I was recently in a class where a discussion about “No knock” and “Knock & Announce” (K&A) warrant service was discussed. The context of the discussion was in relation to police use of night vision for warrant service. I have previously written an article with some thoughts and guidelines for NVG use by police, the discussion above transitioned to law in general. I have previously heard from other cops about what a “reasonable amount of time” is during the K&A procedure. The reality is that there is no defined time, officers must make that determination for themselves.
The US Supreme court ruled as much in the case US V Banks. In that case officers testified that they waited 15-20 seconds for Banks to open the door. Banks was wanted for distribution of cocaine and the warrant was served at 1400 hours. Banks moved to suppress evidence citing that 15-20 seconds was insufficient since he was in the shower and did not hear officers knocking. Even if he had, the time was insufficient for him to exit the shower and robe himself to open the door.
The court noted that the case turned on “the significance of exigency revealed by circumstances known to the officers, for the only substantive difference between the two situations goes to the time at which the officers reasonably anticipated some danger calling for action without delay.” Specifically at issue was whether it was reasonable for the officers “to suspect imminent loss of evidence” in the period prior to their forced entry. The court countered the defendant’s arguments that the fact that the defendant was in the shower, and that 15-20 seconds was insufficient for the defendant to reach the front door were inconsequential to “the very risk that justified prompt entry.” The court also held 18 U.S.C. Section:3109 is subject to the same exigency exceptions that the Fourth Amendment is.
Nothing in the above states that 15-20 seconds IS PATENTLY reasonable! The court is saying that in this specific case, 15-20 seconds WAS reasonable. It does not follow that other cases, with different circumstances would not require officer to wait longer OR wait less time! Each case is unique and indeed within the same case circumstances may change. Here are a few examples:
Officers have a valid search warrant for a residence and there is probable cause to arrest one of the occupants. The PC is for distribution of heroin and pills and the suspect is a known gang member with multiple weapon and violent crime convictions. He lives with several other known gang members in a two bedroom apartment. Intel shows that there is a large pit-bull on scene and informants have stated that the dog is vicious. The obligatory “AK and Glock 40” have been seen at the location. I would suggest that if Dynamic tactics were chosen for this service, the reasonable officer would say that Knock & Immediate Breach is reasonable. But let’s be clear on why, Officer Safety cannot be an exigency, because that requires speculation that the suspects would resort to violence. The size of the location, proximity of water sources to allow evidence destruction and the numerous persons on scene that are capable of destroying that evidence all lend themselves to less time.
We serve that warrant and everyone is safely taken into custody. Detectives find papers on site that suggest the bad guy is stashing dope or cash at a location across town. Detectives do a telephonic addendum to the original warrant based on this new evidence and a judge grants a search warrant. Some quick intel gathering determines that the home is owned by the gang members Grandmother. She is a deacon in the church, no criminal history, it’s a nice little house with a white picket fence. Same case, but how much time will you give grandma to come to the door? Hopefully WAY more time than the gang shack, but it has less to do with her dangerousness than it does with her ability, or rather probability, that she will destroy the evidence you seek.
The court was specific that it is NOT the time it takes to come to the door, it is the time it would take for exigency to come to fruition. In this sense the size of the location is immaterial, if the opportunity exists. So a small motel room MIGHT be given the time period as a mansion with a Master bedroom on the fourth floor that has an attached bathroom. Because the 4th floor guy can quickly begin to flush evidence, a reasonable time for his location might be 2 seconds since we will clear floor to floor for safety. This in turn takes time, and it is more time for him to destroy evidence.
Prior to marijuana becoming legal in my state, we did a lot of indoor marijuana grows. It was not uncommon for detectives to bring an investigation to its end and have 6-8 residential search warrants for different locations. Most of these had transient grow tenders with no criminal histories and most had hundreds of plants as well as lighting, power diversion, intricate fertilizer and vent systems. Destroying that by flushing is impossible. As we went through the houses from first to last, I routinely gave the first house up to a minute to answer the door before breach. As the day moved along each house received less and less time. This is because we had the element of surprise on the first house, but due to the extensive level of criminal organization, it became more and more likely that we were bouncing grow to grow. Criminals could be alerting each house of pending police action and as such evidence destruction could be more likely with each subsequent location. So the first house might get 60 seconds and by the time we were hitting the last house it might be down to 5.
The law is clear, officers must be reasonable. But what that reasonable time is exactly remains to be seen. There is no case that asserts a specific time for K&A, there have been a lot of cases where courts ruled that the time given was unreasonable, AND that the time given WAS reasonable. But let’s examine what that actually means. A court hears a case where officers waited 6.7 seconds before forcibly entering. Defendant moves to suppress evidence and the court agrees 6.7 was insufficient. It is possible that if they had waited 6.8 seconds the court would have ruled that they were reasonable! In Banks, the court said 15-20 seconds WAS sufficient. What we will never know is whether the court would have also said 1 second was reasonable. Because they ONLY ruled on what happened!
What the courts have consistently stated is that each unique circumstance will determine what is reasonable. There is no magic amount of time that guarantees reasonableness. So each case should be given its due, and the Team Leader should be indicating to the K&A guy and the breachers what his assessment of that reasonable amount of time is, before forcing entry. The team leader who has planned the operation has the most information, so who better than him to determine the reasonable time? Saying 10 seconds may be completely insufficient in some cases and way too long in others. The general statement of “After 3 K&A” is also insufficient because I can spit that out really fast, and someone else may take longer. There is no time associated with 3 iterations of the K&A procedure. Last is that by briefing it, the entire team is on the same sheet of music at deposition. I don’t run a stopwatch on operations, but I can guesstimate how long it took and that guesstimate is also based on what I briefed.
Finally, there are some teams/agencies that operate under strict policies about K&A time. I recently heard 15 seconds as a blanket time. We’ve already discussed why that might be insufficient or too much time. The discussion now is what if I don’t follow that guideline? If it is an agency policy, then I may be subject to agency discipline for violating it. If it is a prosecutorial guideline, then the worst that can happen is suppression of evidence. But bear in mind that the decision to dump the evidence and not file charges is a prosecutor’s decision, not the ruling of a court. If you are on that team, my suggestion is an academic discussion of the law and a gentle education for bosses and prosecutors. Because that is not what the law says.