A Police Ruse Does Not Replace Notice For The Knock And Wait Rule

Posted on by Steven W. Thayer, PS

On behalf of Steven W. Thayer, P.S. Criminal Defense Attorney on Saturday, April 27, 2019.

Police may try different tactics to gain entry into a home to execute an arrest warrant or a search warrant. Despite having several mechanisms available, entry into a home or building must follow appropriate procedures. The fact that police may make different choices in different cases, they are not given carte blanche to enter a home – they must follow the appropriate rules under the circumstances.

Washington law authorizes police to use force to enter a home or other structure to make a criminal arrest, but only after notifying the occupants of the building of the police presence and the lawful purpose for entry. This is often referred to as the “knock and wait” rule.

The idea here is that a person inside their own home has constitutional rights. If someone walks up to a door, knocks and claims to be police, the person inside should have the opportunity to verify that police are actually outside. Someone claiming to be a member of law enforcement as a ruse may use that false identity to gain entry to harm the occupant.

Police may, at times, seek entry into a home using a ruse of their own. They may claim to be someone the occupant of a home knows, hoping the person will open the door to admit their friend. However, the statute authorizing forcible entry is not available when police use a ruse as a standalone tactic. There may be other rules or exceptions in different situations that are not addressed in this article.

Confusing Two Rules Does Not Make It Right

In State v. Ellis, deputy sheriffs confused the steps of different rules to gain entry into a home to serve a search warrant. Deputies gathered outside the residence. Some sheriff’s deputies were in plain clothes, while others were in uniform. However, the uniformed officers were not visible for anyone inside the home. The plain clothes deputies stood before the door, with at least one holding a badge. Again, the badge was not visible to anyone in the home.

A deputy knocked on the door and when someone inside asked, “who is there?” The deputy provided a first name in response. The person inside the home asked for the person’s last name, which the deputy added, apparently using the name of an acquaintance of the person in the home.

The occupant opened the door. Deputies claim that the man then started to shut the door. The deputies identified themselves as law enforcement as they were in the process of using force to enter the home, according to court records. The deputies seized evidence during an ensuing search and charges were filed.

Dismissing The Charges

Before trial, criminal defense lawyer Steven W. Thayer challenged the entry into the home as in violation of the Fourth Amendment. Prosecutors claimed that the deputies were justified in entering the home, either based on the knock and wait rule, or based upon the occupant’s reaction of trying to shut the door when he saw the deputies outside. The trial court found in favor of the defense, suppressed evidence obtained in the search and dismissed the charges.

The state appealed. The appellate panel agreed with the trial court’s decision to suppress evidence, but clarified that if police are unsuccessful in using a ruse to gain entry, they may then try to use the knock and wait rule as a follow up. In this case, the deputies did not wait after they identified themselves as law enforcement. Although they timeline is somewhat ambiguous, the appellate panel found that law enforcement unlawfully entered the home forcefully, without prior notice of their true identity.

In some cases, a reaction to the presence of police, such as slamming the door, or furtive movements inside, have created a new set of facts to justify entry. Here, these so-called exigent circumstances were not present. The facts show that the man in the home saw no uniformed officers, and no identifying badge. The judges believed the man was justified in protecting himself from the unidentified people on his porch. When he allegedly sought to start closing the door, the deputies had used a false name as a ruse to gain entry.

The case highlights the complexities of analyzing search and seizure issues. Note, that constitutional principles are not mere technicalities, they are guaranteed rights that an experienced criminal defense lawyer may help to safeguard when law enforcement unlawfully conducts a search.

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