Plain View

The United States Supreme Court has revisited the knock and announce rule again. Here, the Court of Appeals for the Ninth Circuit had held that in situations where property is destroyed in the attempt to execute a warrant, that more than a "mild" exigency is required to avoid the knock and announce rule. This ruling occurred under the circumstances of the execution of a no-knock warrant, which resulted in the breaking of a window followed by the exchange of shots.

The Court delivered a unanimous opinion written by the Chief Justice. The Court rejected the view of the 9^th Circuit, saying that under Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the element of the destruction of property was not significant. "Whether such a ‘reasonable suspicion’ exists depends in no way on whether police must destroy property in order to enter." Thus, there is no higher standard for a no-knock entry under circumstances of the destruction of property. The Richards standard continues to apply, that is that no knock entries are justified when officers have a "’reasonable suspicion’ that knocking and announcing their presence before entering would ‘be dangerous or futile, or…inhibit the effective investigation of the crime.’"

The Court was cautious to say, however, that their previous jurisprudence mandating reasonableness in the execution of warrants was not effected by their holding. "Excessive or unnecessary destruction of property in the course of a search may violate the fourth amendment, even though the entry itself is lawful and the fruits of the search are not subject to suppression."
 

In 1995, Debra Talbott filed a missing person report on her daughter; two months later, the Hart County Rescue Squad discovered her daughter’s body in Green River. Talbott’s husband Gerald was questioned in the Meade County jail, and he told KSP Detective Harlow that he had last seen their daughter the night before she was reported missing. However, two weeks later, Gerald told Det. Harlow, in front of his lawyer, that his wife had killed their daughter, and that his only involvement was to help dispose of the body. Det. Harlow then obtained a warrant for Debra Talbott’s arrest. The affidavit for the warrant read: "The affiant, Stan Harlow, Kentucky State Police, says that on January 17, 1995, in Hart County, Kentucky the above-named defendant unlawfully with the intent to cause the death of another person, she caused the death of such person by killing Christiana Marie Poper on Tuesday, January 17, 1995."

Det. Harlow then went to Debra’s house with the warrant and told her she was under arrest. She gave a written consent to search, and the search revealed evidence corroborative of Gerald’s statement. After being placed in jail, Debra then told Det. Harlow that Gerald had killed Christina because he feared Christina would file criminal charges of child sexual abuse against him. Later, she contacted Det. Harlow again and told him she wanted to tell the whole story. The later statement revealed that she and her husband had together killed their daughter and disposed of the body. Gerald later killed himself prior to trial.

Debra Talbott moved to suppress her two statements and the evidence found from her home based upon the alleged illegality of the arrest. Talbott asserted that the affidavit upon which the search warrant was based was an "ultimate fact" affidavit, and did not contain facts upon which the probable cause determination could be based. The Supreme Court agreed, in an opinion written by Justice Cooper. The Court held that because the affidavit was insufficient "to support a finding of probable cause, the warrant was invalid" and thus "provided no basis for Appellant’s arrest."

This holding provided no relief, however, because the Court also found that Det. Harlow had probable cause himself to make a warrantless arrest irrespective of Debra Talbott’s confession or the evidence found at the search of Debra’s house. "[I]nformation constituting probable cause to effect a warrantless arrest can be premised upon information furnished to the arresting officer by another." That probable cause was Gerald Talbott’s confession implicating Debra.

The illegality of the arrest warrant would have been a significant issue had the officer needed to enter Debra’s house to arrest Debra. However, she was standing in her doorway at the time of the arrest, and thus could be arrested without a warrant. Thus, because Det. Harlow had probable cause to arrest Debra based upon Gerald’s confession, and because Debra was standing in the doorway at the time of the arrest, the illegal arrest warrant did not require suppression of the evidence found during the search of Debra’s house.

The Court also looked at the issue of the validity of the search. Debra asserted that her consent was involuntary because it was given after she had been arrested. The Court gave deference to the findings of the trial court, which had found under the totality of the circumstances that the consent to search was voluntary.
 

This is an important "knock and announce" case from the Kentucky Supreme Court. It began when the police obtained a warrant for Adcock’s house, car, and person to search for controlled substances. The officers feared that Adcock would dispose of the dilaudid at the time of the execution of the warrant, and thus devised a ruse posing as pizza delivery workers in order to have the door opened. The ruse worked, allowing the police to enter the house without incident.

There was disagreement between the police and Adcock regarding what happened at the time the police entered. The police asserted that they had identified themselves prior to the entry. Adcock asserted that when she refused entry, the police grabbed her and threw her onto the sofa. The trial court found that Adcock had refused entry after opening the door, that the police identified themselves and then entered. The trial court denied Adcock’s motion to suppress, holding that the police had waited long enough after identifying themselves to "fall within the parameters of the ‘knock and announce rule.’" Adcock entered a conditional plea, and appealed the trial court’s ruling.

The Court of Appeals affirmed the trial court. The Court held that "when police officers execute a search warrant on a personal residence by conducting a successful ruse that results in the occupant voluntarily opening the door which is followed by the officers announcing their identity and purpose prior to entering the home," there is no violation of the Fourth Amendment. The Kentucky Supreme Court granted Adcock’s motion for discretionary review.

Justice Graves wrote the majority opinion affirming the Court of Appeals. The Court noted that the knock and announce requirements of Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) had a threefold purpose: "(1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and (3) to protect people from unnecessary intrusion into their private activities." The Court further noted that Wilson established that there were to be exceptions to the knock and announce rule, which were to be explored by the lower courts. The Court also recognized that one of the primary exceptions was that of the existence of exigent circumstances. Richards v. Wisconsin, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).

The Court observed that a ruse is "constitutionally distinguishable from a no-knock entry." This is because an entry which occurs as a result of a ruse is "not a ‘breaking’ requiring officers to first announce their authority and purpose." Once the officers in this case successfully entered into appellant’s home, the need for the ruse evaporated. Accordingly, the police may use a ruse as "long as it is accomplished without the use of force, promotes the underlying purposes of the knock and announce rule and is constitutional and reasonable under the Fourth Amendment."

Justice Stumbo wrote a dissent joined by Justice Stephens. It was short and to the point. "This opinion will send the message that officers seeking to execute a search warrant no longer must evaluate the circumstances surrounding execution for exigent circumstances." The dissenters point out that this case is neither a knock-and-announce case, nor an exigent circumstance case. "This case falls within none of the exceptions set forth in those opinions and simply serves to demonstrate that the Court’s reverence for the sanctity of the individual’s home is no longer of paramount importance in the Commonwealth. I cannot agree with the majority and dread the day when fruits of this opinion arrive for this Court’s review."
 

This case arose following several searches of a Dayton doctor’s office pursuant to warrants issued during an investigation of Medicare fraud and drug trafficking. The doctor, his wife, and another filed suit under U.S.C. 1981, 1983, 1986, and 1988, claiming Fourth, Fifth, and Fourteenth Amendment violations. The district court denied summary judgment motions of the Detectives and the City of Dayton, and they appealed.

The Sixth Circuit reversed the district court in an opinion written by Judge Wiseman. The district court had found that the affidavit did not demonstrate adequate links between the crimes, the evidence sought, and the doctor. The Court stated that the "specificity required by the Fourth Amendment is not as to the person against whom the evidence is to be used but rather as to the place to be searched and the thing to be seized...courts must bear in mind that search warrants are directed, not at persons, but at property where there is probable cause to believe that instrumentalities or evidence of crime will be found…The affidavit in support of the warrant need not present information that would justify the arrest of the individual in possession of or in control of the property." Because the warrant was based upon probable cause, the district court had erred in denying the summary judgment motion.

The Court also examined another search and seizure issue in the case. The district court had viewed as significant the fact that the affidavit did not state that the officer had unsuccessfully attempted to get the doctor to write a prescription for him. This was viewed as a violation of Franks v. Delaware, 438 U.S. 154 (1978). The district court also used Brady v. Maryland, 373 U.S. 83 (1963), in reaching its decision. The Sixth Circuit rejected the district court’s attempt to link the two, saying "a duty to disclose potentially exculpatory information appropriate in the setting of a trial to protect the due process rights of the accused is less compelling in the context of an application for a warrant…To interweave the Brady due process rationale into warrant application proceedings and to require that all potentially exculpatory evidence be included in an affidavit, places an extraordinary burden on law enforcement officers, compelling them to follow up and include in a warrant affidavit every hunch and detail of an investigation in the futile attempt to prove the negative proposition that no potentially exculpatory evidence had been excluded." Id., at 816.

The Court did leave a window open in its interpretation of Franks’ application to omitted facts from warrant applications. "[W]e reiterate that except in the very rare case where the defendant makes a strong preliminary showing that the affiant with an intention to mislead excluded critical information from the affidavit, and the omission is critical to the finding of probable cause, Franks is inapplicable to the omission of disputed facts." Id.

Short View
 

1.  Knowles v. Iowa, 118 S.Ct. 1298, 140 L.Ed.2d 465 (1998). The Supreme Court has granted cert. from the Iowa Supreme Court looking at the question of whether a state can pass a statute which allows for a full search of vehicles after issuing traffic or equipment citations.

2.  People v. Baltazar, 691 N.E.2d 1186 (Ill. App. 3d Dist. 3/11/98). Allowing an officer to look into the back of a rental truck in order to confirm that the driver was moving did not amount to a general consent, according to the Illinois Court of Appeals. The officer, who told the defendant he wanted to "take a look," failed to communicate to the defendant that he intended to conduct a general search, and thus the "consent" was not adequate to cover the entire search.

3.  United States v. Kyllo, 140 F.3d 1249 (9^th Cir. 1998). The Ninth Circuit has ruled that the use of a thermal imaging device without a warrant is a violation of the Fourth Amendment. "We therefore conclude that the use of a thermal imager to observe heat emitted from various objects within the home infringes upon an expectation of privacy that society clearly deems reasonable." "The Court noted that the imager "strips the sanctuary of the home of one vital dimension of its security: ‘the right to be let alone’ from the arbitrary and discretionary monitoring of our actions by government officials."

4.  State v. Hardy, 577 N.W.2d 212 (Minn. 4/9/98). The act of asking a suspect to open his mouth is a search within the meaning of the Fourth Amendment requiring probable cause. Here, the police with at most an articulable suspicion began to question the defendant in a high crime area. The accused refused to open his mouth, gesturing at first, and then fleeing. When he was caught he was struck with a flashlight and ultimately spit out crack cocaine that had been in his mouth. Under these facts, the Court held that this constituted an illegal search.
 

Ernie Lewis, Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Tel: (502) 564-8006, #108
Fax: (502) 564-7890
E-mail: elewis@mail.pa.state.ky.us

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