©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On March 9, 2012, the Fifth Circuit Court of Appeals decided Clark v. City of San Antonio, et al. [i] which serves as an excellent review of the legal requirements regarding the knock and announce rule when executing a warrant. The facts of Clark, taken directly from the case, are as follows:
On April 27, 2009, a confidential informant told Detective Arcuri that he had purchased methamphetamine from a man named “Randy” at a home in Leon Valley, a small municipality entirely encompassed within the City of San Antonio. The informant further told Arcuri that Randy was allowing others to “cook” methamphetamine at the same house. Arcuri alleges that the informant, whose identity remains confidential, had given him credible information in the past. The following day, Detective Arcuri obtained a warrant to search for methamphetamine at the residence from Magistrate Judge Marion Cavazos.
Before executing the search warrant, Arcuri conducted an investigation of the residence. He determined that: women, not anyone named Randy, paid the taxes and utility bills for the house; the car parked in the driveway was registered to appellant Clark; and there was no history of criminal activity associated with the property or its known residents. Arcuri also surveilled the premises and observed that someone appeared to be at home, but he was not able to determine the identity of anyone inside.
Although his reasons are disputed, Arcuri decided to execute the warrant without knocking and announcing his team’s identity and purpose. The decision to make a no-knock entry was approved by Arcuri’s supervising sergeant, William Hunt. Around 9:40 p.m., Arcuri and his search team, consisting of seven plain-clothes SAPD detectives and one uniformed Leon Valley officer, forcibly entered the house using a battering ram to knock in the front door. Clark was at the back of the home when the officers came in the front door. Two armed officers approached her and ordered her to lie down on the floor where she was handcuffed. Bishop was in her bedroom undressed and looked out when she heard the commotion. Officers entered her bedroom, gave her a shirt and pants, and waited while she dressed. Bishop was then handcuffed. Both Appellants were questioned regarding their operation of a methamphetamine laboratory. They denied any involvement with illegal drugs. When the officers’ initial search failed to uncover any evidence of drugs, a narcotic detection dog was brought in to search the home, but it too found no evidence of drugs. Appellants were cooperative throughout the search. The officers eventually un-cuffed Appellants and departed. The raid lasted a total of approximately an hour and 45 minutes. Appellants were not the subject of any further investigation. [ii]
Clark and Bishop, the two occupants of the location of the search warrant execution filed suit and alleged, among other things, that the officers and city violated their rights under the Fourth Amendment when they failed to knock and announce prior to forcing entry to execute the search warrant. The district court granted summary judgment to all defendants and the plaintiff’s appealed to the Fifth Circuit Court of Appeals.
The Fifth Circuit first looked at the general rule regarding forced entry into private dwellings in order execute a warrant. The court stated:
The Fourth Amendment incorporates the common-law principle that officers must knock and announce their identity and purpose before attempting forcible entry of a dwelling. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995). The general knock-and-announce requirement, however, is not “a rigid rule of announcement that ignores countervailing law enforcement interests.” Id. Countervailing circumstances may include “a reasonable suspicion that knocking and announcing [the police] presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997). [iii]
Thus, if some exigent circumstance is present at the time the officer entered the dwelling, then it may be reasonable to dispense with the general rule regarding knock and announce. As such, the issue before the court was whether an exigent circumstance justified Detective Arcuri’s decision, which was approved by his immediate supervisor, to enter the plaintiff’s residence without knocking and announcing the team’s identity and purpose. [iv]
Detective Arcuri articulated two reasons for making entry under the warrant without knocking and announcing his team’s identity and purpose. First, he stated he had reasonable suspicion that any methamphetamine located at the premises could be quickly destroyed if he announced the team’s presence. Second, he stated that executing a drug warrant placed his team in danger because of the common connection between drug locations and weapons. [v]
The Fifth Circuit then set out to examine Detective Arcuri’s reasons for a no-knock entry and determine if he and the team acted reasonably under the Fourth Amendment.
Destruction of Evidence
The court first examined whether the threat of destruction of evidence justified dispensing with the knock and announce rule in this case. The court, quoting the Supreme Court in Richards, stated:
A no-knock entry is permissible under the Fourth Amendment if police have “a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, . . . would inhibit the effective investigation of the crime by . . . allowing the destruction of evidence.” Richards, 520 U.S. at 394. [vi][emphasis added]
Detective Arcuri argued that the disposable nature of methamphetamine, combined with the prevalence of destruction of evidence in drug case and the informant’s tip that there were small quantities of methamphetamine in the residence, is sufficient to justify his team’s no-knock entry.
The this argument, the court stated:
The Supreme Court has rejected the contention that the execution of all drug-related search warrants inherently pose a substantial risk of evidence destruction. Richards, 520 U.S. at 394; see also United States v. Washington, 340 F.3d 222, 226 (5th Cir. 2003). [vii][emphasis added]
Additionally, the court noted a similar case from the Fifth Circuit that followed the above rule. In the United States v. Cantu [viii], the court that they held a no-knock entry to be unreasonable under the Fourth Amendment when officers could not articulate any facts, other than that there was some movement within the residence, that would indicate evidence was about to be destroyed.
Further, the court noted that, in the United States v. Banks [ix], the United States Supreme Court stated that 15-20 seconds was a reasonable amount of time to wait after knocking and announcing on a search warrant for cocaine, absent some exigent circumstance. In light of this, the court in Clark, stated that the rule is:
[W]hen police are afraid that announcing their presence and purpose will prompt the destruction of evidence, the appropriate constitutional inquiry is how long they must wait to enter after they have announced, not whether they should announce at all. [x]
The Fifth Circuit then held:
[T]he presence of retail quantities of an easily disposable drug is legally insufficient, without more, to constitute the type of exigency needed to justify a no-knock entry. Richards, Banks, and Cantu all involved searches similarly based on information that drugs were being dealt from the house in question. Arcuri has not even alleged, much less demonstrated through specific facts, that a threat of evidence destruction existed before the occupants of the home knew police were on the premises. Under these circumstances, the disposable nature of methamphetamine was not enough to create exigent circumstances justifying a no-knock entry. In light of Richards and Banks, had Arcuri announced his team’s presence and purpose, the threat of evidence destruction may have amounted to exigent circumstances after a very short time—perhaps only a few seconds—but Arcuri’s no-knock entry cannot be justified on evidence-destruction grounds. [xi] [emphasis added]
Having determined that the general, un-particularized, potential for destruction of evidence did not amount to a sufficient exigent circumstance, the court next set out to determine whether the inherent, general danger in the execution of drug search warrants justified the no-knock entry.
Danger to the Officers
First, it is important to note that Dectective Arcuri concedes that his safety concerns were based on his general knowledge that drug dealers are commonly known to be armed and dangerous. In fact, based on the record, the Fifth Circuit determined that no-knock entry was the default entry method for Detective Arcuri and his team on drug search warrants. This was determined from the officer’s appellate brief which stated that despite their investigation, the officers were not able to learn any information that the occupants of the premises did not pose a threat to the officer’s safety. [xii] Thus, Officer Arcuri admits that he had no particularized basis for his safety concerns because he believes that the general dangerousness of drug related suspects is a sufficient justification for a no-knock entry. [xiii] However, to this argument, the Fifth Circuit stated that, in the United States v. Washington [xiv], they previously held:
The [Supreme] Court [has] rejected the contention that all drug investigations inherently have risks of officer safety” substantial enough to excuse police from the knock-and-announce requirement. [xv] [emphasis added]
The court then held:
[N]either Arcuri’s concerns for evidence preservation nor for officer safety amounted to reasonable suspicion based on particular facts, so exigent circumstances did not justify his team’s no-knock entry of Appellants’ home. The entry therefore violated Appellants’ Fourth Amendment rights. [xvi]
Qualified Immunity Analysis
In light of the fact that the Fifth Circuit held that the officer’s violated the plaintiff’s rights under the Fourth Amendmentin failing to knock and announce, the court next set out to determine if the officer were entitled to qualified immunity. The officers will be entitled to qualified immunity from suit if the right which was violated in this case was not clearly established at the time of the violation such that a reasonable officer in the same situation would not have been on notice that his conduct was unlawful.
The court then examined whether the right was clearly established. For a right to be “clearly established”, there must be factually similar case law from the United States Supreme Court, the federal circuit court of appeals for the appropriate circuit (here, the Fifth Circuit) or the highest court in the state where the violation occurred. The court then stated:
At the time of the search, the Supreme Court’s unanimous decision in Richards rejecting a blanket exception to the knock-and-announce requirement for narcotics searches had been on the books for twelve years. As discussed above, Arcuri’s proffered justifications for his team’s no-knock entry—evidence preservation and officer safety—were based primarily on generalities rather than particularized suspicion, and his position is therefore virtually indistinguishable from the type of blanket rule repudiated in Richards. Moreover, multiple decisions of this circuit, and of the Texas state courts8 have reinforced the applicability of the knock-and-announce requirement to searches indistinguishable from the one conducted on Appellants’ home. Arcuri’s no-knock entry of Appellants’ home, based only on generalized concerns about evidence preservation and officer safety, violated clearly established law and was therefore unreasonable. [xvii] [emphasis added]
As such, the officers were not entitled to qualified immunity from suit in this case.
A word on municipal liability
A municipality has potential liability when a policy, custom or practice of a municipality was the moving force (or caused) someone to suffer a constitution violation. At the outset, the plaintiff’s concede that the formal, written policies of the San Antonio Police Department (SAPD) are constitutional. Thus, the plaintiff’s must show an informal policy, custom or practice is, in fact, the “official policy” of the department in order to overcome summary judgment on behalf of the city.
The Fifth Circuit noted that the current police chief of the SAPD, who is the police department’s official policymaker, testified in a deposition in a manner that indicated it would be routine for officers executing a drug search warrant to enter in a no-knock manner unless there were facts to indicate that a no-knock entry was not required. The court noted that his testimony indicated that no-knock entry was the default procedure in drug cases. The chief also testified that the entry team in this case did not violate department policy. Additionally, the former police chief offered testimony that seemed to echo that theme. Lastly, the testimony of the officers on the entry team all indicated that no-knock entry was the default policy in drug cases.
Based upon the above, the court then stated:
Taken together, the deposition testimony of McManus, Ortiz, Arcuri, and Laurenz, and the City’s admission that the search of Appellants’ home was conducted in accordance with SAPD policies, are sufficient to create a genuine issue of material fact on the issue of municipal liability. [xviii]
Thus, the court denied the motion for summary judgment for the city and reversed the decision of the district court.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 11-50010, 2012 U.S. App. LEXIS 4978 (5th Cir. Decided March 9, 2012)
[ii] Id. at 2-4
[iii] Id. at 6-7
[iv] Id.at 6
[v] Id at 7-8
[vi] Id. at 8
[vii] Id. at 9
[viii] 230 F.3d 148 (5th Cir. 2000)
[ix] 540 U.S.31 (2003)
[x] Clark at 12
[xi] Id. at 13
[xii] Id. at 16
[xiv] 340 F.3d 222 (5th Cir. 2003)
[xv] Clark at 21 (quoting Washington, F.3d at 226)
[xvi] Id. at 23
[xvii] Id. at 24-25
[xviii] Id. at 31-32