The Fourth Circuit decided an interesting case yesterday. The case is United States v. Young, and the interesting part isn’t just the defendant’s nickname, “DJ Nelly Nell.”
The relevant facts are as follows. The defendant was indicted on “various drug and weapons charges,” and a warrant for his arrest was issued. Officers staked out his house, and watched as one of the defendant’s associates knocked on the door and was quickly admitted. The associate left shortly thereafter, and the police “repeatedly” knocked “loudly” on the defendant’s door and identified themselves as police. They received no answer, and after 20 seconds, let themselves in using a key supplied by the defendant’s landlord. The defendant was near the door. The officers arrested him, and in the course of the arrest, saw cocaine in the defendant’s home. The government brought additional charges based on that cocaine, and the defendant moved to suppress.
He argued that “that the agents did not properly knock and announce their presence before entering his townhouse to execute the arrest warrant.” The district court disagreed, and after he was convicted, the defendant appealed. The Fourth Circuit affirmed. It acknowledged that the Fourth Amendment imposes a “requirement that police knock, announce their presence, and wait a reasonable time before entering a house to execute a search or arrest warrant.” However, it noted that police may forcibly enter after they have been refused admittance, and that refusal may be implied — for example, by an occupant’s decision not to answer the door.
The defendant argued that the police should have waited “a minimum of two minutes before entering his house,” but the court disagreed. It stated that “[t]he reasonableness of the delay varies with each case and depends on the totality of the circumstances” — the North Carolina cases also endorse this proposition — but cited a number of cases finding a ten to fifteen second delay sufficient. It also noted that the defendant’s home was small, and that the police had seen him quickly answer the door for his associate.
One interesting point mentioned by the court in Young is that the United States Supreme Court held, in Hudson v. Michigan, 547 U.S. 586 (2006), that violations of the knock-and-announce rule in the execution of search warrants don’t require the suppression of evidence. An arrest warrant wasn’t before the Hudson Court, and the Fourth Circuit noted that the parties in Young disagreed about whether Hudson applies in the arrest warrant context. But it didn’t need to decide that issue in light of its holding that there was no knock-and-announce violation.
Hudson notwithstanding, a North Carolina defendant has another argument for suppression. Our state has codified the knock-and-announce rule by statute. Under G.S. 15A-401(e)(1)(c), an officer executing an arrest warrant must “give . . . notice of his authority and purpose” unless doing so would “present a clear danger to human life.” And under G.S. 15A-249 and G.S.15A-251, an officer executing a search warrant must do the same. So a defendant might argue that a knock-and-announce violation requires the application of the statutory exclusionary rule in G.S. 15A-974.
I don’t think that argument works, or at least won’t work very often. An illustrative case is State v. White, 184 N.C. App. 519 (2007), where the state admitted that the police had violated the knock-and-announce rule when executing a search warrant. The court of appeals nonetheless determined that suppression wasn’t required, because the evidence at issue “would have likely been located even in the absence of the forced entry,” i.e., would have been located anyhow during the warrant search. The court reasoned that the evidence wasn’t obtained “as a result of” the improper entry as required by the statutory exclusionary rule. It seems to me that under White, knock-and-announce violations will virtually never result in suppression under G.S. 15A-974. Perhaps a defendant could argue that he was in the process of destroying evidence, and would have succeeded if the police had just waited a little longer before entering. But I have a hard time imagining that argument getting much traction in practice, and absent such an argument, it seems to me that the state will almost always be able to argue that the evidence would have been discovered even absent the violation. Am I missing something? Defense lawyers, if you are getting evidence suppressed for knock-and-announce violations, I’d be interested to hear more about the arguments that are working for you.