E-Newsletter Online Legal Questions Answered:

Question Title: "no-Knock clause in search warrant's"

E-Newsletter Edition: August 8, 2007

Always note that state law may be more restrictive on police power than the U.S. Constitution.

QUESTION:
Does a “no-knock” clause need to be incorporated in a search and arrest warrant or is it justified by the totality of the circumstances at the time of entry?

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ANSWER:
State law usually dictates “no-knock” clauses in search warrants. Thus, if officers plan to make a “no-knock” entry, then the clause should included in the search warrant. However, there are situations, where, even if officer does not have a “no knock” clause, on the search warrant, they may still be permitted to dispense with the general “knock and announce” requirement, at least in accordance with federal Constitutional law.

According to the United States Supreme Court in Hudson v. Michigan, there are situations in which it is not necessary to “knock and announce.” ⁱ  For example, it is not necessary when circumstances present a threat of physical violence, if there is reason to believe the giving of notice would lead to the destruction of evidence or if knocking would be futile. ⁱⁱ  The standard of proof for the existence of the above conditions is “reasonable suspicion” under the specific circumstances that may be facing the officers. ⁱⁱⁱ

Regarding the above rules set forth in Hudson v. Michigan, it is very important to note that this applies under analysis of the Fourth Amendment to the U.S. Constitution. This should be distinguished from any analysis that may be conducted based upon a state’s constitution or state statute. States can impose greater restrictions upon law enforcement than is required under federal law. Therefore, officers should consult their prosecutor or department legal advisor for analysis under specific state law.

1. Hudson v. Michigan, 126 S. Ct. 2159, 2162 (2006)
2. Id.
3. Id. at 2163

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