Knock and Announce Reasonable-Wait Requirement
September 14, 2023 - Posted by Ed Esposito
In August, the New Jersey Appellate Division published a decision in State v. Nieves (Docket A-3379-21) where it disagreed with the trail Court’s decision upholding the execution of a knock-and-announce warrant based on the lack of wait time before the forcible entry was made. The matter decided by the court began after the police obtained a knock-and-announce search warrant for narcotics evidence in a two-story duplex. The warrant was executed by a fifteen-member team around 5:00 a.m. and the entry was recorded on surveillance footage provided by the defense.
According to the Court, “The recording shows a number of individuals — the officers — appearing as shadowlike figures in the early morning light and approaching the porch of the residence. Once on the porch, the officers quickly and repeatedly knock and announce their presence in three rapid and uninterrupted sequences, during the last of which an object is hoisted above the waist level of the officers on the porch and thrust forward toward the residence. In that instant, a loud bang is heard, the door to the residence opens, and light from the interior illuminates the porch as the officers first enter the home.” Ibid.
In the course of its opinion, the Court relied on previous decisions and stated that “the officers' wait time must be measured from the completion of the first knock-and-announce to the moment the officers forcibly breached the door with the battering ram.” Ibid. The Court estimated that the time between these two critical points was less than five seconds. In addition, the Court found that the “search warrant did not disclose defendant had any prior violent crime history. The affidavit also did not include any information, from either a confidential informant or otherwise, suggesting defendant might possess weapons or that defendant posed any risk to the officers' lives and safety.” Ibid.
The Court observed, “generally, there are common factors to be applied in determining the reasonableness of the delay between knocking and announcing and a forcible entry. Those factors include:
The Court also observed that “where, as here, the search warrant is founded on evidence showing the defendant is involved in the distribution of narcotics, reasonableness in delay is not a function of merely how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs. [With] respect [to] the destructibility of heroin and cocaine, we take judicial notice of the fact that small quantities of narcotics sold out of a person's home are almost always susceptible to destruction or disposal." (Ibid. Internal quotations and citations omitted.)
Although the Court did state that they “do not find there could never be circumstances under which a waiting time of five seconds or less may be reasonable,” they determined that “the pertinent factors weigh strongly against the abbreviated wait-time here.” Ibid. “The knock-and-announce and forcible breach of the door shown in the recording occurred so quickly and with such fluidity that the occupants of the house were effectively denied the requisite pause and reasonable wait period to which they are constitutionally entitled prior to the officers' forcible entry.” Ibid.
As stated in their opinion, “the rationale undergirding the knock-and-announce rule is compelling. The rule serves the worthwhile purposes of decreasing the potential for violence, protecting the privacy of the individuals within the residence, and preventing the physical destruction of property. (Ibid. Internal quotations and citations omitted.) “A necessary corollary of the knock-and-announce rule is that when the police announce their presence and are greeted with silence a reasonable time must elapse between the announcement and the officer's forced entry. Officers that fail to wait a reasonable time before forcibly entering a residence following an appropriate knock-and-announce violate the reasonableness requirements of the Fourth Amendment.” (Ibid. Internal quotations and citations omitted.)
In August, the New Jersey Appellate Division published a decision in State v. Nieves (Docket A-3379-21) where it disagreed with the trail Court’s decision upholding the execution of a knock-and-announce warrant based on the lack of wait time before the forcible entry was made. The matter decided by the court began after the police obtained a knock-and-announce search warrant for narcotics evidence in a two-story duplex. The warrant was executed by a fifteen-member team around 5:00 a.m. and the entry was recorded on surveillance footage provided by the defense.
According to the Court, “The recording shows a number of individuals — the officers — appearing as shadowlike figures in the early morning light and approaching the porch of the residence. Once on the porch, the officers quickly and repeatedly knock and announce their presence in three rapid and uninterrupted sequences, during the last of which an object is hoisted above the waist level of the officers on the porch and thrust forward toward the residence. In that instant, a loud bang is heard, the door to the residence opens, and light from the interior illuminates the porch as the officers first enter the home.” Ibid.
In the course of its opinion, the Court relied on previous decisions and stated that “the officers' wait time must be measured from the completion of the first knock-and-announce to the moment the officers forcibly breached the door with the battering ram.” Ibid. The Court estimated that the time between these two critical points was less than five seconds. In addition, the Court found that the “search warrant did not disclose defendant had any prior violent crime history. The affidavit also did not include any information, from either a confidential informant or otherwise, suggesting defendant might possess weapons or that defendant posed any risk to the officers' lives and safety.” Ibid.
The Court observed, “generally, there are common factors to be applied in determining the reasonableness of the delay between knocking and announcing and a forcible entry. Those factors include:
- the defendant's violent criminal history
- an informant's tip that weapons will be present
- any "risks to the officers' lives and safety
- the size and layout of the property
- whether persons other than defendant reside there
- whether others involved in the crimes are expected to be present and
- the time of day of the search.” (Ibid. Internal quotations and citations omitted.)
The Court also observed that “where, as here, the search warrant is founded on evidence showing the defendant is involved in the distribution of narcotics, reasonableness in delay is not a function of merely how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs. [With] respect [to] the destructibility of heroin and cocaine, we take judicial notice of the fact that small quantities of narcotics sold out of a person's home are almost always susceptible to destruction or disposal." (Ibid. Internal quotations and citations omitted.)
Although the Court did state that they “do not find there could never be circumstances under which a waiting time of five seconds or less may be reasonable,” they determined that “the pertinent factors weigh strongly against the abbreviated wait-time here.” Ibid. “The knock-and-announce and forcible breach of the door shown in the recording occurred so quickly and with such fluidity that the occupants of the house were effectively denied the requisite pause and reasonable wait period to which they are constitutionally entitled prior to the officers' forcible entry.” Ibid.
As stated in their opinion, “the rationale undergirding the knock-and-announce rule is compelling. The rule serves the worthwhile purposes of decreasing the potential for violence, protecting the privacy of the individuals within the residence, and preventing the physical destruction of property. (Ibid. Internal quotations and citations omitted.) “A necessary corollary of the knock-and-announce rule is that when the police announce their presence and are greeted with silence a reasonable time must elapse between the announcement and the officer's forced entry. Officers that fail to wait a reasonable time before forcibly entering a residence following an appropriate knock-and-announce violate the reasonableness requirements of the Fourth Amendment.” (Ibid. Internal quotations and citations omitted.)