NE: Failure to announce entry to execute a misd warrant on ptf’s grandson survived summary judgment; interests rule serves are important

The trial court erred in granting summary judgment for officers who entered plaintiff’s home to arrest her grandson without announcing and with force. A question of fact is presented on the failure to announce, and it serves important interests. The fact they didn’t pull their guns didn’t matter. Waldron v. Roark, 292 Neb. 889, 2016 Neb. LEXIS 27 (Feb. 26, 2016):

In general, Roark was authorized to enter Waldron’s home under the U.S. Supreme Court’s holding in Payton v. New York for the purpose of effecting the arrest of Copple. But this does not end the analysis. While an officer may be permitted to enter the home under the rule in Payton, the Fourth Amendment is also concerned with the manner of the entry. Officers are required to take additional steps before entering the home for the purpose of executing a warrant.

. . .

[8,9] This statute codifies the common-law requirement of knocking and announcing when serving an arrest warrant prior to breaking into a person’s dwelling. This requirement recognizes the deep privacy and personal integrity interests people have in their home. We have held that the common-law knock-and-announce principle forms a part of a Fourth Amendment inquiry into reasonableness. An officer’s unannounced entry into a home might, in some circumstances, be unreasonable under the Fourth Amendment. Absent countervailing circumstances, the Fourth Amendment to the U.S. Constitution requires that officers knock and announce their purpose and be denied admittance prior to breaking into a dwelling. This would apply equally to the execution of an arrest warrant.

. . .

Thus, the knock-and-announce requirement [of Wilson v. Arkansas] serves to protect the safety of police officers by preventing the occupant from taking defensive measures against a perceived unlawful intruder. Moreover, it protects occupants of the home from similarly being harmed by officers who react to measures of self-defense against perceived intruders. This practical consideration is particularly acute in the case at bar, because Roark and May were not in uniform, did not display badges or the warrant, demanded entry into Waldron’s home, and displayed weapons.

Viewing the facts in the light most favorable to Waldron, we consider if there was a question of fact whether Roark provided proper notice of his office or purpose and displayed his badge or the warrant. The question is whether Roark complied with the knock-and-announce requirement of the Fourth Amendment and § 29-411. Roark and May drove an unmarked vehicle to Waldron’s home. They were not in uniform, and Waldron testified that they failed to display anything that identified them as law enforcement officials. She testified that upon the doorbell ringing, she opened the door cautiously and Roark immediately began to force his way into her home. After forcing his way into the home, Roark stated that he was a sheriff’s deputy and demanded to know where Copple was located. Roark drew his service weapon and began searching the home. At no point before or after their entry did they produce a copy of the warrant or show their badges as Waldron demanded.

Roark argues that his statement identifying himself as a sheriff’s deputy was sufficient to announce his office and purpose. But given the facts of this case when considered most favorably to Waldron, we disagree. Roark was dressed in jeans, a sweatshirt, and a ball cap and did not show his badge. Instead, he displayed a weapon upon entry into Waldron’s home. Although a misdemeanor warrant existed for Copple, Roark failed to produce a copy of the warrant before or after his forced entry into the home.

[12] Waldron could have reasonably believed that Roark was an unknown male forcing his way into her home claiming to be a law enforcement officer. And without some official display of authority, a jury could find that Roark did not properly announce his entry. Indeed, the Legislature has recognized that it is an affirmative defense to the offense of resisting arrest if the peace officer involved was out of uniform and did not identify himself or herself as a peace officer by showing his or her credentials to the person whose arrest is attempted.

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