MADISON, Wisc. (March 17, 2021) – A bill introduced in the Wisconsin House would prohibit “no-knock” warrants and take a step toward nullifying several Supreme Court opinions in practice and effect.
A coalition of 24 Democrats introduced House Bill 137 (AB137) on March 5. The legislation would require law enforcement officers executing a search warrant to identify themselves as law enforcement officers and announce the authority and purpose of the entry in all situations. Under current law, police can serve a warrant without knocking if, at the time the warrant is executed, the law enforcement officer has a reasonable suspicion that knocking and announcing will be dangerous or futile or will inhibit the effective investigation of the crime.
AB137 would also require police to serve warrants between 6 a.m. and 10 p.m. unless a judge authorizes the execution of a warrant at another time for good cause.
Nullifying the Supreme Court
Passage of AB137 would take a big step toward effectively nullifying and making irrelevant several Supreme Court opinions that give police across the U.S. legal cover for conducting no-knock raids.
In the 1995 case Wilson v. Arkansas, the Supreme Court established that police must peacefully knock, announce their presence, and allow time for the occupants to open the door before entering a home to serve a warrant. But the Court allowed for “exigent circumstance” exceptions if police fear violence, if the suspect is a flight risk, or if officers fear the suspect will destroy evidence.
As journalist Radley Balko notes, police utilized this exception to the fullest extent, “simply declaring in search warrant affidavits that all drug dealers are a threat to dispose of evidence, flee or assault the officers at the door.”
The SCOTUS eliminated this blanket exception in Richards v. Wisconsin (1997) requiring police to show why a specific individual is a threat to dispose of evidence, commit an act of violence or flee from police. But even with the opinion, the bar for obtaining a no-knock warrant remains low.
“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their 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.” [Emphasis added]
Reasonable suspicion is an extremely low legal bar to meet. Through this exception, police can justify no-knock entry on any warrant application. In effect, the parameters in the SCOTUS ruling make no-knock the norm instead of the exception.
A third Supreme Court ruling effectively eliminated the consequences for violating the “knock and announce” requirement even without a no-knock warrant. In Hudson v. Michigan (2006), the High Court held that evidence seized in violation of knock and announce was not subject to the exclusionary rule. In other words, police could still use the evidence in court even though they technically gathered it illegally.
Significantly, were it not for the dubious “incorporation doctrine” made up by the Supreme Court based on the 14th Amendment that purportedly empowers the federal government to apply the Bill of Rights to the states, these cases would have never gone to federal court and we wouldn’t have these blanket rules.
Without specific restrictions from the state, police officers generally operate within the parameters set by the High Court. By passing restrictions on no-knock warrants, states set standards that go beyond the Supreme Court limits and in effect, nullify the SCOTUS opinion.
AB137 was referred to the House Committee on Criminal Justice and Public Safety where it must pass by a majority vote before moving forward in the legislative process.