The officer’s entering through an open door didn’t require knock-and-announce at common law. United States v. Sherrod, 2020 U.S. App. LEXIS 22296 (8th Cir. July 17, 2020):
In evaluating the Fourth Amendment’s protection against unreasonable searches and seizures, the Supreme Court has “looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing.” Wilson v. Arkansas, 514 U.S. 927, 931 (1995). The Court observed that even though the common law “protected a man’s house as ‘his castle of defense and asylum,'” id. (quoting 3 W. Blackstone, Commentaries * 288), it has been long recognized that “‘when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do the execution of the King’s process, if otherwise he cannot enter,'” id. (quoting Semayne’s Case, 77 Eng. Rep. 194, 195 (K.B. 1603)). But the ability to break open a door is limited by “an important qualification” namely that “‘before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.'” Wilson, 514 U.S. at 931 (quoting Semayne’s Case, 77 Eng. Rep. at 195-96). Thus, the Court had “no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.” Id.
Semayne’s Case also says that “[i]n all cases when the door is open the sheriff may enter the house, and do execut[e] at the suit of any subject, either of the body, or of the goods.” 77 Eng. Rep. at 197 (emphasis added). So, at common law the knock-and-announce rule hinged on whether the sheriff or bailiff confronted an open or closed door. See id.; Hodges v. Marks, 79 Eng. Rep. 414, 415 (K.B. 1615) (upholding an arrest after a bailiff entered a home through an open door and seized the arrestee); see also Steagald v. United States, 451 U.S. 204, 217 n.11 (1981) (observing at the common law “an open outer door was apparently regarded as the equivalent of a consent of the occupant for the constable to enter the home and conduct a search.”). The Fourth Amendment does not require officers to knock and announce their presence before entering an open door.
The knock-and-announce rule’s limited application to closed but not open doors makes sense in light of the rule’s underlying purposes. The rule protects individuals from harm that may flow from an unannounced forced entry, protects property by allowing individuals to comply with commands, and also protects “those elements of privacy and dignity that can be destroyed by a sudden entrance.” Hudson v. Michigan, 547 U.S. 586, 594 (2006); see also Mendoza, 281 F.3d at 717 (same). A closed door stands between officers and a home’s occupants in a way that an open door obviously does not. Where a door is open officer and occupant each have increased visibility into and out of a home. This increased visibility not only eliminates a potential forced entry, it may also provide notice of an impending interaction—especially if officers are in uniform. And when a door is open this “especially private sphere” is exposed to any passerby. See Florida v. Jardines, 569 U.S. 1, 14 (2013) (Kagan, J., concurring). Requiring officers to adhere to the knock-and-announce rule when facing an open door would “force[] [officers] to comply with formalistic rules when the circumstances direct otherwise.” Mendoza, 281 F.3d at 717.
Even though the knock-and-announce rule does not apply here, Officer Trost’s conduct does not escape Fourth Amendment scrutiny. “The Fourth Amendment says nothing specific about formalities in exercising a warrant’s authorization.” United States v. Banks, 540 U.S. 31 (2003). Instead its “touchstone is reasonableness … measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 34 (1996) (citation omitted). Our job is to assess reasonableness case by case. Banks, 540 U.S. at 35-36.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)