{"id":31090,"date":"2018-01-01T02:47:12","date_gmt":"2018-01-01T07:47:12","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=31090"},"modified":"2018-01-01T08:10:17","modified_gmt":"2018-01-01T13:10:17","slug":"today-is-or-maybe-the-414th-anniversay-of-semaynes-case-and-knock-and-announce","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=31090","title":{"rendered":"Today is [or maybe] the 414th anniversay of Semayne\u2019s Case and judicial recognition of knock-and-announce and the castle doctrine"},"content":{"rendered":"

Today (as best as can be determined) is the 414th anniversary of Semayne\u2019s Case<\/a> recognizing both knock-and-announce and the castle doctrine at common law. Back then, the dates of decisions weren\u2019t 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.
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\nWhen I argued Wilson v. Arkansas<\/a> 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. \u201cThere is no authority for Ms. Wilson\u2019s theory that the knock and announce principle is required by the Fourth Amendment.\u201d Semayne\u2019s Case, Miller, and Ker were cited, but either distinguished away or, as to Semayne\u2019s Case, simply ignored.<\/p>\n

For the cert petition, I dug deeper than Semayne\u2019s 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\u2019t 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\u2019s case:<\/p>\n

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; …<\/p><\/blockquote>\n

Thus, the knock-and-announce rule and castle doctrine weren\u2019t 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<\/a>, 514 U.S. 927, 932 n. 2 (1995), recognized this longevity:<\/p>\n

This \u201cknock and announce\u201d principle appears to predate even Semayne\u2019s 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 \u201cbut an affirmance of the common law.\u201d 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 \u201cto be driven into a Castle or Fortress,\u201d if the sheriff makes \u201csolem[n] deman[d]\u201d for deliverance of the beasts, and if the person \u201cdid not cause the Beasts to be delivered incontinent,\u201d the King \u201cshall cause the said Castle or Fortress to be beaten down without Recovery\u201d)).<\/p><\/blockquote>\n

Eleven years later, however, the Court in Hudson v. Michigan<\/a>, 547 U.S. 586 (2006), essentially made knock-and-announce voluntary or optional with the police by holding that the exclusionary rule doesn\u2019t 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\u2019s just based on the officers\u2019 rationale for not announcing, and it\u2019s usually unconvincing because they aren\u2019t going to gain enough tactical advantage to risk getting shot. Still, it\u2019s optional, at least under the Fourth Amendment. Then there\u2019s 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\u2019t 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.*
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\n   * Lastly, compare Justice Jackson concurring in 1948 in McDonald v. United States<\/a>, 335 U.S. 451, 460-61 (1948):<\/p>\n

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.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

Today (as best as can be determined) is the 414th anniversary of Semayne\u2019s Case recognizing both knock-and-announce and the castle doctrine at common law. Back then, the dates of decisions weren\u2019t as important and they appeared in reporters well after … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[100,56,83],"tags":[],"class_list":["post-31090","post","type-post","status-publish","format-standard","hentry","category-common-law","category-knock-and-announce","category-scotus"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/31090","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=31090"}],"version-history":[{"count":14,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/31090\/revisions"}],"predecessor-version":[{"id":31104,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/31090\/revisions\/31104"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=31090"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=31090"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=31090"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}