National View: Fix no-knock warrants the right way
After police killed Breonna Taylor in a home invasion search for drugs, no-knock warrants have gone from little-known law enforcement tool to fodder for dinner-table conversation.
Some jurisdictions have moved to ban them altogether. That's a mistake. Taylor's death rightly cries out for dramatic limits, but no-knocks are indeed needed in imminent-danger cases.
First, some history. In sanctifying an Englishman's home as his castle, 1600s England required law officers to knock and announce themselves before forcibly entering and searching a residence. Several centuries later, England's former colonies and the nation they gave rise to are heavily armed, with indoor plumbing enabling suspects to flush away evidence.
Little wonder "knock and announce" warrants, which give suspects time to arm and potentially attack police, became less popular over time. Law enforcement needs led courts to permit no-knock forcible entry, often in the wee hours, giving police an edge over sleeping or groggy inhabitants.
Notably no-knock warrants, especially those in low-level cases, are often drafted by young prosecutors on dreaded 24-hour, full-week, search-warrant duty. During occasional late-night meetings, prosecutors evaluate information presented by officers. If they believe probable cause to search exists, prosecutors then draft an affidavit and warrant request and present them to a judge, often at his or her home in the wee hours.
As a young prosecutor, I didn't tend to worry whether no-knock entry was specifically justified in individual cases. Armed resistance and evidence destruction are possible any time cops need to enter a home, so requesting no-knock entry reflexively made sense.
Around the country, no-knocks became far too common. In the 1980s, courts granted around 1,500 such warrants a year. The most accurate data reflects that by 2010, the figure was 60,000 to 70,000 a year. Between 2010 and 2016, at least 94 civilians and 13 police officers died in no-knock or very-brief-knocking raids.
The searches are often for narcotics. Those killed during searches are disproportionately nonwhite.
In Taylor's case, no-knock entry was granted based on a convoluted tale of her apartment possibly storing narcotics sold at another location. On March 13 at 12:40 a.m., Louisville, Kentucky, police allegedly pounded on Taylor's door (not required by the warrant), announced themselves, and then used a battering ram to forcibly enter the apartment. After being awoken and fearing dangerous intruders, her boyfriend, Kenneth Walker, grabbed his gun and fired a shot. Police returned fire, shooting Taylor six times and killing her. No contraband was found in the subsequent search.
It's undisputed that Walker fired the first shot. Walker, however, challenges claims that police announced themselves while "pounding" on the apartment door before forcibly entering. It's likely the couple heard no announcement. As such, under Kentucky's stand-your-ground law, Walker's firing at the invading intruders was justified.
Attempted murder charges against Walker were dropped. No officer was charged in Taylor's killing. All parties seemingly acted lawfully.
But while limits to the authority surely make sense, calls to abolish no-knocks entirely are overbroad.
In 1997, a surprise pre-dawn raid in Park Slope, Brooklyn, revealed a ready-to-detonate pipe bomb. Two of the apartment's inhabitants were arrested. The confidential informant testified that his roommates, the suspects, intended to bomb a crowded Brooklyn subway and kill hundreds of innocent New Yorkers. Few would contest this no-knock search, which prevented imminent deadly criminal activity and which produced proof of violent felonies necessary for trial.
The warrants are justified in similar cases — which are not frequent, but real.
No-knock entry, however, should be barred absent case-specific assertions establishing a danger to police and real risk of evidence destruction. Even then, where searches won't yield evidence of violent felony crime or prevent imminent public harm, a cost-benefit analysis should bar no-knock entry. Moreover, the "war on drugs" should not justify no-knock warrants and militarized SWAT teams to bootstrap nonviolent narcotics offenses.
If that means prosecutors lose some evidence, that's OK. The Constitution's Fourth and Fifth Amendments recognize evidentiary limits and a balance between law enforcement needs and civil liberties. Law enforcement doesn't always have to win.
Recently, a loud pounding at 5 a.m. awoke a professional colleague and friend. In her nightgown and hairnet, my African American friend groggily opened her door to two white police officers in bulletproof vests looking for a suspect. My friend understands police work; she remained calm and asked for paperwork, which contained her address with a photo of a homeless-looking man she had never seen before. The officers politely left.
Thankfully that ended without tragedy. But interactions between police and home dwellers can go horribly wrong, especially when warrants are executed at hours jarring sleepy residents. When things go most deeply awry, police invade an apartment with no evidence and an unsuspecting 26-year-old no longer has her whole life ahead of her.
Emily R. Daniel was an assistant district attorney in Nassau County, New York, and wrote this originally for the New York Daily News.