Police departments continue to violate an important Supreme Court ruling — and judges keep letting them
“Just after midnight on March 13, police in Louisville on a drug raid forced their way into the home of Breonna Taylor, a 26-year-old black woman who worked as an emergency room technician. Taylor’s boyfriend, Kenneth Walker, a licensed gun owner, woke up and grabbed his gun. According to the police, Walker then fired at them, and the police returned with a storm of at least 20 bullets, striking Taylor at least eight times, killing her. (One police officer was shot in the leg and is expected to make a full recovery.)
Walker was arrested and charged with attempted murder of a police officer. Those charges have since been dismissed. He says the police beat on the door for 30 to 45 seconds without identifying themselves. He thought he and Taylor were being attacked by criminals. According to Taylor’s attorneys, these were plainclothes officers, not a trained SWAT team.
The Louisville police didn’t find any drugs. We now know that Taylor wasn’t even the person police were investigating. Their main suspect, Jamarcus Glover, and his accomplices were already in custody by the time the police raided Taylor’s home.
In the affidavit for the no-knock warrant for Taylor’s home, a detective claimed to have consulted with a postal inspector, who confirmed that Glover had been “receiving packages” at Taylor’s address. But the Louisville postal inspector has since said that he was never consulted by the officers and that there was nothing suspicious about the packages. A source with knowledge of the case has since told me that the packages contained clothes and shoes.
Much of this has been previously reported. Here is what has yet to be reported: The no-knock warrant for Breonna Taylor's home was illegal.
In the 1995 case Wilson v. Arkansas, the court recognized for the first time that the “Castle Doctrine” and the “knock and announce” rule are embedded in the Fourth Amendment. The Castle Doctrine, which dates back centuries to English common law, states that the home should be a place of peace and sanctuary. Accordingly, except for the most extreme circumstances, the police must knock, announce themselves and give time for the occupants of a home to answer the door peacefully and avoid the potential violence and destruction of a forced entry.
The Wilson ruling did allow for some exceptions, though: Most notably, if the police can show that knocking and announcing would allow a particular suspect to dispose of evidence, flee or assault the officers serving the warrant, the police can enter without knocking. After Wilson, many police departments exploited that “exigent circumstance” exception by 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. So in 1997, the Supreme Court unanimously ruled in Richards v. Wisconsin that this sort of blanket exception to the rule is unconstitutional. Here’s the relevant excerpt from the court’s opinion, written by Justice John Paul Stevens:
If a per se exception were allowed for each category of criminal investigation that included a considerable — albeit hypothetical — risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.
Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.
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.
In other words, the police must show why each individual suspect may be a threat to dispose of evidence, flee or attack the police. They can’t simply state that all drug suspects present such a threat. As Stevens points out, the burden for the police here isn’t high. They just have to provide something.
The warrant for Taylor’s home doesn’t clear even that relatively low hurdle. In the portion asking permission for a “no-knock” entry, detective Joshua Jaynes writes, “Affiant is requesting a No-Knock entry to the premises due to the nature of how these drug traffickers operate. These drug traffickers have a history of attempting to destroy evidence, have cameras on the location that compromise Detectives once an approach to the dwelling is made, and a have [sic] history of fleeing from law enforcement.” (The Louisville Police Department did not return a request for comment.)
The police actually obtained five warrants in connection with their investigation into Glover and his alleged associates. Jaynes requested no-knock entry for all five warrants, and in all five he used the same language as above, almost word for word. This, by definition, is not “particular to the circumstances.” Yet Louisville Circuit Judge Mary Shaw signed all five warrants.
Louisville police could try to argue that by using the word “these,” Jaynes is stating that this particular group of suspects presents a risk for all of the threats he lists. But he provides little specific information as to why the targets represent a threat. The closest he comes is listing the prior criminal records of Glover and the other suspects. There’s no evidence included of previously resisting police or committing violence against another person. Nor is there any specific information about surveillance cameras at any of the residences raided.
Breonna Taylor had no criminal record except for a shoplifting charge in 2012 that was later dismissed. She had no history of violence or resisting police. There were no surveillance cameras at her house. Her only connection to the investigation is that Glover once received a package at her house, and Glover likely used her address because the two had dated several years before and remained in touch. But Jaynes provides no specific reason for the police to think Taylor was a threat to dispose of evidence, assault the officers serving the warrant or flee.
Louisville police could also argue that the no-knock provision in the Taylor warrant isn’t relevant because the police claim to have repeatedly knocked and announced themselves before forcing their way inside. Yet, according to Taylor’s attorneys, 16 people in the densely populated neighborhood around Taylor say they heard the gunshots but never heard the police announce themselves. Taylor lived in an apartment building, so if the cops had announced loud enough to wake Taylor and Walker, one would think at least one of her neighbors would have heard it.
Furthermore, Walker actually called 911 after the raid, telling the dispatcher, “I don’t know what happened … somebody kicked in the door and shot my girlfriend.” It’s unlikely that a man with no criminal record would knowingly shoot at police officers, then call 911 and pretend ignorance. It seems safe to say that if the police did announce themselves, Walker didn’t hear it. And that makes the raid legally indistinguishable from a no-knock.
Often in these raids, the police attempt to satisfy the knock-and-announce requirement by lightly announcing themselves and knocking either moments before or simultaneously as the battering ram hits the door. Police officials have admitted as much. In fact, police officials in Louisville have admitted as much.
In a 2015 study, criminologist Brian Schaefer accompanied police on 73 raids in a city he called “Bourbonville.” Sam Aguiar, an attorney for Taylor’s family, has since confirmed that the city in the study is Louisville. “Of the 73 search warrant entries observed, every entry involved using a ram to break the door down,” Schaefer writes. “Further, the detectives announce their presence and purpose in conjunction with the first hit on the door. [Emphasis added.] A detective explained, ‘As long as we announce our presence, we are good. We don’t want to give them anytime to destroy evidence or grab a weapon, so we go fast and get through the door quick.’” Schaefer adds that in the raids he observed, the difference between how police served a no-knock warrant and a knock-and-announce warrant was “minimal in practice.”
Ironically (or perhaps not), the exception to the pattern was when the police were raiding someone they actually knew to be dangerous. Schaefer quotes a detective telling his raid team in one such case, “We need to actually announce our presence this time.”
Louisville’s police department isn’t the only one violating the Richards ruling. In 2018, I reviewed more than 105 no-knock warrants served by the police department in Little Rock. In 97 of those warrants, the police provided no specific evidence about why the suspect met one of the exigent circumstances needed to dispense with the knock-and-announce requirement. Yet judges signed those warrants anyway.
In an even more egregious example, in 2015, a South Carolina drug team raidedthe home of Julian Betton, a 31-year-old black man, over a couple of low-level marijuana sales. After battering down Betton’s door, the officers shot him nine times. Every officer on the task force claimed that members of the raid team knocked and announced multiple times before battering down the door. But footage from Betton’s security camera showed they were lying. In depositions for Betton’s lawsuit, one task force member testified, wrongly, “It’s not the law to knock and announce. You know, it’s just not.” Another said that even when the drug unit wasn’t given a no-knock warrant, they “almost always forcibly entered without knocking and announcing, or simultaneously with announcing.”
So what’s happening? Why are police departments blatantly violating a Supreme Court ruling?
The answer lies in a Supreme Court ruling subsequent to Richards — Hudson v. Michigan in 2006. In Hudson, the court ruled 5 to 4 that even if the police violate the knock-and-announce rule, the exclusionary rule is not applicable, and the police can still use any incriminating evidence they find inside.
The exclusionary rule is meant to be a deterrent to prevent police from violating the Fourth Amendment. But in his majority opinion, Justice Antonin Scalia argued that the rule was too extreme a remedy in these cases. Instead, Scalia argued that there are other ways to keep cops accountable. He referred to “wide-ranging reforms” in U.S. policing, citing a criminologist who later wrote that Scalia had completely misinterpreted his work.
Scalia also pointed out that police officers who violate the rule can be sued. But police are protected from such lawsuits by the doctrine of qualified immunity, which it makes it nearly impossible to collect damages, especially in cases where there’s little established law. In my years covering this issue, I’ve never come across anyone who has ever won a lawsuit against police officers solely for violating the knock-and-announce rule.
As for the “new professionalism,” as of today, not a single police officer in Little Rock has been held accountable for illegal no-knock warrants. One of the judges who signed off on a large portion of those warrants is currently running for higher judicial office. The detective who requested many of those warrants, who was caught lying in one, and for whom there’s evidence that he lied in others, is still in charge of the city’s drug investigations.
There has also been no discipline of any kind for the officers who crippled Julian Betton. When the commander of the drug unit was asked in a deposition why none of the officers had been disciplined, he replied, “They didn’t do anything wrong.”
Hudson was an enormously consequential ruling. The knock-and-announce rule isn’t a mere formality. At its heart is the notion that if the police are going to violate the safety and sanctity of the home, they should be forced to provide ample justification for doing so. That means a thorough investigation, plenty of surveillance and double-checking to verify their information to ensure that the suspect is a real threat and that they have the correct address.
After the court’s ruling in Hudson, those of us who worried about these tactics warned that without any real deterrent, police, judges and prosecutors would eventually ignore the knock-and-announce rule entirely. Police would get sloppier with their warrants, they’d do less surveillance, investigation and verification, and they’d be less vigilant about the rights of the people in the homes they storm. All of that would mean that more people — both cops and civilians — would die.
That’s exactly what has happened. Breonna Taylor’s death wasn’t some unimaginable accident. Nor were the deaths of people who have since died in similar raids. Her death was the entirely foreseeable consequence of a police department feeling free to callously and carelessly ignore the Fourth Amendment and the Supreme Court’s decision to prioritize the integrity of drug prosecutions over the Fourth Amendment right of Americans to feel safe and secure in their homes.
Unless this is corrected, the next Breonna Taylor is coming.“