Quote:
Originally Posted by Kazuaki Shimazaki II
That already seems like a dangerous amount of discretion given to the police. What stops them from using their discretion to rule every time there is a threat?
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The court
The police have to knock and wait a "reasonable amount of time" for you to answer. Once the reasonable amount of time has passed they are within the limits of the warrant to kick the door down.
however, When these decisions are made by police in the field to over-rule the warrant and kick the door down without knocking when it is a knock only warrant, it is reviewed apparently on a case by case basis by the courts.
For example:
If you were suspected of steeling say... a car, and you were keeping it in your garage, the cops would not be justified in just kicking your door down and running in on a standard knock and announce warrant... however if they DID make the decision to do that for fear that you were going to flush the stolen property down the toilet, the court would very likely not look kindly on it and would therefore not allow the vehicle being found on your property to be admitted as evidence in a trial against you.
Thats why this sort of field decision is easily made and can be justified in a court of law when they are searching out a baggie of crack and not easily upheld in a court of law when they are looking for 5 suitcases full of stolen money, or a stolen car, or a bedroom full of stolen TVs and XBOXs etc.
Example 2:
a couple of police cars pull up on your property to serve a knock and announce warrant for your suspected possession of a stolen vehicle (or whatever tangible property). A neighbor approaches the officers as they walk toward your front door and informs them that he has seen you through your windows walking around all morning with a rifle. The officers decided to just bust in, instead of knock and announce, they surprise you, you drop the rifle, hit the dirt and they subdue you, they find the stolen property and arrest you. Bam... it all holds up in court and you are found guilty. sorry, dont steal a car next time.
Example 3: (in line with the scenario from the original post)
a couple of police cars pull up on your property to serve a knock and announce warrant for your suspected possession of a stolen vehicle (or whatever tangible property). A neighbor approaches the officers as they walk toward your front door and informs them that he has seen you through your windows walking around all morning with a rifle. The officers decided to just bust in, instead of knock and announce, they surprise you...
...here's where it gets interesting
this time you dont drop the rifle, you are surprised as you round the corner and see guys with guns in your living room making a commotion... before you have half a second to think about whats happening you shoulder the rifle to defend yourself against what you assume to be an intruder.
the cops shoot you.
thats what happened in the original post scenario, the guy didnt die and he tells the court he shouldnt have been shot because the cops were on a knock and announce warrant but didnt knock and announce.
the position of the police is standing on the "out" that they didnt knock and announce because word on the street is you are armed and when you saw cops you shouldnt have drawn your gun.
obviously a sticky situation