Here's what we got: Officers receive information that a fugitive (3 felony warrants) is asleep in a house this morning. Without announcing their presence to the home (as required by Art 15.25, CCP), they kick in the door and arrest him in bed.

Their justification for the action was the information they received from a confidential informant was that the fugitive was heavily armed.

I think that the officers should have applied for a 'no-knock' warrant from the district judge. The informant provided enough credible evidence for a search warrant to enter the home and seize the fugitive and certainly had credible evidence that would have led to a reasonable request for a no-knock.

My question is: are we going to get dumped on a suppression of the arrest? What is the collateral effect of the improper arrest on the 3 felony charges? I know that had we found contraband at the scene during the entry, we'd be hosed on the prosecution of any crime there discovered, but what about the underlying cases which gave rise to the warrants in the first place?

You don't have to obtain a no-knock warrant to justify a no-knock entrance. At the hearing on the motion to suppress, you can still justify the no-knock entry by articulating the officer's factual basis.

Even if the no-knock entry was unlawful, that doesn't mean the evidence should be suppressed. I have a hard time understanding how the result of a probable-cause based search or seizure should ever result in the suppress of evidence. The damage to the door and the discovery of evidence are not related. Either way, an entry was going to be made.

It's not like the defendant can argue that he should have an opportunity to destroy the evidence.

Thanks. I just got off the phone with the investigator and he added the following to the story:

They apparently knocked and announced, but they didn't wait long at all. Defendant and others were asleep in the home; no one woke up to answer the door.

So then the question is reduced to how long must the officers wait to take the non-response as a refusal to admit entry under 15.25?

This is not a suppression issue. As long as the defendant was arrested under a valid arrest warrant, the arrest is okay. You don't suppress people, only evidence. Was any evidence seized when the defendant was arrested? Plus, the arrest warrant would attenuate any taint from an illegal entry.

Now, your officers may have to pay for the door, and might have some greater difficulty if sued by the homeowner since they did not have the legal right to enter the home (maybe).

Look at U.S. v. Banks, 124 S.Ct. 521 (2003)(on the subject of knock and announce rule) and at Benitez v. State, 2004 Tex. App. LEXIS 5733 (Tex. App. - San Antonio June 30, 2004, no pet. h.) (approving a 5 to 10 second delay between knock and entry).

Thank you.

Also check out Flores v. State out of the First Court of Appeals (NO. 01-03-00910-CR, NO. 01-03-00911-CR, NO. 01-03-00912-CR), released yesterday. The warrant did not specifically authorize a no knock entry. The officers claimed they knocked; the defendant said they didn't. The court found that it didn't matter because even though warrant didn't specifically authorize a no knock entry, the officers had sufficient basis to believe the suspect was armed and dangerous. The facts sound like your facts.

Janette

I never saw any information on the arrestee's relationship to the house. If he had no reasonable expectation of privacy then you have no problem with suppression. If the house belongs to a thrd party you might want to see Hudson 662 SW2d 957,and Steagald 451 US 204. All the cases I found dealt with entry of A's house to serve an arrest warrant for B, where the officers incidently found contraband belonging to A. A had the remedy of suppression but B was out of luck. As John points out, if the totality of the circumstances at the door support a failure to knock and announce then it makes no difference whether the warrant was a no-knock or not. We continue to see officers writing and Judges signing "no-knock" warrants based upon nothing more than conclusory, boilerplate assertions that "in this officer's experience drug dealers are known to keep weapons to protect their drugs." No specific, particularized facts for the subject or location to be arrested or searched.

[This message was edited by BLeonard on 01-09-05 at .]