IN: Whether knock-and-announce is required can be determined at the scene; preapproval not mandatory

Whether knock-and-announce is required at the time of the search can be determined by the officers at the scene based on the circumstances, and it does not require preapproval by the issuing magistrate. Lacey v. State, 2011 Ind. LEXIS 351 (May 10, 2011), rev’g Lacey v. State, 931 N.E.2d 378 (Ind. App. 2010):

The major thrust of the defendant’s argument is that the Search and Seizure Clause in Article 1, Section 11 should be interpreted to require law enforcement to obtain prior express authorization from the judicial officer issuing the warrant if the grounds for bypassing the knock and announce procedure are based solely upon facts known when the warrant is sought. The use of no-knock warrants has been previously approved. Id. at 47. But Indiana jurisprudence has not confronted whether police must obtain no-knock warrants when justified solely by information known at the time of warrant application.

Other jurisdictions have addressed the use of no-knock warrants. They are permitted in the federal courts.

The practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time. But … a magistrate’s decision not to authorize a no-knock entry should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.

Richards v. Wisconsin, 520 U.S. 385, 396 n.7, 117 S. Ct. 1416, 1422 n.7, 137 L. Ed. 2d 615, 625 n.7 (1997). Judicial opinions in Florida, Oregon, and Virginia have declared that a magistrate lacks the authority to issue a no-knock warrant and that the determination to bypass the knock and announce procedure is to be made only by the executing officers at the time of execution. Ten states, including Indiana, have recognized judicially the validity of the practice of magistrates issuing no-knock warrants. But we find only one jurisdiction whose opinions require police to inform the issuing magistrate of the circumstances believed to justify an unannounced entry and to obtain specific advance authorization for such entry. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). Statutory provisions in twelve states authorize the issuance of no-knock warrants. Several of these statutes appear to authorize the execution of a warrant by forceful entry into a residence only in the event of either of two conditions: (a) refusal of admittance after announcement of police purpose, or (b) exigent circumstances if a no-knock entry is specifically authorized by the judicial officer. See, e.g., Neb. Rev. Stat. § 29-411; N.Y. Crim. Proc. Law § 690.50; N.D. Cent. Code § 29-29-08; Okla. Stat. tit. 22, § 1228; Utah Code Ann. § 77-23-210. We do not find case authority from these jurisdictions addressing whether such statutes prohibit police in the absence of such advance judicial authorization from executing a warrant in a no-knock fashion due to exigent circumstances. (footnotes omitted)

There are numerous cases cited in the omitted footnotes. The co-defendant’s case:

The police provided the following reasons to justify their forced entry without first knocking and announcing their presence: (a) co-defendant had a warrant stating he might be armed; (b) co-defendant was a felon convicted for dealing in cocaine; (c) police believed defendant and co-defendant were in the house; (d) there would probably be weapons inside; and (e) defendant had a propensity for violence. The trial court correctly denied defendant’s motion to suppress, because safety concerns permitted the police to serve the warrant without knocking and announcing their presence. The no-knock execution of the warrant did not violate Ind. Code § 35-33-5-7. The police were not required to present known exigent circumstances and obtain specific judicial authorization before executing a no-knock entry. Suppression was not appropriate under federal law. Wilkins v. State, 946 N.E.2d 1144 (Ind. 2011).