HONOLULU, Hawaii (Jan 4, 2022) – Bill filed in the Hawaii House and Senate would prohibit “no-knock” warrants, and take a step toward nullifying several Supreme Court opinions in practice and effect.
A coalition of Democrats filed Senate Bill 726 (SB726). The legislation would prohibit “no-knock” warrants in the state of Hawaii. It would also require officers serving a warrant to be in uniform – not attempting to conceal or obscure their identities – and to announce themselves and their purpose in a loud voice, giving at least 30 seconds for compliance before attempting entrance – even if the door is found open.
Rep. Scott Saiki (D) filed a companion bill (HB1382) in the House. It has similar provisions prohibiting no-knock warrants and would also require officers to wear body cameras.
Both bills were originally filed during the 2021 legislative session. On March 5, the Senate passed SB726 by a 23-1 vote, sending it to the House for consideration. HB1382 never received a committee hearing. Both bills carry over to the 2022 legislative session.
Nullifying the Supreme Court
Passage of either bill 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.
WHAT’S NEXT
SB726 will now move to the House for further consideration. It awaits a committee assignment. HB1382 has been referred to the House Judiciary and Hawaiian Affairs Committee. Both bills must be voted out of committee with a majority of votes in order to continue on in the legislative process.
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