{"id":4485,"date":"2010-09-12T09:47:20","date_gmt":"2010-07-30T06:55:49","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-30T06:55:49","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4485","title":{"rendered":"IN refuses to apply Hudson<\/em> to no-knock violation"},"content":{"rendered":"

Violation of constitutional no-knock requirement by SWAT team deciding on its own to enter without knocking without sufficient legal justification required suppression of the search under the Indiana Constitution. Lacey v. State<\/a>, 931 N.E.2d 378 (Ind. App. 2010):<\/p>\n

Here, no circumstances bearing upon officer safety or escape arose after the issuance of the warrant and before its execution. There has been no allegation of furtive movement, attempted flight, or destruction of evidence. Under the totality of the circumstances, we find the unilateral decision to dispense with the knock-and-announce rule unreasonable under Article 1, Section 11 of the Indiana Constitution where the relevant facts could have been presented in application for a \u201cno-knock\u201d warrant.<\/p>\n

Accordingly, we must decide whether the evidence obtained in the search should be excluded. The State urges that we follow Hudson v. Michigan<\/a>, 547 U.S. 586, 590 (2006),which discussed the appropriateness of the exclusionary rule where a \u201cno-knock\u201d entry concededly violated the Fourth Amendment. At the outset, the Court observed that \u201dindiscriminate application of the exclusionary rule\u201d had been rejected, and it was applicable only when its deterrence benefits outweigh its substantial social costs. Id. at 591. …<\/p>\n

. . .<\/p>\n

In this case, the criminal histories of the targeted individuals were known well in advance of the execution of the search warrant. Nonetheless, the officer seeking the warrant did not advise a neutral judicial officer of the circumstances that would arguably have supported a \u201cno-knock\u201d authorization. Rather, the critical decision was made by a person charged with a duty of law enforcement.<\/p>\n

Further, it was admittedly routine and systemic for the Emergency Service Team officers, as opposed to a neutral magistrate, to decide to serve warrants in a \u201cno-knock\u201d manner. Although police officers at times confront emerging exigent circumstances, to which an emergency response is appropriate under the Indiana Constitution, the instant situation did not involve exigencies arising when there was no opportunity to seek judicial sanction for a \u201cno-knock\u201d entry. As Sergeant Strausborger explained, \u201cno-knock\u201d entries into a residence increase the potential for violence against police officers due to misapprehension of circumstances by the occupants. In light of our Indiana Supreme Court\u2019s pronouncement in Holder, acknowledging that intrusions based upon security concerns will be tolerated only \u201cso long as they are reasonably aimed toward those concerns,\u201d 847 N.E.2d at 940, we believe that such entries should remain rare and, where practicable, subject to review by a detached and neutral judicial officer.<\/p><\/blockquote>\n

And Wilkins v. State<\/a>, 2010 Ind. App. LEXIS 1364 (July 27, 2010) holds blanket no-knock is unconstitutional:<\/p>\n

Indiana Code Section 35-33-5-7 does not constitute a blanket prohibition upon no-knock warrants in this State. The \u201cno-knock\u201d execution of the search warrant was supported by reasonable suspicion and thus no Fourth Amendment violation is established. However, under the totality of the circumstances, the \u201cno-knock\u201d execution was unreasonable under the Indiana Constitution. We find suppression of the evidence to be an appropriate remedy in the particular circumstances of this case.\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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