Criminal Justice

No-knock warrants: a primer

September 29, 2020

Ryan Haynie

The death of Breonna Taylor and subsequent criminal charges filed against one of the police officers involved in her death has raised questions about the use of so-called “no-knock warrants.” According to reports, three officers executed a no-knock warrant on the home of Breonna Taylor. After officers entered the home, Ms. Taylor’s boyfriend shot at one of the officers, wounding him in the leg. He later told police he thought it was her ex-boyfriend (who was part of the basis for the warrant) trying to break in. After he fired, officers returned fire, fatally wounding Ms. Taylor.

This isn’t the first time a no-knock warrant resulted in disastrous outcomes. To understand how this issue affects Oklahomans it’s helpful to review some of the history of warrants and current law in Oklahoma.

The Fourth Amendment to the U.S. Constitution contains two clauses. The first deals with searches and seizures—requiring them to be reasonable. The second—commonly referred to as the warrant clause—states “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 warrant clause is pretty self-explanatory. In practice, this requires law enforcement to present a sworn affidavit to a judge, and the warrant has to describe, with particularity, the place to be searched. The only part that’s particularly controversial is what constitutes “probable cause,” but that’s beyond the scope of this article.

The reason for the Fourth Amendment stems from abuses by King George III during the colonial period. During that time, there were two warrants the colonists considered to be abuses by the crown. The first was the use of general warrants which allowed government officials to conduct searches and seizures with few, if any, limitations on where they could execute the search and what they could seize. This led to a couple of cases where government officials arrested pamphleteers who were critical of the government and confiscated their materials. The warrants used named neither the defendants nor the places to be searched.

Another abuse was the use of writs of assistance which were used to inspect and search any area where smuggled goods might be kept. These writs were permitted even where there was no particular suspicion (probable cause) that smuggled goods might be present—a mechanism ripe for abuse, indeed. One of the more famous cases, Paxton’s Case (1761), was watched by John Adams who saw the dispute as a catalyst for the American Revolution.

After the signing of the Declaration of Independence, but prior to ratification of the United States Constitution, states were already including protections in their state constitutions similar to what would eventually become the Fourth Amendment. Massachusetts, for example, provided its citizens “a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions.”

The Fourth Amendment wasn’t heavily litigated until the 20th century. The rise of cases addressing the Fourth Amendment was due to: (1) the application of the Fourth Amendment to the states by way of the Fourteenth Amendment; (2) the rise of modernized, professional police forces beginning in the mid-1800s; and (3) evidence suppression as a remedy for Fourth Amendment violations. This third reason is what’s commonly referred to as the exclusionary rule.

The common-law rule for executing warrants was for law enforcement to “knock and announce.” In other words, law enforcement needed to knock, announce their presence and intent, and wait a reasonable amount of time before helping themselves to search the premises. In Wilson v. Arkansas (1995), the United States Supreme Court held this rule was incorporated into the Fourth Amendment, but didn’t make it a rigid rule required in every case.

In certain cases, law enforcement is entitled to execute a search warrant without knocking and announcing their presence—commonly referred to as “no-knock warrants.” Oklahoma law permits police to utilize no-knock warrants under certain circumstances that, quite frankly, could swallow the general rule if gone unchecked.

The benefits to no-knock warrants are obvious. They advantage the police by providing an element of surprise that protects the safety of the officers and prevents the destruction of evidence or the escape of a suspect. But as many, including Senator Rand Paul, have pointed out, they’re not without their drawbacks.

For me, the biggest drawback of no-knock warrants is illustrated by the Breonna Taylor tragedy. I’m a staunch defender of the Second Amendment and various self-defense laws. One such law is commonly referred to as the Castle Doctrine. The Castle Doctrine plays out differently in different states. The version of this law in Oklahoma generally allows a person to use lethal force against intruders if the person has a “reasonable fear of imminent peril of death or great bodily harm.” The law is premised on Oklahomans having “a right to expect absolute safety within their own homes.” Kentucky, where Breonna Taylor lived, has a similar statute.

It seems to me that no-knock warrants are a policy directly contradicting the policy behind self-defense laws like the Castle Doctrine and “stand your ground laws.” Is there anything that is more likely to create a reasonable fear of imminent peril of death or great bodily harm than someone kicking in your door without announcing they’re law enforcement? Just like in Breonna Taylor’s case, this creates a situation where both the resident and the police are now justified to use lethal force. That’s a policy not suited to public safety or officer safety. Combine this conflict with the fact that many no-knock raids are conducted at night, and you have a recipe for disaster.

Some are hesitant to completely get rid of no-knock warrants, and I understand why. But the practice needs to be addressed and, at the very least, additional protections added. One possible protection would be to not allow them at night when people tend to be asleep. Another would be to limit them to true “kingpins.” Still, a complete ban should not be off the table. They’re inherently dangerous and arguably not reasonable under the Fourth Amendment. Law enforcement agencies in Oklahoma should use no-knock warrants only in the most extreme circumstances, if at all, and establish clear policies to prevent situations like the one that led to Breonna Taylor's death. Our policing policies should seek to protect law enforcement and the communities they serve.

(Photo: Family of Breonna Taylor)