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Law of the West

John Scorsine
Peyton, Colo.

In this day of security being the buzz word of the times, it is ironic that we have this last week become just a bit less secure in our homes. Since 9/11, when we have been working hard across all facets of government to strengthen homeland security, the courts have been whittling away at our individual domestic security and privacy. Some of our most treasured rights are slowly, incrementally, but consistently being sacrificed upon the alter of giving greater latitude to law enforcement to investigate crime. This is most readily apparent in the realm of search warrants and the Supreme Court.

Imagine sitting on your couch, watching television, and hearing someone outside your door shout, “Police, search warrant.” Three seconds later the door comes crashing in. No door bell; no knock; no opportunity to open the door in a reasonable and dignified manner. Such was the case in 1998 for Booker Hudson of Detroit, Mich. His case has wound through the courts these last seven years finally reaching the U.S. Supreme Court. There the question was what happens when the police violate the “knock and announce” standard. You see, it wasn’t that the police searched the wrong place … they got the right man. Mr. Hudson was in possession of large quantities of illegal drugs and a loaded firearm was within easy reach.

The idea of “knock and announce” is an ancient one. With its roots in the English law of the 17th and 18th century, the idea that law enforcement must generally knock, announce their presence and wait a reasonable time for the occupants to open the door, is a significant component of the Fourth Amendment to our Constitution. It is written into federal law and is even part of the Espionage Act.

There most assuredly has always been an uneasy balancing between this rule, the safety of officers and the potential destruction of evidence. What is a reasonable time to wait for someone to open a door so law enforcement can enter? The law has provided an avenue, when there are real concerns about safety, to have a judge waive the requirement of “knock and announce” ” a “no-knock” warrant. This wasn’t Mr. Hudson’s situation. The police had just a run of the mill search warrant ” nothing special, no extraordinary circumstances.

Normally, when the police violate the Fourth Amendment, the remedy is that the evidence that is seized is thrown out of court. In this case, the Supreme Court held that need not be the case. Recognizing the balancing of interests, and that a violation of the “knock and announce” rule itself can cause, rather than prevent, violence ” a startled occupant acting in self-defense shooting his home’s intruders ” the court none the less said that suppression of evidence is the last resort for violations.

Basically, the court held that the “knock and announce” rule is meant to (1) protect both the police and the occupants from an escalation of violence that misperceptions may create; (2) preserve property by preventing the needless breaking of a home of occupants that remain presumed innocent and presumed to be willing to comply with a lawful order; and, (3) afford dignity and privacy to the occupants ” you can pull some clothes on before you answer the door or otherwise collect yourself. The court felt that the rule was not meant to protect against the inappropriate seizure of evidence. Hence, the Exclusionary Rule ” the rule that would throw the evidence out of court ” would not apply. Rather, the remedy for someone injured by the failure of the police to abide by the “knock and announce” rule is to bring a civil lawsuit for the violation of your rights.

With the court’s decision, one can only speculate about how the police will behave in the future. What will be the outcome of a tragic case that without knocking and announcing the police enter a home only to exchange gunfire and death with an innocent resident believing that he was defending his family against violent home-breakers? In our zeal to ensure that the guilty are punished, we have sacrificed a little of our right to privacy. How many more sacrifices can we make until there is no privacy left?

The information provided in this column is based upon general principles of law and should not be relied upon in any manner. It is not the intent of this column, its author, publisher or the Fence Post to provide legal advice to any person. You should address specific legal questions to your family lawyer. In Wyoming, the State Bar can refer you to competent lawyers in your community by calling (307) 634-7823. In Colorado, call the Metropolitan Lawyer Referral Service at (303) 831-8000. Readers in Nebraska can receive referrals from the State Bar Association by calling 1-800-742-3005.


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