme Court has stated that a civil remedy is perhaps the best option for knock and announce violations.[6] However, the Court stated an important caveat when it held that the knock and announce rule should still be emphasized because of its interests in protecting life, limb, and property. The Ohio Supreme Court addressed this issue in the case of State v. Bembry. Although the exclusionary rule should not apply, the knock and announce rule is a component of criminal procedure that should be emphasized.
The Progression of the Knock and Announce Rule
The knock and announce rule originated in the common law. At the time of the Framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling but generally indicated that he first ought to announce his presence and authority.[7] In Wilson, the Court held that this common-law “knock and announce” principle formed a part of the reasonableness inquiry under the Fourth Amendment.[8] The Court stated, “although the common law generally protected a man’s house as ‘his castle of defense and asylum,’ common law courts long have held that ‘when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the King’s process.’”[9] However, the Court also stated that “but before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.”[10] However, the Supreme Court in Wilson emphasized that not every entry must be preceded by an announcement.[11] The Court reasoned the Fourth Amendment’s flexibility requirement should not be read to mandate a rigid rule of announcement that ignored countervailing law enforcement interests.[12]
The flexibility of the knock and announce rule allows the necessity of an announcement to be determined on a case-by-case basis. While the general rule is that the police must knock and announce their presence before a warrant can be executed, whether or not this rule is applicable in a specific instance must be determined on a case-by-case basis.[13] The Court recognized in Wilson that the knock-and-announce requirement could give way “under circumstances presenting a threat of physical violence,” or “where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.”[14] In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing destruction of evidence.[15] The Courts in Wilson and Richards both emphasized the validity of the knock and announce rule and the application of the rule on a case-by-case basis. The only issue left unclear are the remedies for knock and announce violations.
Proper Remedies for Knock and Announce Violations
Civil remedies, not the exclusionary rule, are the most appropriate remedies for knock and announce violations. In Hudson v. Michigan, the Court explained, “the exclusionary rule generates ‘substantial social costs.’”[16] The Court has been very cautious about expanding the reach of the exclusionary rule and stated that suppression of evidence has “always been [the Court’s] last resort, not [their] first impulse.”[17] The Court in Hudson explained that suppression of evidence found in a violation of the knock and announce rule provides little deterrence to police but has a detrimental effect on society.[18] Moreover, the balancing of individual rights versus the societal impact plays an important role in Hudson decision.[19] The Court explained that there were better options that did not have such a negative societal impact.[20] The Court noted the importance of civil rights suits under 42 U.S.C. §1988(b) that are available to individuals who claim a violation of the knock and announce rule.[21] Overall, the Court held the exclusionary rule is not the proper remedy because of its detrimental effect on society and other avenues for justice.
The Supreme Court of Ohio agreed with Hudson in that the exclusionary rule is not the proper remedy for a knock and announce violation.[22] In Bembry, law enforcement supervised two “controlled buys” of heroin from a suspect and subsequently obtained a warrant for search of the suspect’s apartment.[23] While executing the warrant, the officers knocked several times and eventually entered with a battering ram when the suspect did not come to the door.[24] The trial court in Bembry granted the defendant’s motion to suppress finding that law enforcement entered without any exigent circumstances.[25] The Supreme Court of Ohio reversed the trial court’s decision and held that the facts of Bembry’s case were almost identical to Hudson.[26] In both cases, the police arrived at the suspect’s home with a valid warrant to search the property. The police in Bembry announced their presence but only waited approximately fifteen seconds.[27] The Supreme Court of Ohio ruled the exclusionary rule was not the proper remedy and the trial court should have allowed the evidence obtained in the search[28]
Should the Knock and Announce Rule still Apply?
The exclusionary rule is not the proper remedy for violations of the knock and announce rule. The Court in Hudson was correct that the societal costs of suppressing evidence outweighs the potential benefits.[29] This is because the knock and announce rule becomes relevant only after a warrant has been issued, for if a warrant has not been issued, the search or seizure is presumptively unreasonable regardless of whether police gave notice of their presence.[30] Because law enforcement must have a valid warrant, suppressing evidence found after a knock and announce violation would cost society immensely. The Bembry court stated there is also a danger that the exclusionary rule would cause police to risk a knock and announce violation in exigent circumstances where the rule would not have been required.[31] The “substantial social costs” that the Court speaks of in Hudson details how if the exclusionary rule were to be applied to a knock and announce violation, society runs the risk of setting dangerous individuals free when law enforcement did in fact have probable cause and a valid warrant.[32]
Instead of an exclusionary remedy, citizens who bring suits because of a knock and announce violation should seek civil relief. In Hudson, the Court pointed to 42 U.S.C. § 1988(b).[33] Civil relief is the best option for relief for a knock and announce violation. That is because law enforcement came into an individual’s home with probable cause and a valid warrant. However, if there is unnecessary property damage or personal injury resulting from the knock and announce violation, an individual should be entitled to seek damages. The Court in Hudson detailed that two of the interests of the knock and announce rule were to protect human life and limb against violence from an unannounced entry and the protection of property.[34] These are interests that could be protected through civil remedies.
Though the knock and announce rule has been limited, it is an important principle of criminal procedure. This is not a rule that should be eliminated due to the potential for physical harm and the destruction of property. The Supreme Court emphasized that the knock and announce rule aims to protect life, limb, and property.[35] Hudson emphasized the potential for violence if police come into one’s home abruptly and unannounced.[36] For example, an individual who would have otherwise been compliant could be startled, thinking someone is breaking into his or her home. Moreover, an individual could think they are defending their home while law enforcement believes that the individual is resisting arrest. For this reason, a higher emphasis should be placed on the knock and announce rule and victims should be allowed to obtain relief for violations of this rule in civil court. If law enforcement knows that they will pay a high price for not announcing their presence, fewer knock and announce violations will occur. Ideally, this system could strike a better balance between law enforcement authority and law enforcement accountability.
Conclusion
The exclusionary rule is not the proper remedy for a knock and announce violation as it harms society and does not deter police conduct. A better remedy for such violations are severe civil damages. This ensures that society will not be impacted by the suppression of evidence and it will provide increased protection of an individual’s rights. Yet, in the interests of protecting life, limb, and property, the knock and announce rule should be emphasized when examining violations. Citizens should be given the chance to be compliant and open the door to law enforcement before the risk of violence and property destruction becomes imminent.
[1] U.S. Const. Amend. IV
[2] Mapp v. Ohio, 367 U.S. 643, 646 (1961)
[3] See Generally Mapp v. Ohio
[4] R.C. 2935.12
[5] See Generally Richardson v. Wisconsin 520 U.S. 385, 391, 392 (1997)
[6] Hudson v. Michigan, 547 U.S. 586 (2006)
[7] Wilson, 514 U.S. at 929
[8] Id.
[9] Id. at 931
[10] Id. at 931-932
[11] Id.at 933
[12] Id. at 934
[13] Richards v. Wisconsin, 520 U.S. 385, 391, 392 (1997)
[14] Id. at 391
[15] Id. at 394
[16] Hudson v. Michigan, 547 U.S. 586 (2006)
[17] Id. at 591
[18] Id at 587
[19] Id.
[20] Id. at 597-598
[21] Id.
[22] State v. Bembry, Slip Opinion No.2017-OHIO-8114
[23] Id. at ¶2-3
[24] Id. at ¶4
[25] Id. at ¶7
[26] Id. at ¶8
[27] Id.
[28] See Generally State v. Bembry
[29] Hudson, 547 U.S. at 587
[30] Id.
[31] Bembry, ¶22
[32] Hudson, 547 U.S. at 586
[33] Id. at 597-598
[34] Id. at 587
[35] Id.
[36] Id.
