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:

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.