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2.6: Chapter 7 - Warrants

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    Warrants

    The Court has stated repeatedly that searches conducted without a warrant are presumptively “unreasonable” and, accordingly, are presumptive violations of the Fourth Amendment. Although one can argue whether the Court truly enforces a “warrant requirement”—see Justice Thomas’s dissent in Groh v. Ramirez below—one cannot deny the importance of valid warrants to a huge range of police conduct. For example, absent exceptional circumstances (such as officers chasing a fleeing felon), police normally must have a valid warrant to search a residence without the occupant’s permission.

    To be valid, a warrant must obey the Fourth Amendment’s command that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This portion of the Amendment is known as the “Warrant Clause.” It requires: (1) that the evidence presented to the issuing judge or magistrate be sufficient to qualify as “probable cause,” (2) that the officers bringing the evidence to the judge or magistrate swear or affirm that the evidence is true to the best of their knowledge, (3) that the warrant specify where officers can search, and (4) that the warrant specify what things or persons officers may look for and may seize if found.

    In addition, the Court has held that only a “neutral and detached magistrate” may issue a warrant. See Coolidge v. New Hampshire, 403 U.S. 443 (1971). That means the judge or magistrate must be independent of law enforcement; a state attorney general cannot issue warrants. In Connally v. Georgia, 429 U.S. 245 (1977), the Court held that a justice of the peace who received payment upon issuing a warrant, but no fee upon denying a warrant application, was not “neutral and detached.”

    We have already studied the Court’s definition of “probable cause.” In the next cases, we examine the particularity requirement—the Fourth Amendment’s requirement that warrants specify in some detail where officers may search and what they may seize.

    Supreme Court of the United States

    Peter C. Andresen v. Maryland

    Decided June 29, 1976 – 427 U.S. 463

    Mr. Justice BLACKMUN delivered the opinion of the Court.

    This case presents the issue whether the introduction into evidence of a person’s business records, seized during a search of his offices, violates the Fifth Amendment’s command that “[n]o person … shall be compelled in any criminal case to be a witness against himself.”1 We also must determine whether the particular searches and seizures here were “unreasonable” and thus violated the Fourth Amendment.

    I

    In early 1972, a Bi-County Fraud Unit, acting under the joint auspices of the State’s Attorneys’ Offices of Montgomery and Prince George’s Counties, Md., began an investigation of real estate settlement activities in the Washington, D.C., area. At the time, petitioner Andresen was an attorney who, as a sole practitioner, specialized in real estate settlements in Montgomery County. During the Fraud Unit’s investigation, his activities came under scrutiny, particularly in connection with a transaction involving Lot 13T in the Potomac Woods subdivision of Montgomery County. The investigation, which included interviews with the purchaser, the mortgage holder, and other lienholders of Lot 13T, as well as an examination of county land records, disclosed that petitioner, acting as settlement attorney, had defrauded Standard-Young Associates, the purchaser of Lot 13T. Petitioner had represented that the property was free of liens and that, accordingly, no title insurance was necessary, when in fact, he knew that there were two outstanding liens on the property. In addition, investigators learned that the lienholders, by threatening to foreclose their liens, had forced a halt to the purchaser’s construction on the property. When Standard-Young had confronted petitioner with this information, he responded by issuing, as an agent of a title insurance company, a title policy guaranteeing clear title to the property. By this action, petitioner also defrauded that insurance company by requiring it to pay the outstanding liens.

    The investigators, concluding that there was probable cause to believe that petitioner had committed the state crime of false pretenses against Standard-Young, applied for warrants to search petitioner’s law office and the separate office of Mount Vernon Development Corporation, of which petitioner was incorporator, sole shareholder, resident agent, and director. The application sought permission to search for specified documents pertaining to the sale and conveyance of Lot 13T. A judge of the Sixth Judicial Circuit of Montgomery County concluded that there was probable cause and issued the warrants.

    Petitioner eventually was charged, partly by information and partly by indictment, with the crime of false pretenses, based on his misrepresentation to Standard-Young concerning Lot 13T, and with fraudulent misappropriation by a fiduciary, based on similar false claims made to three home purchasers. Before trial began, petitioner moved to suppress the seized documents. The trial court held a full suppression hearing. [T]he only item seized from the corporation’s offices that was not returned by the State or suppressed was a single file labeled “Potomac Woods General.”

    With respect to all the items not suppressed or returned, the trial court ruled that admitting them into evidence would not violate the Fourth Amendment[ ]. [T]he search warrants were based on probable cause, and the documents not returned or suppressed were either directly related to Lot 13T, and therefore within the express language of the warrants, or properly seized and otherwise admissible to show a pattern of criminal conduct relevant to the charge concerning Lot 13T.

    At trial, the State proved its case primarily by public land records and by records provided by the complaining purchasers, lienholders, and the title insurance company. It did introduce into evidence, however, a number of the seized items. Three documents from the “Potomac Woods General” file, seized during the search of petitioner’s corporation, were admitted. These were notes in the handwriting of an employee who used them to prepare abstracts in the course of his duties as a title searcher and law clerk. The notes concerned deeds of trust affecting the Potomac Woods subdivision and related to the transaction involving Lot 13T. Five items seized from petitioner’s law office were also admitted. One contained information relating to the transactions with one of the defrauded home buyers. The second was a file partially devoted to the Lot 13T transaction; among the documents were settlement statements, the deed conveying the property to Standard-Young Associates, and the original and a copy of a notice to the buyer about releases of liens. The third item was a file devoted exclusively to Lot 13T. The fourth item consisted of a copy of a deed of trust, dated March 27, 1972, from the seller of certain lots in the Potomac Woods subdivision to a lienholder. The fifth item contained drafts of documents and memoranda written in petitioner’s handwriting.

    After a trial by jury, petitioner was found guilty upon five counts of false pretenses and three counts of fraudulent misappropriation by a fiduciary. He was sentenced to eight concurrent two-year prison terms. [T]he Court of Special Appeals rejected petitioner’s Fourth and Fifth Amendment Claims. Specifically, it held that the warrants were supported by probable cause, that they did not authorize a general search in violation of the Fourth Amendment, and that the items admitted into evidence against petitioner at trial were within the scope of the warrants or were otherwise properly seized. We granted certiorari limited to the Fourth and Fifth Amendment issues.

    III

    We turn [] to petitioner’s contention that rights guaranteed him by the Fourth Amendment were violated because the descriptive terms of the search warrants were so broad as to make them impermissible “general” warrants.

    The specificity of the search warrants. Although petitioner concedes that the warrants for the most part were models of particularity, he contends that they were rendered fatally “general” by the addition, in each warrant, to the exhaustive list of particularly described documents, of the phrase “together with other fruits, instrumentalities and evidence of crime at this [time] unknown.” The quoted language, it is argued, must be read in isolation and without reference to the rest of the long sentence at the end of which it appears. When read “properly,” petitioner contends, it permits the search for and seizure of any evidence of any crime.

    General warrants of course, are prohibited by the Fourth Amendment. “[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings. … [The Fourth Amendment addresses the problem] by requiring a ‘particular description’ of the things to be seized.” This requirement “‘makes general searches … impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’”

    In this case we agree with the determination of the Court of Special Appeals of Maryland that the challenged phrase must be read as authorizing only the search for and seizure of evidence relating to “the crime of false pretenses with respect to Lot 13T.” The challenged phrase is not a separate sentence. Instead, it appears in each warrant at the end of a sentence containing a lengthy list of specified and particular items to be seized, all pertaining to Lot 13T.2 We think it clear from the context that the term “crime” in the warrants refers only to the crime of false pretenses with respect to the sale of Lot 13T. The “other fruits” clause is one of a series that follows the colon after the word “Maryland.” All clauses in the series are limited by what precedes that colon, namely, “items pertaining to … lot 13, block T.” The warrants, accordingly, did not authorize the executing officers to conduct a search for evidence of other crimes but only to search for and seize evidence relevant to the crime of false pretenses and Lot 13T.3

    The judgment of the Court of Special Appeals of Maryland is affirmed.

    Mr. Justice BRENNAN, dissenting.

    I believe that the warrants under which petitioner’s papers were seized were impermissibly general. I therefore dissent.

    [T]he warrants under which those papers were seized were impermissibly general. General warrants are specially prohibited by the Fourth Amendment. The problem to be avoided is “not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Thus the requirement plainly appearing on the face of the Fourth Amendment that a warrant specify with particularity the place to be searched and the things to be seized is imposed to the end that “unauthorized invasions of ‘the sanctity of a man’s home and the privacies of life’” be prevented. “‘As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’”

    The Court recites these requirements, but their application in this case renders their limitation on unlawful governmental conduct an empty promise. After a lengthy and admittedly detailed listing of items to be seized, the warrants in this case further authorized the seizure of “other fruits, instrumentalities and evidence of crime at this [time] unknown.” The Court construes this sweeping authorization to be limited to evidence pertaining to the crime of false pretenses with respect to the sale of Lot 13T. However, neither this Court’s construction of the warrants nor the similar construction by the Court of Special Appeals of Maryland was available to the investigators at the time they executed the warrants. The question is not how those warrants are to be viewed in hindsight, but how they were in fact viewed by those executing them. The overwhelming quantity of seized material that was either suppressed or returned to petitioner is irrefutable testimony to the unlawful generality of the warrants. The Court’s attempt to cure this defect by post hoc judicial construction evades principles settled in this Court’s Fourth Amendment decisions. “The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge ….” It is not the function of a detached and neutral review to give effect to warrants whose terms unassailably authorize the far-reaching search and seizure of a person’s papers especially where that has in fact been the result of executing those warrants.

    Notes, Comments, and Questions

    In Andresen, the long list of items (even with the “other fruits, instrumentalities and evidence” language does not constitute a “general warrant.” What if instead the list of items subject to seizure had read (in its entirety), “Evidence of real estate fraud”? Would that be sufficient? Should it be?

    Or, to move away from the complicated context of searching a lawyer’s office, consider a case in which police lawfully arrest someone for marijuana possession. The suspect tells police that he purchased the marijuana at a certain house and provides the address. If police obtain a warrant to search the house, is it sufficient for the warrant to list the items subject to seizure as “marijuana and other evidence of marijuana possession and sale”?

    Students may wonder why the inclusion of “the persons or things to be seized” in a warrant will matter in practice. The following scenarios may help explain:

    Imagine that police have probable cause to believe that a stolen piano is located in a suspect’s house. If the warrant authorizes police to search the house for “a black Steinway Model B grand piano,” the police may search any location in the house at which the piano might reasonably be found. That means police likely can enter any room. But unless the house contains unusually massive medicine cabinets, police likely cannot open a medicine cabinet. Therefore, drugs found in a medicine cabinet would be the fruits of an unlawful search.

    By contrast, if police seek stolen earrings, and the warrant authorizes police to search the house for “two diamond stud earrings, with platinum settings,” then police can open medicine cabinets, drawers, and all sorts of places in which earrings can be hidden but pianos cannot.

    In addition, imagine that police are searching for both the piano and the earrings. If the warrant lists only the piano, then police should end their search promptly if they find the piano just inside the front door; they have no other items listed in the warrant to find. If instead the warrant lists both the piano and the earrings, then police may continue their search after finding the piano—examining every crevice in which earrings might be found.

    In the next case, the Court considered a warrant that failed entirely to state what items officers were permitted to seize when searching a certain house.

    Supreme Court of the United States

    Jeff Groh v. Joseph R. Ramirez

    Decided Feb. 24, 2004 – 540 U.S. 551

    Justice STEVENS delivered the opinion of the Court.

    Petitioner conducted a search of respondents’ home pursuant to a warrant that failed to describe the “persons or things to be seized.” The question[] presented [is] whether the search violated the Fourth Amendment.

    I

    Respondents, Joseph Ramirez and members of his family, live on a large ranch in Butte-Silver Bow County, Montana. Petitioner, Jeff Groh, has been a Special Agent for the Bureau of Alcohol, Tobacco and Firearms (ATF) since 1989. In February 1997, a concerned citizen informed petitioner that on a number of visits to respondents’ ranch the visitor had seen a large stock of weaponry, including an automatic rifle, grenades, a grenade launcher, and a rocket launcher. Based on that information, petitioner prepared and signed an application for a warrant to search the ranch. The application stated that the search was for “any automatic firearms or parts to automatic weapons, destructive devices to include but not limited to grenades, grenade launchers, rocket launchers, and any and all receipts pertaining to the purchase or manufacture of automatic weapons or explosive devices or launchers.” Petitioner supported the application with a detailed affidavit, which he also prepared and executed, that set forth the basis for his belief that the listed items were concealed on the ranch. Petitioner then presented these documents to a Magistrate, along with a warrant form that petitioner also had completed. The Magistrate signed the warrant form.

    Although the application particularly described the place to be searched and the contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any of the items that petitioner intended to seize. In the portion of the form that called for a description of the “person or property” to be seized, petitioner typed a description of respondents’ two-story blue house rather than the alleged stockpile of firearms. The warrant did not incorporate by reference the itemized list contained in the application. It did, however, recite that the Magistrate was satisfied the affidavit established probable cause to believe that contraband was concealed on the premises, and that sufficient grounds existed for the warrant’s issuance.

    The day after the Magistrate issued the warrant, petitioner led a team of law enforcement officers, including both federal agents and members of the local sheriff’s department, in the search of respondents’ premises. Although respondent Joseph Ramirez was not home, his wife and children were. Petitioner states that he orally described the objects of the search to Mrs. Ramirez in person and to Mr. Ramirez by telephone. According to Mrs. Ramirez, however, petitioner explained only that he was searching for “‘an explosive device in a box.’” At any rate, the officers’ search uncovered no illegal weapons or explosives. When the officers left, petitioner gave Mrs. Ramirez a copy of the search warrant, but not a copy of the application, which had been sealed. The following day, in response to a request from respondents’ attorney, petitioner faxed the attorney a copy of the page of the application that listed the items to be seized. No charges were filed against the Ramirezes.

    Respondents sued petitioner and the other officers, raising eight claims, including violation of the Fourth Amendment. The District Court entered summary judgment for all defendants. The court found no Fourth Amendment violation, because it considered the case comparable to one in which the warrant contained an inaccurate address, and in such a case, the court reasoned, the warrant is sufficiently detailed if the executing officers can locate the correct house.

    The Court of Appeals affirmed the judgment with respect to all defendants and all claims, with the exception of respondents’ Fourth Amendment claim against petitioner. On that claim, the court held that the warrant was invalid because it did not “describe with particularity the place to be searched and the items to be seized,” and that oral statements by petitioner during or after the search could not cure the omission. The court observed that the warrant’s facial defect “increased the likelihood and degree of confrontation between the Ramirezes and the police” and deprived respondents of the means “to challenge officers who might have exceeded the limits imposed by the magistrate.” The court also expressed concern that “permitting officers to expand the scope of the warrant by oral statements would broaden the area of dispute between the parties in subsequent litigation.”

    II

    The warrant was plainly invalid. The Fourth Amendment states unambiguously that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis added.) The warrant in this case complied with the first three of these requirements: It was based on probable cause and supported by a sworn affidavit, and it described particularly the place of the search. On the fourth requirement, however, the warrant failed altogether. Indeed, petitioner concedes that “the warrant … was deficient in particularity because it provided no description of the type of evidence sought.”

    The fact that the application adequately described the “things to be seized” does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. And for good reason: “The presence of a search warrant serves a high function,” and that high function is not necessarily vindicated when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose home is being searched nor available for her inspection. We do not say that the Fourth Amendment prohibits a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. But in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation.

    Petitioner argues that even though the warrant was invalid, the search nevertheless was “reasonable” within the meaning of the Fourth Amendment. He notes that a Magistrate authorized the search on the basis of adequate evidence of probable cause, that petitioner orally described to respondents the items to be seized, and that the search did not exceed the limits intended by the Magistrate and described by petitioner. Thus, petitioner maintains, his search of respondents’ ranch was functionally equivalent to a search authorized by a valid warrant.

    We disagree. This warrant did not simply omit a few items from a list of many to be seized, or misdescribe a few of several items. Nor did it make what fairly could be characterized as a mere technical mistake or typographical error. Rather, in the space set aside for a description of the items to be seized, the warrant stated that the items consisted of a “single dwelling residence … blue in color.” In other words, the warrant did not describe the items to be seized at all. In this respect the warrant was so obviously deficient that we must regard the search as “warrantless” within the meaning of our case law. “We are not dealing with formalities.” Because “‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion’” stands “‘[a]t the very core’ of the Fourth Amendment,” our cases have firmly established the “‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable,” Thus, “absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.”

    We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant.

    Petitioner asks us to hold that a search conducted pursuant to a warrant lacking particularity should be exempt from the presumption of unreasonableness if the goals served by the particularity requirement are otherwise satisfied. He maintains that the search in this case satisfied those goals—which he says are “to prevent general searches, to prevent the seizure of one thing under a warrant describing another, and to prevent warrants from being issued on vague or dubious information” because the scope of the search did not exceed the limits set forth in the application. But unless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit. In this case, for example, it is at least theoretically possible that the Magistrate was satisfied that the search for weapons and explosives was justified by the showing in the affidavit, but not convinced that any evidentiary basis existed for rummaging through respondents’ files and papers for receipts pertaining to the purchase or manufacture of such items. Or, conceivably, the Magistrate might have believed that some of the weapons mentioned in the affidavit could have been lawfully possessed and therefore should not be seized. The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant’s request. Even though petitioner acted with restraint in conducting the search, “the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.”

    We have long held, moreover, that the purpose of the particularity requirement is not limited to the prevention of general searches. A particular warrant also “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.”

    Petitioner argues that even if the goals of the particularity requirement are broader than he acknowledges, those goals nevertheless were served because he orally described to respondents the items for which he was searching. Thus, he submits, respondents had all of the notice that a proper warrant would have accorded. But this case presents no occasion even to reach this argument, since respondents, as noted above, dispute petitioner’s account. According to Mrs. Ramirez, petitioner stated only that he was looking for an “‘explosive device in a box.’” Because this dispute is before us on petitioner’s motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” The posture of the case therefore obliges us to credit Mrs. Ramirez’s account, and we find that petitioner’s description of “‘an explosive device in a box’” was little better than no guidance at all.

    It is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted. Because petitioner did not have in his possession a warrant particularly describing the things he intended to seize, proceeding with the search was clearly “unreasonable” under the Fourth Amendment. The Court of Appeals correctly held that the search was unconstitutional.

    Justice THOMAS, with whom Justice SCALIA joins, dissenting.

    The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The precise relationship between the Amendment’s Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While “it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness,” the text of the Fourth Amendment certainly does not mandate this result. Nor does the Amendment’s history, which is clear as to the Amendment’s principal target (general warrants), but not as clear with respect to when warrants were required, if ever. Indeed, because of the very different nature and scope of federal authority and ability to conduct searches and arrests at the founding, it is possible that neither the history of the Fourth Amendment nor the common law provides much guidance.

    As a result, the Court has vacillated between imposing a categorical warrant requirement and applying a general reasonableness standard. Today the Court holds that the warrant in this case was “so obviously deficient” that the ensuing search must be regarded as a warrantless search and thus presumptively unreasonable. However, the text of the Fourth Amendment, its history, and the sheer number of exceptions to the Court’s categorical warrant requirement seriously undermine the bases upon which the Court today rests its holding. Instead of adding to this confusing jurisprudence, as the Court has done, I would turn to first principles in order to determine the relationship between the Warrant Clause and the Unreasonableness Clause. But even within the Court’s current framework, a search conducted pursuant to a defective warrant is constitutionally different from a “warrantless search.” Consequently, despite the defective warrant, I would still ask whether this search was unreasonable and would conclude that it was not. For these reasons, I respectfully dissent.

    I

    “[A]ny Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with the second Clause, and, if not, whether it was nevertheless ‘reasonable’ within the meaning of the first.” By categorizing the search here to be a “warrantless” one, the Court declines to perform a reasonableness inquiry and ignores the fact that this search is quite different from searches that the Court has considered to be “warrantless” in the past. Our cases involving “warrantless” searches do not generally involve situations in which an officer has obtained a warrant that is later determined to be facially defective, but rather involve situations in which the officers neither sought nor obtained a warrant. By simply treating this case as if no warrant had even been sought or issued, the Court glosses over what should be the key inquiry: whether it is always appropriate to treat a search made pursuant to a warrant that fails to describe particularly the things to be seized as presumptively unreasonable.

    The Court also rejects the argument that the details of the warrant application and affidavit save the warrant, because “‘[t]he presence of a search warrant serves a high function.’” But it is not only the physical existence of the warrant and its typewritten contents that serve this high function. The Warrant Clause’s principal protection lies in the fact that the “‘Fourth Amendment has interposed a magistrate between the citizen and the police … so that an objective mind might weigh the need to invade [the searchee’s] privacy in order to enforce the law.’” The Court has further explained:

    “The point of the Fourth Amendment … is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers …. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

    But the actual contents of the warrant are simply manifestations of this protection. Hence, in contrast to the case of a truly warrantless search, where a warrant (due to a mistake) does not specify on its face the particular items to be seized but the warrant application passed on by the magistrate judge contains such details, a searchee still has the benefit of a determination by a neutral magistrate that there is probable cause to search a particular place and to seize particular items. In such a circumstance, the principal justification for applying a rule of presumptive unreasonableness falls away.

    In the instant case, the items to be seized were clearly specified in the warrant application and set forth in the affidavit, both of which were given to the Judge (Magistrate). The Magistrate reviewed all of the documents and signed the warrant application and made no adjustment or correction to this application. It is clear that respondents here received the protection of the Warrant Clause. Under these circumstances, I would not hold that any ensuing search constitutes a presumptively unreasonable warrantless search. Instead, I would determine whether, despite the invalid warrant, the resulting search was reasonable and hence constitutional.

    II

    Because the search was not unreasonable, I would conclude that it was constitutional. Prior to execution of the warrant, petitioner briefed the search team and provided a copy of the search warrant application, the supporting affidavit, and the warrant for the officers to review. Petitioner orally reviewed the terms of the warrant with the officers, including the specific items for which the officers were authorized to search. Petitioner and his search team then conducted the search entirely within the scope of the warrant application and warrant; that is, within the scope of what the Magistrate had authorized. Finding no illegal weapons or explosives, the search team seized nothing. When petitioner left, he gave respondents a copy of the search warrant. Upon request the next day, petitioner faxed respondents a copy of the more detailed warrant application. Indeed, putting aside the technical defect in the warrant, it is hard to imagine how the actual search could have been carried out any more reasonably.

    The Court argues that this eminently reasonable search is nonetheless unreasonable because “there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit” “unless the particular items described in the affidavit are also set forth in the warrant itself.” The Court argues that it was at least possible that the Magistrate intended to authorize a much more limited search than the one petitioner requested. As a theoretical matter, this may be true. But the more reasonable inference is that the Magistrate intended to authorize everything in the warrant application, as he signed the application and did not make any written adjustments to the application or the warrant itself.

    The Court also attempts to bolster its focus on the faulty warrant by arguing that the purpose of the particularity requirement is not only to prevent general searches, but also to assure the searchee of the lawful authority for the search. But as the Court recognizes, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 requires an officer to serve the warrant on the searchee before the search. Thus, a search should not be considered per se unreasonable for failing to apprise the searchee of the lawful authority prior to the search, especially where, as here, the officer promptly provides the requisite information when the defect in the papers is detected. Additionally, unless the Court adopts the Court of Appeals’ view that the Constitution protects a searchee’s ability to “be on the lookout and to challenge officers,” while the officers are actually carrying out the search, petitioner’s provision of the requisite information the following day is sufficient to satisfy this interest.

    For the foregoing reasons, I respectfully dissent.

    * * *

    In the next two cases, the Court considers a recurring question related to how officers may execute a valid warrant. Specifically, the question is whether officers must “knock and announce” before breaking in someone’s door to conduct a search pursuant to a warrant. Even more specifically, the question is whether the Fourth Amendment generally requires the knocking and announcing and, if so, what exceptions limit the general rule.

    Supreme Court of the United States

    Sharlene Wilson v. Arkansas

    Decided May 22, 1995 – 514 U.S. 927

    Justice THOMAS delivered the opinion of the [unanimous] Court.

    At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law “knock and announce” principle forms a part of the reasonableness inquiry under the Fourth Amendment.

    I

    During November and December 1992, petitioner Sharlene Wilson made a series of narcotics sales to an informant acting at the direction of the Arkansas State Police. In late November, the informant purchased marijuana and methamphetamine at the home that petitioner shared with Bryson Jacobs. On December 30, the informant telephoned petitioner at her home and arranged to meet her at a local store to buy some marijuana. According to testimony presented below, petitioner produced a semiautomatic pistol at this meeting and waved it in the informant’s face, threatening to kill her if she turned out to be working for the police. Petitioner then sold the informant a bag of marijuana.

    The next day, police officers applied for and obtained warrants to search petitioner’s home and to arrest both petitioner and Jacobs. Affidavits filed in support of the warrants set forth the details of the narcotics transactions and stated that Jacobs had previously been convicted of arson and firebombing. The search was conducted later that afternoon. Police officers found the main door to petitioner’s home open. While opening an unlocked screen door and entering the residence, they identified themselves as police officers and stated that they had a warrant. Once inside the home, the officers seized marijuana, methamphetamine, valium, narcotics paraphernalia, a gun, and ammunition. They also found petitioner in the bathroom, flushing marijuana down the toilet. Petitioner and Jacobs were arrested and charged with delivery of marijuana, delivery of methamphetamine, possession of drug paraphernalia, and possession of marijuana.

    Before trial, petitioner filed a motion to suppress the evidence seized during the search. Petitioner asserted that the search was invalid on various grounds, including that the officers had failed to “knock and announce” before entering her home. The trial court summarily denied the suppression motion. After a jury trial, petitioner was convicted of all charges and sentenced to 32 years in prison.

    The Arkansas Supreme Court affirmed petitioner’s conviction on appeal. The court noted that “the officers entered the home while they were identifying themselves,” but it rejected petitioner’s argument that “the Fourth Amendment requires officers to knock and announce prior to entering the residence.” Finding “no authority for [petitioner’s] theory that the knock and announce principle is required by the Fourth Amendment,” the court concluded that neither Arkansas law nor the Fourth Amendment required suppression of the evidence.

    We granted certiorari to resolve the conflict among the lower courts as to whether the common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. We hold that it does, and accordingly reverse and remand.

    II

    The Fourth Amendment to the Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable,” our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.

    Although the common law generally protected a man’s house as “his castle of defense and asylum,” common-law courts long have held that “when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K[ing]’s process, if otherwise he cannot enter.” To this rule, however, common-law courts appended an important qualification:

    “But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors …, for the law without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps he did not know of the process, of which, if he had notice, it is to be presumed that he would obey it….”

    Several prominent founding-era commentators agreed on this basic principle. According to Sir Matthew Hale, the “constant practice” at common law was that “the officer may break open the door, if he be sure the offender is there, if after acquainting them of the business, and demanding the prisoner, he refuses to open the door.” William Hawkins propounded a similar principle: “the law doth never allow” an officer to break open the door of a dwelling “but in cases of necessity,” that is, unless he “first signify to those in the house the cause of his coming, and request them to give him admittance.” Sir William Blackstone stated simply that the sheriff may “justify breaking open doors, if the possession be not quietly delivered.”

    The common-law knock and announce principle was woven quickly into the fabric of early American law. Most of the States that ratified the Fourth Amendment had enacted constitutional provisions or statutes generally incorporating English common law, and a few States had enacted statutes specifically embracing the common-law view that the breaking of the door of a dwelling was permitted once admittance was refused.

    Our own cases have acknowledged that the common law principle of announcement is “embedded in Anglo-American law,” but we have never squarely held that this principle is an element of the reasonableness inquiry under the Fourth Amendment. We now so hold. Given the longstanding common-law endorsement of the practice of announcement, we have little doubt that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure. Contrary to the decision below, we hold that in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment.

    This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests. As even petitioner concedes, the common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances.

    Indeed, at the time of the framing, the common-law admonition that an officer “ought to signify the cause of his coming” had not been extended conclusively to the context of felony arrests. The common-law principle gradually was applied to cases involving felonies, but at the same time the courts continued to recognize that under certain circumstances the presumption in favor of announcement necessarily would give way to contrary considerations.

    Thus, because the common-law rule was justified in part by the belief that announcement generally would avoid “the destruction or breaking of any house … by which great damage and inconvenience might ensue,” courts acknowledged that the presumption in favor of announcement would yield under circumstances presenting a threat of physical violence. Similarly, courts held that an officer may dispense with announcement in cases where a prisoner escapes from him and retreats to his dwelling. Proof of “demand and refusal” was deemed unnecessary in such cases because it would be a “senseless ceremony” to require an officer in pursuit of a recently escaped arrestee to make an announcement prior to breaking the door to retake him. Finally, courts have indicated that unannounced entry may be justified where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.

    We need not attempt a comprehensive catalog of the relevant countervailing factors here. For now, we leave to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry.

    III

    Respondent contends that the judgment below should be affirmed because the unannounced entry in this case was justified for two reasons. First, respondent argues that police officers reasonably believed that a prior announcement would have placed them in peril, given their knowledge that petitioner had threatened a government informant with a semiautomatic weapon and that Mr. Jacobs had previously been convicted of arson and firebombing. Second, respondent suggests that prior announcement would have produced an unreasonable risk that petitioner would destroy easily disposable narcotics evidence.

    These considerations may well provide the necessary justification for the unannounced entry in this case. Because the Arkansas Supreme Court did not address their sufficiency, however, we remand to allow the state courts to make any necessary findings of fact and to make the determination of reasonableness in the first instance. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

    Notes, Comments, and Questions

    In Wilson, the Court stated that obeying the “knock and announce” rule was part of conducting a “reasonable” search under the Fourth Amendment. The Court also stated, however, that certain searches may be conducted without knocking and announcing. Indeed, after the Court remanded Sharlene Wilson’s case to the Arkansas court system, she was not released. It seems that Arkansas courts determined that under the facts presented, it was reasonable for officers to enter Wilson’s home without knocking and announcing.

    Although best known to today’s students for her role in knock-and-announce doctrine, Sharlene Wilson was briefly famous two decades ago—at least among followers of certain conspiracy theories—for other reasons. During her imprisonment, it was reported that Wilson claimed to have seen then-Arkansas Governor Bill Clinton using cocaine and attending “cocaine parties.” It was also suggested that Wilson had been sent to prison in an effort to prevent her from harming Clinton’s political ambitions. Her case was celebrated by certain activists who sought her release, and Governor Mike Huckabee (father of future White House press secretary Sarah Sanders) reduced her sentence in 1999, making Wilson eligible for parole. Then, after marrying Bryson Jacobs—the boyfriend mentioned in the Wilson opinion—she began a ministry tour.

    In the next case, the Court attempted to provide more guidance about when knocking and announcing is not required.

    Supreme Court of the United States

    Steiney Richards v. Wisconsin

    Decided April 28, 1997 – 520 U.S. 385

    Justice STEVENS delivered the opinion of the [unanimous] Court.

    In Wilson v. Arkansas, we held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. At the same time, we recognized that the “flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests,” and left “to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment.”

    In this case, the Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. In so doing, it reaffirmed a pre-Wilson holding and concluded that Wilson did not preclude this per se rule. We disagree with the court’s conclusion that the Fourth Amendment permits a blanket exception to the knock-and-announce requirement for this entire category of criminal activity. But because the evidence presented to support the officers’ actions in this case establishes that the decision not to knock and announce was a reasonable one under the circumstances, we affirm the judgment of the Wisconsin court.

    I

    On December 31, 1991, police officers in Madison, Wisconsin, obtained a warrant to search Steiney Richards’ motel room for drugs and related paraphernalia. The search warrant was the culmination of an investigation that had uncovered substantial evidence that Richards was one of several individuals dealing drugs out of motel rooms in Madison. The police requested a warrant that would have given advance authorization for a “no-knock” entry into the motel room, but the Magistrate explicitly deleted those portions of the warrant.

    The officers arrived at the motel room at 3:40 a.m. Officer Pharo, dressed as a maintenance man, led the team. With him were several plainclothes officers and at least one man in uniform. Officer Pharo knocked on Richards’ door and, responding to the query from inside the room, stated that he was a maintenance man. With the chain still on the door, Richards cracked it open. Although there is some dispute as to what occurred next, Richards acknowledges that when he opened the door he saw the man in uniform standing behind Officer Pharo. He quickly slammed the door closed and, after waiting two or three seconds, the officers began kicking and ramming the door to gain entry to the locked room. At trial, the officers testified that they identified themselves as police while they were kicking the door in. When they finally did break into the room, the officers caught Richards trying to escape through the window. They also found cash and cocaine hidden in plastic bags above the bathroom ceiling tiles.

    Richards sought to have the evidence from his motel room suppressed on the ground that the officers had failed to knock and announce their presence prior to forcing entry into the room. The trial court denied the motion, concluding that the officers could gather from Richards’ strange behavior when they first sought entry that he knew they were police officers and that he might try to destroy evidence or to escape. The judge emphasized that the easily disposable nature of the drugs the police were searching for further justified their decision to identify themselves as they crossed the threshold instead of announcing their presence before seeking entry. Richards appealed the decision to the Wisconsin Supreme Court and that court affirmed.

    The Wisconsin Supreme Court did not delve into the events underlying Richards’ arrest in any detail, but accepted the following facts: “[O]n December 31, 1991, police executed a search warrant for the motel room of the defendant seeking evidence of the felonious crime of Possession with Intent to Deliver a Controlled Substance in violation of Wis. Stat. § 161.41(1m) (1991-92). They did not knock and announce prior to their entry. Drugs were seized.”

    II

    We recognized in Wilson that the knock-and-announce requirement could give way “under circumstances presenting a threat of physical violence,” or “where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.” It is indisputable that felony drug investigations may frequently involve both of these circumstances. The question we must resolve is whether this fact justifies dispensing with case-by-case evaluation of the manner in which a search was executed.

    The Wisconsin court explained its blanket exception as necessitated by the special circumstances of today’s drug culture, and the State asserted at oral argument that the blanket exception was reasonable in “felony drug cases because of the convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs.” But creating exceptions to the knock-and-announce rule based on the “culture” surrounding a general category of criminal behavior presents at least two serious concerns.

    First, the exception contains considerable overgeneralization. For example, while drug investigation frequently does pose special risks to officer safety and the preservation of evidence, not every drug investigation will pose these risks to a substantial degree. For example, a search could be conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence. Or the police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly. In those situations, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a no-knock entry. Wisconsin’s blanket rule impermissibly insulates these cases from judicial review.

    A second difficulty with permitting a criminal-category exception to the knock-and-announce requirement is that the reasons for creating an exception in one category can, relatively easily, be applied to others. Armed bank robbers, for example, are, by definition, likely to have weapons, and the fruits of their crime may be destroyed without too much difficulty. 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. This standard—as opposed to a probable-cause requirement—strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.

    III

    Although we reject the Wisconsin court’s blanket exception to the knock-and-announce requirement, we conclude that the officers’ no-knock entry into Richards’ motel room did not violate the Fourth Amendment. We agree with the trial court that the circumstances in this case show that the officers had a reasonable suspicion that Richards might destroy evidence if given further opportunity to do so.

    The judge who heard testimony at Richards’ suppression hearing concluded that it was reasonable for the officers executing the warrant to believe that Richards knew, after opening the door to his motel room the first time, that the men seeking entry to his room were the police. Once the officers reasonably believed that Richards knew who they were, the court concluded, it was reasonable for them to force entry immediately given the disposable nature of the drugs.

    In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the Magistrate who signed the search warrant for his motel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no-knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the motel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the Magistrate, to justify a no-knock warrant. Of course, the Magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ motel room. These actual circumstances—petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs—justified the officers’ ultimate decision to enter without first announcing their presence and authority.

    Accordingly, although we reject the blanket exception to the knock-and-announce requirement for felony drug investigations, the judgment of the Wisconsin Supreme Court is affirmed.

    Notes, Comments, and Questions

    When police “knock and announce,” they are often not obligated to wait very long before forcing entry. In United States v. Banks, 540 U.S. 31 (2003), the Court found that a “15-to-20-second wait before a forcible entry” was justified by the circumstances, and federal courts have approved even shorter wait times.4 Short wait times are especially likely to be deemed reasonable if officers are searching for drugs and hear no response after knocking and announcing. The necessary time officers must wait before “reasonably” breaking a door varies depending on factors such as what police seek, the anticipated dangerousness of persons likely to be on the premises, and how persons react to the arrival of officers.

    The 2017 news that federal agents conducted a no-knock raid against Paul Manafort, the former presidential campaign manager for Donald Trump, inspired new interest in the phenomenon of no-knock entries and the breaking of doors by police. Although some commentators suggested that such raids are unusual, it would have been more accurate to say that such raids are unusual for suspects like Paul Manafort. In drug cases, no-knock raids are not unusual at all.5

    Students interested in what happens when police execute warrants, particularly without knocking and announcing, may appreciate Radley Balko’s book Rise of the Warrior Cop (2013). Balko observed:

    Today in America SWAT teams violently smash into private homes more than one hundred times per day. The vast majority of these raids are to enforce laws against consensual crimes.6 In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire. Police departments across the country now sport armored personnel carriers designed for use on a battlefield. … They carry military-grade weapons. Most of this equipment comes from the military itself. Many SWAT teams today are trained by current and former personnel from special forces units.7

    Balko notes also that despite the Supreme Court’s guidance concerning no-knock raids—that is, holdings that the Fourth Amendment limits the use of such tactics—“the police officers interviewed for this book unanimously told me that beginning in about the mid-1980s, judges almost never denied their requests for a search warrant” and that “knock-and-announce requests were never a problem.”8

    In March 2020, no-knock warrants gained national attention after police in Louisville, Kentucky shot and killed Breonna Taylor, a 26-year-old emergency room technician. Police entered her apartment soon after midnight on March 13, under authority of a no-knock warrant issued by a judge. Taylor’s boyfriend, Kenneth Walker, said later that when police entered, he and Taylor believed they were victims of a burglary and did not know that the persons entering their home were police officers. Officers said later that they did knock and announce. After police entered, Walker shot at the officers, hitting one in the leg. Police fired back, killing Taylor. She was shot at least eight times. The warrant had been issued as part of an investigation into drug sales. No drugs were found in Taylor’s apartment. Taylor’s death was one of several—including the May 2020 killing of George Floyd by police in Minneapolis—that inspired nationwide protests. Louisville officials announced new policies relating to no-knock warrants in the wake of protests. In addition, some have argued that under existing law set forth in Wilson and Richards, the no-knock warrant in Taylor’s case was not lawfully issued.

    In our next chapter, we will continue examining how the Court regulates the execution of warrants by police. In particular, we will review how officers may treat persons who happen to be present while officers are searching pursuant to a warrant (including whether such persons may be detained and searched), as well as how mistakes by police in the execution of warrants (such as searching the wrong place) affect the “reasonableness” of searches.

    After that, we will spend several chapters studying the circumstances in which the Court has declared that warrants are not required.


    This page titled 2.6: Chapter 7 - Warrants is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Anne M Alexander and Ben Trachtenberg (CALI- The Center for Computer-Assisted Legal Instruction) .