{"id":870,"date":"2008-01-25T16:11:04","date_gmt":"2007-03-24T08:48:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-03-24T08:48:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=870","title":{"rendered":"Oklahoma states it is prepared to not follow Hudson<\/em>, but it dodges the issue in the case before it"},"content":{"rendered":"

Oklahoma indicates that it would not follow Hudson<\/em> under state statute, adopted at the time of statehood–a failure to properly knock and announce should lead to suppression of the evidence. In this case, however, the issue was deemed waived by trial counsel not renewing the issue at trial. Brumfield v. State<\/a>, 2007 OK CR 10, 155 P.3d 826 (2007):<\/p>\n

Hence the State argues, quite reasonably, that even if the execution of the warrant at Brumfield’s home violated the Fourth Amendment’s knock-and-announce requirement, the evidence obtained thereafter need not be suppressed, under the authority of Hudson<\/em>.<\/p>\n

Brumfield responds, however, also quite reasonably, that the decision in Hudson does not control this Court’s interpretation of our own state statute, namely, 22 O.S.2001, \u00a7 1228. This provision authorizes the use of force in the execution of a search warrant on an occupied home only under two particular circumstances. First, it establishes criteria under which a “no-knock” warrant can be issued by a magistrate, thereby allowing a forceful entry without any warning, where there is reasonable cause to believe that one or more specific “exigent circumstances” exist. Otherwise, \u00a7 1228 does not allow the forceful entry into a home for the execution of a search warrant, unless “[t]he officer has been refused admittance after having first given notice of his authority and purpose.” Although no-knock warrants were not legislatively authorized until 1990, Oklahoma’s statutory requirement that before an officer can use force in the execution of a search warrant, he must (1) give notice of his authority and purpose, and (2) be refused admittance, dates back to statehood.<\/p>\n

Furthermore, this Court has been excluding evidence obtained from searches following a violation of our \u00a7 1228 “notice of authority” and “refusal of admittance” requirements since at least as early as 1974-long before the Supreme Court’s 1995 decision in Wilson held that “knock and announce” is constitutionally required. In Sears v. State<\/em>, this Court held that the failure of officers who were executing a search warrant to comply with \u00a7 1228 necessitated reversal of the defendant’s conviction for possession of marijuana with intent to distribute. The Sears Court noted the then-recent repeal of a federal statute authorizing no-knock warrants and commented as follows: <\/p>\n

“We believe the Legislature of the State of Oklahoma displayed foresight and wisdom by refusing to cast out our announcement of authority and purpose requirement and implementing in its stead a once-popular, and now discredited, ‘no knock’ entrance procedure. In so doing, the Legislature stood fast by our traditional values and guarded the fundamental rights of all our citizens.”<\/p>\n

This Court’s 1979 decision in Erickson v. State<\/em> followed the approach of Sears. And neither party has offered evidence to suggest that this Court has wavered from this approach, i.e.,<\/em> of holding that evidence obtained in a search following a violation of \u00a7 1228, where there are no exigent circumstances, is not admissible against the homeowner. Hence this Court has a long history of enforcing \u00a7 1228 through the suppression of evidence quite apart from decisions of the United States Supreme Court regarding the requirements of the Fourth Amendment. In addition, Oklahoma remains free to interpret our own state constitution, with its own protection against “unreasonable searches or seizures,” more broadly than the United States Supreme Court interprets the federal constitution. <\/p><\/blockquote>\n

Comment:<\/em> While courts are often loathe to discuss academic questions, this issue apparently got serious attention from the Oklahoma court, despite the fact it was deemed waived. One judge dissented because the state constitutional provision was identical to the Fourth Amendment, but the majority was talking about statutory interpretation.<\/p>\n

The Wisconsin Supreme Court upheld a decision of its Court of Appeals that the trial court’s finding of reasonable suspicion was clearly erroneous. One factor alone could be enough in the right case, but this wasn’t it; on the totality of circumstances, there was no reasonable suspicion, and the officer’s claim of reasonable suspicion was a mere hunch. State v. Johnson, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182 (2007), aff’g 2006 WI App 15, 288 Wis. 2d 718, 709 N.W.2d 491 (App. 2006).<\/p>\n","protected":false},"excerpt":{"rendered":"

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