CA5: Knock-and-announce still lives: No § 1983 qualified immunity for violation of rule

After discussing at length the purposes of the knock-and-announce rule and how well established it is, the court finds that the officer was not entitled to qualified immunity for a violation of the rule for entry into plaintiffs’ home without announcing. It was also not objectively reasonable. Trent v. Wade, 2015 U.S. App. LEXIS 391 (5th Cir. January 9, 2015), substituted opinion 2015 U.S. App. LEXIS 1462 (10th Cir. January 29, 2015):

We now turn to the first prong of the qualified immunity analysis: whether Wade violated the Constitution. See Saucier v. Katz, 533 U.S. at 200. The question here is whether, viewing the facts in the light most favorable to the Trents, Wade violated the knock-and-announce rule without justification. To answer this question, we begin with Wade’s contention that the district court’s conclusion that Wade was in “hot pursuit” justifies any violation of the rule. Citing United States v. Santana, 427 U.S. 38 (1978), Wade argues that, in the midst of a hot pursuit, a fleeing felon cannot retreat into his house to thwart an otherwise proper arrest. This is true, but only as far as it goes. Santana and the hot pursuit exception give an officer the extraordinary authority to carry out a warrantless search or seizure in the home. The knock-and-announce rule, on the other hand, is concerned not with the propriety of the search or arrest but rather, as explained above, the “method of an officer’s entry.” Wilson, 514 U.S. at 934. Santana (a pre-Wilson case) did not establish an exception to the knock-and-announce rule or even address the method of entry. More important, neither Wilson nor Richards invoked hot pursuit as a justification for a no-knock entry.

The Supreme Court made clear in Richards that, to justify a no-knock entry, an officer must have a reasonable suspicion that knocking and announcing would be dangerous or futile or that it would inhibit effective investigation of the crime. Hot pursuit itself may give the officer the authority to be inside a home without a warrant, but it does not have any bearing on the constitutionality of the manner in which he enters the home.11 The entry itself is the point of the knock-and-announce rule. We conclude that hot pursuit—unless accompanied by one of the specific justifications enumerated in Richards—does not justify a no-knock entry. Wade points to no authority to the contrary. The fact that the pursued in a hot pursuit is aware of the officer’s presence says nothing, without more, about the awareness of the other occupants of the home, all of whom are protected by the knock-and-announce rule. Therefore, the mere fact that the district court upheld the constitutionality of Wade’s search of the Trents’ home as one carried out in hot pursuit does not justify Wade’s failure to knock and announce.

Because no blanket hot pursuit justification exists, Wade must be able to articulate his reasonable suspicion that the occupants of the Trents’ home were already aware of his presence before he opened the door and walked in unannounced. At the summary judgment stage, the Trents were required to demonstrate genuine issues of material fact about whether such reasonable suspicion existed. See Brown, 623 F.3d at 253. We conclude, just as the district court did, that the Trents did so.

Although the facts here demonstrate that Richard was aware of Wade’s presence and authority, the summary judgment record reflects a fact issue as to whether Wade knew or should have known that the whole Trent family was in the house. As Wade testified, as soon as he walked into the house, he heard others moving upstairs, and he told the backup officers that “they” were upstairs. Furthermore, the record reflects a fact issue as to whether, in the time between Wade’s arrival at the Trents’ home and his no-knock entry (a matter of seconds), Wade developed a reasonable suspicion that the other occupants of the home, at 2:00 a.m., were awake and aware of his authority and purpose. We agree with the district court’s conclusion that a genuine issue of material fact exists as to whether “a reasonable officer would have taken into account that other residents could have been asleep at 2:00 a.m.,” a circumstance that would necessitate “some manner of forewarning prior to entry.” As the district court found, “the residents appeared to be awaken[ed] not from Richard entering the house, but rather from Wade’s entry and movement to the stairs.” We therefore conclude that resolving whether knocking and announcing would have been a useless gesture requires resolving genuine issues of material fact.


The second prong of the qualified immunity analysis requires us to decide whether the knock-and-announce rule—i.e., the Trents’ right to be free from a no-knock entry—is “clearly established.” See Saucier v. Katz, 533 U.S. at 200. A right is clearly established only if “the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Plumhoff, 134 S. Ct. at 2023. A case directly on point is not required; rather, “[t]he central concept is that of ‘fair warning’: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740 (2002)).

As explained above, Wilson and Richards placed the knock-and-announce rule and the justifications for dispensing with it beyond debate. With respect to the justifications, any reasonable officer would know that he was violating the rule if he did not have reasonable suspicion that knocking and announcing would be dangerous or futile or that it would inhibit effective investigation of the crime. Plumhoff, 134 S. Ct. at 2023. The rule and the justifications are therefore clearly established. Any reasonable officer would understand that, because the knock-and-announce rule serves to alert the occupants of a home of an impending lawful intrusion, the futility justification requires reasonable suspicion that the occupants of the home to be searched are already aware of the officer’s presence. The Fifth Circuit’s decision in Seelig and the Supreme Court’s decisions in Wilson and Richards gave Wade the “fair warning” that the law requires. See Roe, 299 F.3d at 409. Although the law in our circuit is not flush with cases explaining specific circumstances in which officers were or were not entitled to rely on the futility justification, the knock-and-announce rule and its accompanying reasonable suspicion requirement are clear.

In light of the genuine issues of material fact regarding whether Wade violated clearly established Fourth Amendment rights when he entered the Trents’ home without knocking or announcing his presence, the district court was correct to deny qualified immunity on this ground. The remaining fact issues must be resolved at trial.


Wade also argues that he is entitled to qualified immunity because his actions were “objectively reasonable.” However, “objective reasonableness” is not a separate prong in the qualified immunity analysis. As discussed, the qualified immunity analysis involves two inquiries: (1) whether the official violated a statutory or constitutional right and (2) whether that right was clearly established. Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc). The analysis does not allow us to examine the “objective reasonableness” of an officer’s action without reference to clearly established law. Accordingly, Wade is not entitled to qualified immunity on the ground that his actions were “objectively reasonable.”

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