By Mike Maharrey
A bill prefiled in the Texas House would ban “no-knock” warrants and set the foundation to nullify several Supreme Court opinions in practice and effect.
On Nov. 18, Rep. Ron Reynolds (D) prefiled House Bill 762 (HB762) for introduction in the 2023 legislative session. The legislation would ban Texas judges from issuing warrants allowing “no-knock” entry. The bill defines “no-knock entry” as “a peace officer’s entry, for the purpose of executing a warrant, into a building or other place without giving notice of the officer’s authority or purpose before entering.”
Nullifying the Supreme Court
Passage of HB762 would effectively nullify and make irrelevant several Supreme Court opinions that give police across the U.S. legal cover for conducting no-knock raids.
n the 1995 case Wilson v. Arkansas, the Supreme Court established that police must peacefully knock, announce their presence, and allow time for the occupants to open the door before entering a home to serve a warrant. But the Court allowed for “exigent circumstance” exceptions if police fear violence, if the suspect is a flight risk, or if officers fear the suspect will destroy evidence.
As journalist Radley Balko notes, police utilized this exception to the fullest extent, “simply declaring in search warrant affidavits that all drug dealers are a threat to dispose of evidence, flee or assault the officers at the door.”
The SCOTUS eliminated this blanket exception in Richards v. Wisconsin (1997) requiring police to show why a specific individual is a threat to dispose of evidence, commit an act of violence or flee from police. But even with the opinion, the bar for obtaining a no-knock warrant remains low.
“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” [Emphasis added]
Reasonable suspicion is an extremely low legal bar to meet. Through this exception, police can justify no-knock entry on any warrant application. In effect, the parameters in the SCOTUS ruling make no-knock the norm instead of the exception.
A third Supreme Court ruling effectively eliminated the consequences for violating the “knock and announce” requirement even without a no-knock warrant. In Hudson v. Michigan (2006), the High Court held that evidence seized in violation of knock and announce was not subject to the exclusionary rule. In other words, police could still use the evidence in court even though they technically gathered it illegally.
Significantly, were it not for the dubious “incorporation doctrine” made up by the Supreme Crout based on the 14th Amendment that purportedly empowers the federal government to apply the Bill of Rights to the states, these cases would have never gone to federal court and we wouldn’t have these blanket rules.
Without specific restrictions from the state, police officers generally operate within the parameters set by the High Court. By passing restrictions on no-knock warrants, states set standards that go beyond the Supreme Court limits and in effect, nullify the SCOTUS opinion.
HB762 will be officially introduced when the Texas legislature convenes on Jan. 10. At that time, it will be referred to a committee where it must pass by a majority vote before moving forward in the legislative process.