Knock-and-Announce Violations in Alaska:
The Alaska Court of Appeals handed down an interesting opinion on remedies for knock-and-announce violations last week in Berumen v. Alaska. The knock-and-announce rule requires officers to knock and announce their presence when executing a warrant. The Alaska court held that suppression is the proper remedy for knock-and-announce violations under the Alaska knock-and-announce statute even though the Fourth Amendment does not impose suppression under Hudson v. Michigan.
Here are the facts of the case. Officers came to Berumen's hotel room to serve an arrest warrant on him. They knocked on the door for about 20 seconds, and when no one answered, they used a hotel pass key to open the door. The officers rushed inside, announcing their identity as police officers as they entered. Inside the room they found four men and a stash of marijuana and cocaine out in the open. The officers arrested Berumen, who was one of the men, and they used the marijuana and cocaine against him at trial.
In this appeal, Berumen argued that the cocaine and marijunana should have been suppressed because the officers violated the Alaska state knock and announce statute. The Alaska statute states:
Of particular interest is the Court's discussion of the fourth factor, whether the police have appeared in widespread or repeated violations of the statute.
If you're interested in whether the analogous federal statute should be interpreted the same way, see my long blog post on the topic from 2006 over at my now-defunct solo blog. Oh, and if you read that post and you're interested in knowing how the bet would have gone with Professor Moran, so far I would have lost, as no circuit has adopted my position. On the other hand, one Sixth Circuit decision stated in dicta that "there is room for disagreement" on the issue and stated that the issue was "murky," generously citing my blog post along the way. See United States v. Ferguson, 252 Fed.Appx. 714 (6th Cir. 2007).
Thanks to FourthAmendment.com for the link.
Here are the facts of the case. Officers came to Berumen's hotel room to serve an arrest warrant on him. They knocked on the door for about 20 seconds, and when no one answered, they used a hotel pass key to open the door. The officers rushed inside, announcing their identity as police officers as they entered. Inside the room they found four men and a stash of marijuana and cocaine out in the open. The officers arrested Berumen, who was one of the men, and they used the marijuana and cocaine against him at trial.
In this appeal, Berumen argued that the cocaine and marijunana should have been suppressed because the officers violated the Alaska state knock and announce statute. The Alaska statute states:
A peace officer may break into a building or vessel in which the person to be arrested is or is believed to be, if the officer is refused admittance after the officer has announced the authority and purpose of the entry.First, the Court concluded that the officers had violated the statute:
[A]lthough the officers identified themselves as police officers, they never announced the authority for, and the purpose of, their entry into Berumen’s hotel room. Moreover, the officers never requested or demanded entry into the room. Because of this, no one ever refused them admittance, nor could the officers have reasonably interpreted the lack of response from inside the hotel room as a tacit refusal of admittance.The Court then ruled that the proper remedy for the violation was suppression based on an earlier state decision called Harker v. State, 637 P.2d 716 (Alaska App. 1981). Harker apparently required the court to consider (1) whether the statutory requirement or restriction is “clear and widely known”; (2) whether the statute is primarily “designed to protect the personal rights” of individual citizens, as opposed to being intended more “for the benefit of the people as a whole”; (3) whether admission of evidence obtained in contravention of the statute would require the court to “condone ‘dirty business’”; and (4) whether it appears that the police have engaged in “widespread or repeated violations” of the statute.
Of particular interest is the Court's discussion of the fourth factor, whether the police have appeared in widespread or repeated violations of the statute.
The fact that there are several Alaska appellate decisions that discuss the meaning and application of AS 12.25.100 suggests that this issue comes up more than occasionally in criminal litigation. And yet, despite this, it appears that police officers may not be paying sufficient attention to this statute. During the evidentiary hearing in this case, one of the officers could not remember that one of the reasons for the “knock and announce” statute is to protect citizens’ privacy, and a second officer testified that he had no idea why the officers failed to abide by the requirements of the statute when they entered Berumen’s hotel room. Given this history and this record, we cannot ignore the possibility that there may be widespread or repeated violations of the statute.The analysis of the last factor seems pretty speculative, but Alaska judges would have a much better sense than I do of whether Alaska police follow the Alaska statute.
If you're interested in whether the analogous federal statute should be interpreted the same way, see my long blog post on the topic from 2006 over at my now-defunct solo blog. Oh, and if you read that post and you're interested in knowing how the bet would have gone with Professor Moran, so far I would have lost, as no circuit has adopted my position. On the other hand, one Sixth Circuit decision stated in dicta that "there is room for disagreement" on the issue and stated that the issue was "murky," generously citing my blog post along the way. See United States v. Ferguson, 252 Fed.Appx. 714 (6th Cir. 2007).
Thanks to FourthAmendment.com for the link.
I think your post misses an important point. The officers did not even announce their presence (as officers) until after they were already breaking in. The decision begins;
As you did note in your post they have the authority to break in if they are refused entry after they have announced their authority and purpose. But in this case they did not announce either until they had already broken in.
Secondly, as to your belief that the court of appeals may have been speculating, you miss that an officer specifically said that they didn't announce who they were when knocking because they hoped someone would come to the door without it.
no one ever refused them admittance, nor could the officers have reasonably interpreted the lack of response from inside the hotel room as a tacit refusal of admittance.
smacks of intellectual dishonesty, partiularly in light of the circumstances here. Knock, announce, wait twenty seconds, open the door with a key, announce again and rush in. To have to add "we're here with a warrant" seems surplus, and not intended to protect privacy.
The police are aleady there, intending to show up unexpectedly, and enter the premises whether you like it or not. When they knock on the door they are moments from coming in. They are not leaving and nothing with respect to saving one's privacy is going to change for the fraction of a second it takes to add the word "warrant." In either case, it does not seem like the subjects of the search were likely to let them in under any corcumstances. (Oh, you have a warrant, come in then)
If the police were initially there for a non-warranted reason, like to sell tickets to the Policeman's Ball, a witness interview etc., they would have left, without further investigation, and not broken in at all after there was no answer at the door.
I didn't mean to question these facts -- I just didn't dwell on them because they're not particularly interesting to me. I'm much more interested in the remedy than whether the statute was violated based on these facts.
As for the timing of the announcing of the officer's presence, it's actually a little unclear from the opinion, I think, and I wasn't exactly sure how to explain it in the post. The opinion states, "As they began their entry, they announced that they were Anchorage police officers." Does that mean they announced at the beginning, before the entry? During it? I went with this description: "The officers announced their identity immediately before entering the hotel room." If readers think that's not faithful to what the court said, I would be happy to change it.
You're missing that they did not announce who they were until they had broken the threshold and before they were "fully" in the room. IOW, they had already broken in before the occupants of the room "refused" to let them in. I have no obligation to come to my door. Especially for someone who doesnt' tell me who they are and what they want.
I think the better description for when they announced their presence is buried in the analysis section. At the bottom of page 8 and the top of page 9 they say;
The court goes on to say
I think this makes it clear they did NOT announce their identity when they were knocking.
As to you wishing to focus on the remedy, I dont' think you can do that to the exclusion of the facts in this case. It's true that when they talk about the fourth factor itself, they focus mainly on the amount of other cases out there involving similar violations of knock and announce. But the fact that they are seeing other cases as similar points to a pre-occupation with the facts. Secondly, the officers couldn't come up with any reason for violating the statute, not even the old tried and true "officer safety" rationale.
Finally, look at how they characterize the officers conduct as "dirty business" when analyzing factor 3. You can disagree with them, but it seems the facts are central to their analysis of the suppression remedy.
You raise an interesting question I hadn't thought of: Is the holding in this case that suppression is the correct remedy for nontechnical K&A violations, or is the holding only that suppression is required on a case by case basis, and in this case the court has decided to require suppression? I'm not familiar enough with Alaska law to know, although I had assumed the former given that it is the approach generally adopted in federal law. Do you read the case as suggesting the latter?
The police are more likely, individually and institutionally, to say "man, we got all the evidence and the DA and/or judge screwed it up, not our problem" than they are to sit in a circle and go "guys, someone down the line said we violated the law-- what can we do to make sure the evidence is admissible next time?" Hitting them in their pocketbook by contrast, tends to get their attention.
Some attempt at quantifying alterations in police behavior in response to changing legal rules would be very interesting. Perhaps it would do a lot to help judges design the best remedies for violations of legal duties by police.
I think the case is unclear, but I think it will be clarified as demanding a case by case analysis. I would actually parse it a little bit finer as saying that this particular non-technical violation (failure to announce both presence and purpose) is established as requiring suppression. On other non-technical violations its an open question.
Dan Weber,
Yes, it does if you read the case.
What, exactly, is required to meet this requirement? If it's enough for them to yell, "Police! Search Warrant! Open up!" (thus announcing their authority, purpose, and requesting entry) then it hardly seems to place a substantial burden on law enforcement.
Thank goodness we now know that such widespread or repeated violations are not possible, given the Supreme-Court-certified increased professionalism of the police.
They also have to be refused entrance. Shouting police search warrant and kicking the door probably wouldn't do it. Shouting police search warrant, open the door and waiting 25 seconds before kicking the door probably would.
That may be right, but if so, isn't it pretty speculative then? If the officers in this case had a different understanding, the Court could have reached a different result. Of course, that assumes that the state law Harker case is the right test -- I don't know as a matter of state law.
I suspect that has something to do with why the Supreme Court took a different approach in Hudson v. Michigan.
I'm not a lawyer but it seems like it would be foolish to wait until some large number of officers had done the same thing to remedy the situation.
The exclusionary rule is adopted not to protect criminals, particularly, but to enforce the rules which protect the innocent from police misconduct.
Contrary to the suggestion of another poster, most cops, and certainly most police bureaucracies, care about building prosecutable cases (not all, certainly, I've seen my share of idiot cops when I was a prosecutor, but most). The exclusionary rule has indeed helped lead to more compliance with the requirements of Miranda and the 4th, 5th, and 6th Amendments generally.
Criminal procedure has to serve a number of different values, only one of which is putting guilty people in prison. Other concerns include keeping innocent people safe and minimizing the harm from errors (see, e.g., the tragedy in the Cory Maye case). Cops, unfortunately, tend to overemphasize the value of making the bust to the exclusion of these other competing values. Making the improper busts useless by excluding the evidence collected is a way to keep their incentives balanced in the bigger picture.
Rather than "the perp got off on a technicality" I prefer to look at it as "the cops blew the bust on a technicality." Said technicality being, you know, the LAW.
I think so, b/c the hotel probably doesn't have the authority to allow entry of 3d parties into guests' rooms at its own discretion. But I suspect different states have different common law in this regard.
A hotel room, if not one's castle, is at least one's castle away from one's castle.
Exactly. Why wait until you've got a few dead people?
If so, why didn't they say that? They couldn't come up with any reason for violating the law. In addition, your analysis misses the fact that they were waaaay more than a few milliseconds late. They are supposed to announce their presence and authority, be refused and then they are allowed to break in. The first option shouldn't be break in.
but congradulations on getting your casebook cited by Justice Scalia in his concurrence in Gonzalez today in endorsement of abandonment of the "fundamental rights" approach to requiring explicit waivers.
The exclusionary rule is adopted not to protect criminals, particularly, but to enforce the rules which protect the innocent from police misconduct.
Contrary to the suggestion of another poster, most cops, and certainly most police bureaucracies, care about building prosecutable cases (not all, certainly, I've seen my share of idiot cops when I was a prosecutor, but most). The exclusionary rule has indeed helped lead to more compliance with the requirements of Miranda and the 4th, 5th, and 6th Amendments generally.
Is there any evidence that the exclusionary rule works to improve police practices when it happens to the police occasionally? I'll bet that more often than not, by the time a case rolls around and a judge suppresses the evidence, the police have long forgotten about their illegal actions. In fact, it could be years later.
The exclusionary rule seems to be too little, too far long gone, for it to work as a method of improving police procedures and to ensure police compliance with Constitutional and statutory protections.
If there's any statistical evidence to show that the exclusionary rule actually works, I'd love to see it.
It seems to me that a better remedy would be a fine against the police officers, or the ability to sue them in some way. Maybe have both the exclusionary rule, and also the ability to sue police officers who violate the law. The exclusionary rule doesn't seen to be a darn bit of help for anyone who's actually INNOCENT, but which result in police violations of the law. What's the recourse an innocent person would have if the police engage in a no-knock raid like the one here? There's nothing to stop them. And, as I said earlier, if they actually get a criminal, his trial will be long gone before the police change their methods.
One thing else that troubles me: police no-knock raids are happening with increasing frequency and also danger to innocents. Stories of illegal police methods abound. Yet the exclusionary rule hasn't stopped any of this. It leads me to believe that the exclusionary rule is a complete and utter failure.
Here is a good example of why no other remedy works - neither the prosecutors nor the police gain any benefit for letting the guilty go so that the innocent may be safe from wrong-address raids. What's dead citizen once in a while if all the officers finish their shifts safely and all the prosecutors get evidence to introduce (with a 0.5% chance of exclusion).
>>> NYC Cops Lack Credibility in Gun Arrests: …But a closer look at those prosecutions reveals something that has not been trumpeted: more than 20 cases in which judges found police officers’ testimony to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: “patently incredible,” “riddled with exaggerations,” “unworthy of belief.” …The judges’ rulings emerge from what are called suppression hearings, in which defendants, before trial, can argue that evidence was seized illegally. The Fourth Amendment sets limits on the conditions that permit a search; if they are not met, judges must exclude the evidence, even if that means allowing a guilty person to go free… . Other than suppression, the outrage stopped there. With few exceptions, judges did not ask prosecutors to determine whether the officers had broken the law, and prosecutors did not notify police authorities about the judges’ findings. The Police Department did not monitor the rulings. So no officers were disciplined. <<<
NYT - Police Lies
Were you responding to me? What's the evidence that the exclusionary rule actually works to reform police practices? If cops continue to lie on the stand when they SWEAR TO TELL THE TRUTH EVERY TIME THEY ARE THERE, then what's the evidence that they'll follow the Constitutional Law and uphold our protections the next time they gather evidence? Wouldn't the exclusion be too far removed to remotely reform their practices?
Suppression doesn't help the innocent at all, nor does it help people who plead guilty to lesser offenses and don't even know that the evidence the police has is illegally collected.
And WHY do you suppose no state has enacted that remedy?
It's worse than wishful thinking, it encourages the violators to go on doing it since "conservative" law professors, like X, attack the exclusionary rule (while offering ABSOLUTELY NO practical alternative).
How about a civil penalty of no less than $50,000 per person/per incident, taken from the Department's budget and uninsureable plus attorney's fees?
No police union would allow that to pass. In fact, I suspect no "conservative" law professor would support it. Hurts the budget and lets uncaught criminals escape justice.
I am coming to believe no one cares about the INNOCENT BYSTANDERS of police misconduct. I know that few, if any, "conservative" law professors do. The silence is deadly.
Unfortunately, it is obviously not sufficient... violations are usually not caught.
There does need to be something else. Unfortunately, ANYTHING else is subject to abuse (lawsuits against the officers? Just being able to sue them will result in some people suing them ALL THE FREAKING TIME, just because they can).
This sucks. Somehow, we need to break the relationship between prosecutors and police, so that prosecutors will actually prosecute crimes by the police. Any ideas on how to do that?!?
But if a state wants to have a statute that gives that remedy, why, fine by me.
The court appears to have interpreted "if the officer" as "only if the officer".
The trouble is that the court has turned the "IF" statement around. The law fails to say--it seems--what should happen when the officer fails to follow the recipe for the privilege granted by the statute.
Alternatively, do people feel that there is a default at work here. i.e., the officer is a priori prohibited from entering private property and thus must in each exception be explicitly enabled by statutory formula?
The default is the 4th amendment and the basic notion of privacy (which Alaska has specifically as an enumerated right in the constitution).
To me it's also ingenuous to say that a "knock and announce" rule is meant to preserve anyone's privacy. The warrant is a court order to invade privacy. Privacy is going to be invaded when the warrant is served, whether with or without the "knock and announce." Giving advance notice may provide an opportunity to pull on a pair of shorts, or otherwise avoid some measure of embarrassment, but I think the contribution this makes to privacy overall is minimal in comparison to the search that the warrant commands officers to conduct.
The "knock and announce" rule was actually meant to minimize violent resistance. In an earlier age, at least, there was a belief that those who were informed of the authority of the officers would be less likely to resist the warrant service. In current reality, however, that simply is not the case. The "knock and announce" rule has made warrant service one of the most dangerous acts that officers perform in the line of duty. Far from reducing the conflict, it gives those who would resist an opportunity to arm themselves and acquire a good line of fire. The rule has cost several of my friends their lives. And that, undoubtedly, is why officers have a tendency to "forget" it.
Yeah, it's MUCH safer for the police to break into someone's house, when the "castle doctrine" has proliferated and armed homeowners are more afraid than ever of robbery. I suppose you'd view anyone defending himself and his home from the police in that situation as a cold hearted killer?
And that, undoubtedly, is why officers have a tendency to "forget" it.
Would those be friends of yours who are breaking the law?
First, as an initial matter, the facts of this case did not involve a search warrant but an arrest warrant, so no, there wasn't going to be a search anyway, except for the search incident to arrest. But as the statute covers warrants in general, that's more of a quibble than a disagreement.
Secondly, and more importantly, the statute limits the times and places where an officer can break into a building or vessel. It's true that it also requires them to knock and announce. But if there's no warrant, there's no authority to break into a building or vessel. That's where your privacy protection comes in.
Lastly, I'm also curious as to whether those shot while servings warrants were 1) serving search warrants or arrest warrants 2) actually abiding by the knock and announce rule? I tend to agree with DangerMouse, that in most places it would be far more dangerous to break in than to knock and announce...and if they're really worried, they can use a bullhorn.
Just looked at the statute again. It does NOT grant authority to break in to serve a search warrant, only an arrest warrant. That raises my point 1 in the above post from a quibble to a disagreement.
And WHY do you suppose no state has enacted that remedy?
Because defense attorneys would go nuts if the exclusionary rule was replaced by something that would hold the police accountable. The defense attorney's bread and butter is criminal defendants/clients. The exclusionary rule is one of the things they provide to their clients, and it would be unsatisfactory to say "well, no exclusionary rule, you are still guilty and enjoy the next five years in jail, but on the bright side, Officer X got some demerits and/or fine."
My view is that officer accountability is much better. Major vioaltions against innocent folks would have major consequences. Perhaps minor violations against innocent folks (ie, a DUI investigation based on a false report that took 10 minutes) would slip past - but what is the problem? The privacy violation is pretty slight.
One poster notes:
Lawsuits can sort this out. Minor instances of police misconduct would not be filed, b/c the person probably wouldn't hire an attorney. But for more major cases (where punishment of the offending officer is appropriate) the defendant would hire an attorney b/c the cost/benefit risk is in his or her favor.
Finally, the deterrent effect against a police station would go up. If a police chief knew that officer X was pushing it, then the police chief might have a financial incentive (a cut in his/her budget) to rein that officer in. Here, there is not as much motive (especially where, as noted, the chief can simply blame the DA, the judge, the law, etc.).
That sounds like a dumb idea to me, but how about you flesh it out. What is the deterrence to keep them from violating the rights of the guilty??? If you say none, what's to keep them from protecting their budget by making sure the person gets found guilty of something, ie., by planting evidence. Your proposal (without equivalent fines for violating the rights of the guilty) is just a recipe for further police corruption and abuse of power.
Don't they already do that?
Here a roach, there a roach, everywhere a roach.
It isn't enough to send the defendant to jail but it is enough to sink any civil action by the "victim" of the police misconduct. Drop chagres &waive lawsuit. Neat, huh?
Agreed. But the question is, would the corruption get worse? I think it would.