LEGAL QUESTIONS ANSWERED
Question Title: "No-Knock clause in search warrants"
Edition: August 8, 2007
Always note that state law may be
more restrictive on police power than the U.S. Constitution.
Does a “no-knock” clause need to be incorporated in a
search and arrest warrant or is it justified by the totality of the
circumstances at the time of entry?
State law usually dictates “no-knock” clauses in search
warrants. Thus, if officers plan to make a “no-knock” entry,
then the clause should included in the search warrant. However,
there are situations, where, even if officer does not have a “no
knock” clause, on the search warrant, they may still be permitted
to dispense with the general “knock and announce” requirement,
at least in accordance with federal Constitutional law.
to the United States Supreme Court in Hudson v. Michigan, there
are situations in which it is not necessary to “knock
and announce.” i For example, it is not necessary
when circumstances present a threat of physical violence, if there
is reason to believe
the giving of notice would lead to the destruction of evidence or
if knocking would be futile. ii The standard of
proof for the existence of the above conditions is “reasonable
the specific circumstances that may be facing the officers. iii
the above rules set forth in Hudson v. Michigan, it is very important
to note that this applies under analysis of the Fourth
Amendment to the U.S. Constitution. This should be distinguished
from any analysis that may be conducted based upon a state’s
constitution or state statute. States can impose greater restrictions
upon law enforcement than is required under federal law. Therefore,
officers should consult their prosecutor or department legal
advisor for analysis under specific state law.
Hudson v. Michigan, 126 S. Ct. 2159,
Id. at 2163