The Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution protect citizens from unreasonable searches and seizures. Searches and seizures conducted outside of the judicial process, without a warrant based on probable cause, are per se unreasonable, subject to several specific established exceptions. Included in the Fourth Amendment is “the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry.” In Ohio, that doctrine is codified at Revised Code Section 2935.12, which reads at relevant part:
“(A) When making an arrest or executing an arrest warrant * * * or when executing a search warrant, the peace officer, law enforcement officer, or other authorized individual making the arrest or executing the warrant or summons may break down an outer or inner door or window of a dwelling house or other building, if, after notice of his intention to make the arrest or to execute the warrant or summons, he is refused admittance, but the law enforcement officer or other authorized individual executing a search warrant shall not enter a house or building not described in the warrant.”
Accordingly, a police officer must be either patently or constructively refused entry into a dwelling before forcing entry. Where officers either fail to knock at all before crossing the threshold or knock and announce but fail to give the inhabitants reasonable time to answer the door before entering, the search is unreasonable. The United States Supreme Court, however, has held that where police officers “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,” the officers may proceed with a no-knock entry.
Law enforcement can specifically ask the judge or magistrate for a “no-knock” warrant if the appropriate circumstances are present. Revised Code Section 2933.231 sets forth the statutory preconditions for a nonconsensual entry warrant. The Code establishes that in order to demonstrate the need for a “no knock” search warrant, the affidavit in support of the warrant must contain the following: (1) a statement that the affiant has cause to believe a risk of physical harm would ensue if the standard nonconsensual entry preconditions were followed; (2) a statement of the facts upon which the affiant’s belief is based; (3) a statement verifying the property address of the premises to be searched as the proper search location in connection to the criminal offense; and (4) a request that the statutory precondition for nonconsensual entry be waived. It is important to note, however, that even where a search warrant does not authorize a no-knock entry, but the circumstances support a reasonable suspicion that knocking and announcing their presence would be dangerous or futile when the officers arrive at the door, they may go straight in.
The use of “no-knock” warrants has been all over the news recently–especially in light of the notoriety of the Breonna Taylor case. This practice, however, has been going on for decades. In my twenty-one years of experience as both an assistant prosecutor for Hamilton County and a criminal defense lawyer in the same jurisdiction, I have seen countless cases that involve these kind of searches. Executing search warrants is an extremely dangerous endeavor. But remember this: an overwhelming majority of these cases involve a pre-approved search by a judge or magistrate, and a group of highly trained law enforcement officials that are executing the warrants. That’s why this happens hundreds of times a year, and we hear nothing about it.
Every single one of these cases turns on its own unique facts and circumstances. When “no-knock” entries are utilized, there is usually a very good reason for it. Making a prophylactic rule that outlaws this technique, like Cincinnati City Councilman Chris Seelbach proposes, is asinine. Law enforcement needs this critical tool in order to do their job in a safe and effective manner. One can always find examples of when things go horribly wrong. But, these outliers should not dictate policy.
The Revised Code and the governing case law, set up very strict rules that law enforcement must abide by in order to legally execute search warrants–regular warrants and “no-knock” warrants alike. Should these rules be violated, it could be the basis for moving the court to exclude the evidence that was seized as a result of the warrant. Retaining an experienced criminal defense lawyer to review the intricacies of these situations is of vital importance to defendant any case. If you or a loved one has an issue that stems from the execution of a search warrant, call attorney Scott Rubenstein (513) 260-2099.
The bottom line: In felony drug investigations a “no knock” entry, wherein the police are justified in dispensing with the “knock and announce” requirement, may be done where the police 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 destruction of evidence. Whenever the reasonableness of a no-knock entry is challenged, this “reasonable suspicion” showing by the police is not a high one, and the reasonableness of the officers’ decision must be evaluated as of the time they entered the dwelling