Generalized, boilerplate statements about drug dealers for a no-knock search warrant don’t satisfy the Fourth Amendment, and the trial court did not err in suppressing the search for lack of announcement. In addition, the product of a search doesn’t justify the warrant. The ends don’t justify the means. State v. Lopez-Chavez, 2015 Ga. App. LEXIS 35 (February 10, 2015):
(a) … Concerning execution of the warrant, testimony was presented that officers entered the residence with their weapons drawn in a SWAT type formation after one of the officers kicked in the door. Although the officers repeatedly identified themselves and announced their presence after they were inside the house, they did nothing to signal their presence prior to entering the residence.
Following the hearing, the trial court found probable cause to support the issuance of the warrant, but determined the request for a no-knock entry was based on generalizations and stale, unsubstantiated information, unsupported by “any credible particularized facts and circumstances.” Accordingly, the trial court found the warrant was illegally executed and suppressed all evidence seized as a result of the search. The State challenges the trial court’s findings concerning the no-knock provision, arguing that the averments in the affidavit were sufficient to justify the no-knock entry and that even if they were not, the evidence should not have been suppressed for other reasons.
The State first argues that the magistrate was authorized to reasonably conclude that a no-knock intrusion was warranted because evidence showing the existence of co-conspirators in a large-scale drug operation, such as financial papers, electronic equipment, computers and cell phones, could have been easily destroyed if officers executing the warrant had announced their presence before entering the residence. This contention is unavailing for several reasons. Most significantly, the State did not make this argument before the trial court and thus has waived the right to make this assertion on appeal. State v. McCarthy, 288 Ga. App. 426, 428-429 (2) (654 SE2d 239) (2007).
And, in any event, this argument fails on the merits. The affidavit merely contained a generalized statement that unspecified evidence might be destroyed if the police announced their presence before entering, and it does not appear that the officer who presented the affidavit pointed to any specific items or data that might be destroyed if the no-knock intrusion was not allowed. Thus, the magistrate was not provided with underlying details that would have allowed him to evaluate whether these conclusions were based on specific facts or whether they were merely boilerplate based on speculation and presumptions. Willoughby v. State, 315 Ga. App. 401, 404 (727 SE2d 194) (2012). See Barnett, 314 Ga. App. at 18 (“[A] no-knock provision is permissible only when based on a neutral evaluation of each case’s particular facts and circumstances, not on blanket provisions based on generalized experience.”); Braun, 324 Ga. App. at 243; (“Blanket provisions based on the generalized experience of the officer seeking the warrant do not authorize no-knock
provisions. An affidavit based on the general ease of destroying drug evidence and the officer’s experience is also insufficient, as is the mere fact that the warrant is being issued in a felony drug investigation.”) (citation omitted). The generalized statement contained in the affidavit was insufficient to authorize a no-knock entry, and, accordingly, the State’s first argument provides no basis for reversal.(b) The State also argues that the request for the no-knock entry was justified based on the officers’ reasonable suspicion that knocking and announcing their presence could expose them to undue harm at the hands of dangerous drug dealers. The State is correct that a no-knock provision in a warrant is sufficiently supported “if the information supplied by affidavit and sworn testimony would lead to the reasonable conclusion that the officers could be harmed if they announced their authority and purpose.” Kimble, 301 Ga. App. 237, 244-245 (5) (687 SE2d 242) (2009). Braun, 324 Ga. App. at 244 (1) (b). But the only recitation in the affidavit concerning weapons on the premises was based on an obviously stale, unverified tip that officers received seven years earlier. There was no indication that weapons had been observed on the premises since that time, including no evidence that weapons had been observed by officers conducting surveillance of the premises or that Martin had observed weapons when he bought drugs on or near the premises the day the warrant was executed. Further, there was no evidence that any persons suspected to be on the premises had a previous history of violence or that they even possessed a firearm such that they might be expected to use weapons against the officers
conducting the search. Thus, it appears the request for a no-knock entry was solely based on a generalized experience or belief that weapons are associated with the drug trade, and the trial court properly determined that the no-knock provision was not justified on this basis. Cash, 316 Ga. App. at 327; Barnett, 314 Ga. App. at 19; Adams v. State, 201 Ga. App. 12, 14 (3) (410 SE2d 139) (1991). Cf. Braun, 324 Ga. App. at 243-244 (1) (a) (prior arrests based on probable cause for battery and possession of a firearm formed sufficient basis to conclude defendant was a man of violence who might harm officers when they entered the home); Kimble, 301 Ga. App. at 244-245 (5) (no-knock provision appropriate because the defendant had a 9pending weapons charge and prior drug and theft convictions); Cook v. State, 255 Ga. App. 578, 579 (565 SE2d 896) (2002) (no-knock provision justified because accused had been convicted of battery and a prior drug offense).. . .
Finally, the State repeatedly requests the Court to consider the results of the search to justify failing to knock and announce the officers’ entry. We take this opportunity to make it clear that in reviewing whether a no-knock provision in a warrant is justified, the focus is on the sworn testimony and evidence presented to the judge who issued the warrant. Jones v. State, 126 Ga. App. 841, 845 (192 SE2d 171) (1972) (sufficiency of the affidavit supporting a warrant must be determined at the time the warrant was issued, and any deficiency in the affidavit cannot be supplied by facts discovered during the search). Allowing the ends to justify the means would undermine the directive in OCGA § 17-5-27 that police must make a good faith effort to knock and announce their presence before executing a search warrant.
