SC Issues a Moratorium on No-Knock Warrants

On July 10, 2020, the SC Supreme Court issued an Order prohibiting the use of no-knock warrants, at least until SC’s judges receive training on when no-knock warrants are constitutional:

IT IS ORDERED that a moratorium upon the issuance of no-knock warrants by all circuit and summary court judges of this state take effect immediately…

What is a no-knock warrant, and why has the SC Supreme Court ordered judges to stop signing them?

What is a No-Knock Warrant?

A no-knock warrant is a search warrant, signed by a judge, that authorizes police to enter a home without first knocking and announcing themselves:

A no-knock warrant is a search warrant authorizing police officers to enter certain premises without first knocking and announcing their presence or purpose prior to entering the premises. Such warrants are issued where an entry pursuant to the knock-and-announce rule (ie. an announcement prior to entry) would lead to the destruction of the objects for which the police are searching or would compromise the safety of the police or another individual.

In most cases, the Fourth Amendment requires officers to knock and announce themselves:

Under the common law knock-and-announce rule, a police officer executing a search warrant generally must not immediately force his or her way into a residence. Instead, the officer must first knock, identify himself or herself and his or her intent, and wait a reasonable amount of time for the occupants to let him or her into the residence.

Why are officers required to announce themselves, and what is wrong with no-knock warrants?

What is the Problem with No-Knock Warrants?

The problem with officers breaking into someone’s home without knocking or announcing that they are the police should be obvious. If someone kicks my door in and I see a gun in their hand, I’m shooting first to defend myself and my family. Most people would

Breonna Taylor:

Breonna Taylor’s death in Louisville may be the most high-profile example in recent years. When police forced their way into her home, with a no-knock warrant, her boyfriend immediately started shooting and police responded by firing over 20 times, with at least eight bullets striking Breonna and killing her:

Just after midnight on March 13, police in Louisville on a drug raid forced their way into the home of Breonna Taylor, a 26-year-old black woman who worked as an emergency room technician. Taylor’s boyfriend, Kenneth Walker, a licensed gun owner, woke up and grabbed his gun. According to the police, Walker then fired at them, and the police returned with a storm of at least 20 bullets, striking Taylor at least eight times, killing her. (One police officer was shot in the leg and is expected to make a full recovery.)

The police who broke into her home were not in uniform, and, as far as the boyfriend knew, they were criminals intent on robbing, raping, and killing. No drugs were found in her home, and the warrant was most likely invalid. Her boyfriend was arrested and charged with attempted murder, although the charges were later dismissed.

Julian Betton:

In the Myrtle Beach area, the Drug Enforcement Unit (DEU), also dressed in plainclothes, broke down a man’s door without announcing who they were, armed with AR-15’s and using a battering ram, and then shot him multiple times when he came out of his bathroom with a gun. Although the officers claimed he fired at them first, SLED investigators later confirmed that Betton never fired his weapon.

Although they had a search warrant, it was not a no-knock warrant. An officer later testified that “this is the way they did things all the time.” For a search warrant based on $100 worth of marijuana, Betton was put in a coma for six weeks, is now a paraplegic for the rest of his life, and the City of Myrtle Beach and other departments ultimately paid out $11.25 million to settle the resulting civil lawsuit.

What is the problem with no-knock warrants?

If your home is your castle and you are entitled to defend it and your family with deadly force, police cannot and should not be permitted to break down someone’s door and burst into their home without first ensuring that the residents know it is the police and not someone intent on robbing and killing them…

SC Supreme Court Issues a Moratorium on No-Knock Warrants

In the Supreme Court’s order, the Chief Justice notes that SC judges “do not understand the gravity of no-knock warrants” and do not understand the constitutional requirements for issuing them:

Magistrates issue the majority of search warrants in South Carolina. A recent survey of magistrates revealed that most do not understand the gravity of no-knock warrants and do not discern the heightened requirements for issuing a no-knock warrant. It further appears that no-knock search warrants are routinely issued upon request without further inquiry. In recognition of the dangers that the execution of no-knock warrants present to law enforcement and members of the public, and in order to ensure that these warrants are issued based upon the proper constitutional and statutory criteria,

I FIND
it necessary to address the issuance of no-knock search warrants by circuit and summary court judges statewide.

The moratorium is not permanent – the Chief Justice says that it will be in place until SC’s judges have received training on the requirements for no-knock warrants:

…a moratorium upon the issuance of no-knock warrants by all circuit and summary court judges of this state take effect immediately and remain in effect until instruction is provided to circuit and summary court judges statewide as to the criteria to be used to determine whether a requested no-knock warrant should be issued. This instruction will be provided by the South Carolina Judicial Branch.

Apparently, magistrates have been signing no-knock warrants whenever police ask for them. As the Chief Justice notes in his Order, “It further appears that no-knock search warrants are routinely issued upon request without further inquiry.”

What are the Constitutional Requirements for a No-Knock Warrant?

In Wilson v. Arkansas, the US Supreme Court addressed the law enforcement practice of entering homes unannounced when executing search warrants, noting that the concepts of the Castle Doctrine and the knock and announce rule were based in the Fourth Amendment:

  • A person’s home is his castle;
  • Despite this, government agents can break into a person’s home to arrest that person or to serve process, if the person does not open the door; but
  • They must first announce themselves and ask the person to open their door.

The Court also found that there may be an exception to this rule when 1) police officers believe announcing their presence will place them in danger, or 2) the occupants of the home may destroy evidence.

These exceptions are the basis for most no-knock warrants that are issued by judges. But do these exceptions apply to every drug case?

No Blanket Exception for Drug Cases

Two years after Wilson v. Arkansas, the US Supreme Court answered this question in Richards v. Wisconsin:

If a per se exception were allowed for each category of criminal investigation that included a considerable—albeit hypothetical—risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.

Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.

In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

Police must show an individualized reasonable suspicion that a particular suspect is likely to be violent or to destroy evidence – there is no blanket exception to the knock and announce requirement that applies in every drug case.

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