How long should police wait after knock-and-announce before making forcible entry? US v. Banks

Officers executing a warrant to search for cocaine in respondent Banks’s apartment knocked and announced their authority. The question is whether their 15-to-20-second wait before a forcible entry satisfied the Fourth Amendment and 18 U. S. C. §3109.

A divided panel of the Ninth Circuit reversed and ordered suppression of the evidence found. 282 F. 3d 699 (CA9 2002). In assessing the reasonableness of the execution of the warrant, the panel majority set out a nonexhaustive list of “factors that an officer reasonably should consider” in deciding when to enter premises identified in a warrant, after knocking and announcing their presence but receiving no express acknowledgment:

“(a) size of the residence; (b) location of the residence; (c) location of the officers in relation to the main living or sleeping areas of the residence; (d) time of day; (e) nature of the suspected offense; (f) evidence demonstrating the suspect’s guilt; (g) suspect’s prior convictions and, if any, the type of offense for which he was convicted; and (h) any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary.”

In Wilson v. Arkansas, 514 U. S. 927 (1995), we held that the common law knock-and-announce principle is one focus of the reasonableness enquiry; and we subsequently decided that although the standard generally requires the police to announce their intent to search before entering closed premises, the obligation gives way when officers “have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or … would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence,” Richards v. Wisconsin, 520 U. S. 385, 394 (1997). When a warrant applicant gives reasonable grounds to expect futility or to suspect that one or another such exigency already exists or will arise instantly upon knocking, a magistrate judge is acting within the Constitution to authorize a “no-knock” entry. And even when executing a warrant silent about that, if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in.

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”, and there is no indication that the police knew that Banks was in the shower and thus unaware of an impending search that he would otherwise have tried to frustrate.

Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied §3109 as well as the Fourth Amendment, even without refusal of admittance.

Full Opinion Here: United States v. Banks, 540 U.S. _ (2004),

Anton Vialtsin, Esq.
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