Today is [or maybe] the 414th anniversay of Semayne’s Case and judicial recognition of knock-and-announce and the castle doctrine

Today (as best as can be determined) is the 414th anniversary of Semayne’s Case recognizing both knock-and-announce and the castle doctrine at common law. Back then, the dates of decisions weren’t as important and they appeared in reporters well after the fact. The date has been given as 1603 and 1604. Consensus seems to be January 1, 1604.

When I argued Wilson v. Arkansas in 1995, the issue was whether knock-and-announce was recognized at common law and, therefore, had to be recognized under the Fourth Amendment. The state court had rejected that argument in a brief paragraph. “There is no authority for Ms. Wilson’s theory that the knock and announce principle is required by the Fourth Amendment.” Semayne’s Case, Miller, and Ker were cited, but either distinguished away or, as to Semayne’s Case, simply ignored.

For the cert petition, I dug deeper than Semayne’s Case and found its authority, the Statute of Westminster 1. c. 17 (1275), in basement of the Arkansas Supreme Court library in books that likely hadn’t been opened in 75-100 years. They were all historical and in an area where the lights were left off although the area was still cooled in the summer. The statute was pretty clear, as referenced in Semayne’s case:

that appeareth by the Statute of Westm. 1. c. 17. (which is but an affirmance of the Common Law) as it hereafter appeareth, for the Law without default in the owner abhorre destruction or breaking of any house which is for the habitation and safety of a man, by which great damage and inconvenience may follow to the party, when no default is in him; for perhaps he doth not know of the process, which, if he had notice of it is presumed that he will obey it; …

Thus, the knock-and-announce rule and castle doctrine weren’t 391 years old–knock-and-announce at least was more than 720 years old because it was first codified in 1275. It may be the oldest common law principle for Fourth Amendment purposes. Wilson v. Arkansas, 514 U.S. 927, 932 n. 2 (1995), recognized this longevity:

This “knock and announce” principle appears to predate even Semayne’s Case, which is usually cited as the judicial source of the commonlaw standard. Semayne’s Case itself indicates that the doctrine may be traced to a statute enacted in 1275, and that at that time the statute was “but an affirmance of the common law.” 5 Co. Rep., at 91b, 77 Eng. Rep., at 196 (referring to 3 Edw. I, ch. 17, in 1 Statutes at Large from Magna Carta to Hen. 6 (O. Ruffhead ed. 1769) (providing that if any person takes the beasts of another and causes them “to be driven into a Castle or Fortress,” if the sheriff makes “solem[n] deman[d]” for deliverance of the beasts, and if the person “did not cause the Beasts to be delivered incontinent,” the King “shall cause the said Castle or Fortress to be beaten down without Recovery”)).

Eleven years later, however, the Court in Hudson v. Michigan, 547 U.S. 586 (2006), essentially made knock-and-announce voluntary or optional with the police by holding that the exclusionary rule doesn’t apply to knock-and-announce violations. Now, in talking with those who do those no-knock warrants, only the more mature officers recognize the salutary purposes of knock-and-announce are to keep homeowners and police officers from unnecessarily shooting each other. This is, of course, not in depth empirical research; it’s just based on the officers’ rationale for not announcing, and it’s usually unconvincing because they aren’t going to gain enough tactical advantage to risk getting shot. Still, it’s optional, at least under the Fourth Amendment. Then there’s the obvious problem: did the homeowner even hear the officers before he pulled the trigger? And who is going to win that swearing match? Even a bodycam outside doesn’t help answer what somebody inside actually heard–it only shows us an announcement that they will at least argue shows that the homeowner could or should have heard. Not much solace to the person shot. Thus, treating knock-and-announce too cavalierly is just dangerous.*
   * Lastly, compare Justice Jackson concurring in 1948 in McDonald v. United States, 335 U.S. 451, 460-61 (1948):

I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued. That it did not do so on this occasion was due to luck more than to foresight. Many homeowners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot. A plea of justifiable homicide might result awkwardly for enforcement officers. But an officer seeing a gun being drawn on him might shoot first. Under the circumstances of this case, I should not want the task of convincing a jury that it was not murder. I have no reluctance in condemning as unconstitutional a method of law enforcement so reckless and so fraught with danger and discredit to the law enforcement agencies themselves.

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