Filed: Jun. 12, 2002
Latest Update: Mar. 03, 2020
Summary: A number of States give magistrate judges the authority to issue, no-knock warrants if the officers demonstrate ahead of time a rea-, sonable suspicion that entry without prior announcement will be, appropriate in a particular context.), (citing United States v. Leon, 468 U.S. 897 (1984);
Authority of Federal Judges and Magistrates to Issue
“No-Knock” Warrants
Federal judges and magistrates may lawfully and constitutionally issue “no-knock” warrants where
circumstances justify a no-knock entry, and federal law enforcement officers may lawfully apply for
such warrants under such circumstances.
Although officers need not take affirmative steps to make an independent re-verification of the
circumstances already recognized by a magistrate in issuing a no-knock warrant, such a warrant does
not entitle officers to disregard reliable information clearly negating the existence of exigent
circumstances when they actually receive such information before execution of the warrant.
June 12, 2002
MEMORANDUM OPINION FOR THE CHIEF COUNSEL
DRUG ENFORCEMENT ADMINISTRATION
This responds to your memorandum seeking this Office’s opinion whether
federal judges and magistrate judges have legal authority to issue so-called “no-
knock” warrants. 1 In addition to considering the information and analysis con-
tained in your memorandum, we have also solicited and received the views of the
Department’s Criminal Division, which has both interest and experience in this
area. 2
After giving full consideration to these submissions, and having reviewed the
pertinent statutes and case law, we conclude that federal district court judges and
magistrates may lawfully and constitutionally issue no-knock warrants—i.e.,
warrants authorizing officers to enter certain premises to execute a warrant without
first knocking or otherwise announcing their presence where circumstances (such
as a known risk of serious harm to the officers or the likelihood that evidence of
crime will be destroyed) justify such an entry. It follows that federal law enforce-
ment officers may lawfully apply for such warrants based on information showing
such circumstances to be present. We further conclude that the issuance of a no-
knock warrant by a neutral magistrate, while not conclusive on the issue, will
generally reinforce the admissibility of evidence obtained through no-knock
entries executed pursuant to such warrants under Leon’s good-faith exception to
the exclusionary rule 3 and by fortifying the objective reasonableness of the police
conduct. Even when authorized by such a no-knock warrant, however, a no-knock
1
See Memorandum for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal
Counsel, from Cynthia R. Ryan, Chief Counsel, Drug Enforcement Administration, Re: Authority of
Federal Judges to Issue “No-Knock” Warrants (Oct. 26, 2001) (“DEA Memorandum”).
2
See Memorandum for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal
Counsel, from Patty Stemler, Chief, Appellate Section, Criminal Division (Dec. 11, 2001) (“CRM
Memorandum”).
3
See United States v. Leon, 468 U.S. 897 (1984).
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Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants
entry might nonetheless violate the Fourth Amendment if the officers have actual
knowledge that the circumstances that justified the no-knock authorization no
longer exist at the time the warrant is executed.
I.
Your inquiry notes that it is the present practice of some United States Attor-
neys’ offices to seek “no-knock” search warrants and recognizes that some federal
magistrate judges issue such warrants. DEA Memorandum, supra note 1, at 2.
Your memorandum also states that components of the Criminal Division have
advised federal prosecutors that it is appropriate to seek no-knock warrants when
the facts supporting a no-knock entry are known to exist at the time the warrant is
sought. Id.; see also CRM Memorandum, supra note 2, at 1 (stating that the
Criminal Division “recommends that we continue to seek such warrants on
appropriate facts”). You also note that various States have enacted statutes that
explicitly authorize judges to issue no-knock warrants, whereas a previous federal
statutory authorization for the issuance of such warrants in controlled substances
cases was repealed in 1974.
You advise that DEA has assisted state and local police in the execution of state
no-knock warrants and that DEA has been requested by a United States Attorney’s
office to participate in the execution of a number of federal no-knock warrants.
You further explain, however, that current DEA policy, as reflected in section
6653.2.C of the DEA Agents Manual, is based on the contrary premise that
“Federal law does not allow for the issuance of a ‘no-knock’ warrant.” DEA
Memorandum at 3. Your memorandum therefore expresses concern regarding the
legal accuracy of DEA’s current policy. You have requested that we address that
concern in this opinion.
In response to our request for its views, the Criminal Division has submitted a
memorandum supporting the legality and constitutionality of no-knock warrants
and recommending “that we continue to seek such warrants on appropriate facts.”
CRM Memorandum at 1. In the Division’s view, the issue presented here “ulti-
mately turns on the following question: Can an issuing magistrate sanction a
constitutional manner of executing a warrant in the absence of a statute or rule that
gives him authority to address the question?” Id. at 5. The Division answers that
question in the affirmative, and further endorses the view expressed by the Eighth
Circuit in United States v. Moore, 956 F.2d 843, 849 n.8 (8th Cir. 1992), that “the
fact that a no-knock entry has been authorized by a neutral magistrate in a warrant
required by statute can hardly be irrelevant to the reasonableness of that entry
under the Fourth Amendment.”
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II.
A.
As recognized in your memorandum, the Fourth Amendment imposes restrict-
ions on the authority of federal law enforcement officers to enter a residence even
when they have a valid search warrant based upon probable cause. As the Fourth
Amendment states:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. In applying the Fourth Amendment, the Supreme Court
has held that, even when they are conducting a search lawfully authorized by a
warrant, officers must generally knock and announce their identity and purpose
before entering a private residence to execute the warrant. See Wilson v. Arkansas,
514 U.S. 927 (1995). The Court has stressed, however, that this general principle
“was never stated as an inflexible rule requiring announcement under all circum-
stances.” Id. at 934. On the contrary, there are well-established exceptions to the
“knock-and-announce” requirement, primarily in situations where exigent
circumstances make it necessary for officers to enter the premises without prior
announcement for reasons of physical safety or in order to prevent the imminent
destruction of evidence or contraband. See id. at 936.
Apart from the Constitution, 18 U.S.C. § 3109 (2000) also addresses certain
aspects of the execution of search warrants by federal officers. That section
provides as follows: “The officer may break open any outer or inner door or
window of a house, or any part of a house, or anything therein, to execute a search
warrant, if, after notice of his authority and purpose, he is refused admittance or
when necessary to liberate himself or a person aiding him in the execution of the
warrant.” Id. (emphasis added). 4 The Supreme Court has made it clear, however,
that the requirements and restrictions of 18 U.S.C. § 3109 are subject to the same
well-recognized exceptions that apply under the Fourth Amendment. See United
States v. Ramirez, 523 U.S. 65 (1998) (holding that section 3109 “includes an
4
Another statute regulating the execution of warrants is 21 U.S.C. § 879 (2000), which provides:
“A search warrant relating to offenses involving controlled substances may be served at any time of the
day or night if the judge or United States magistrate judge issuing the warrant is satisfied that there is
probable cause to believe that grounds exist for the warrant and for its service at such time.” This
statute plainly does not prohibit the issuance of no-knock warrants, but merely provides specific
authorization for judges and magistrates to issue warrants that may be executed at any time of day or
night.
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Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants
exigent circumstances exception” and that the constitutional standard and section
3109’s standard are the same). The Court’s decision in Ramirez also emphasized
that, by its own terms, 18 U.S.C. § 3109 prohibits nothing. It is an authorizing
statute, not one of prohibition. See 523 U.S. at 72.
The general authority for the issuance of search warrants by federal magistrates
and federal district judges is found in Rule 41 of the Federal Rules of Criminal
Procedure. 5 Rule 41 does not address whether, or to what extent, officers must
knock or otherwise announce their presence and purpose before executing a
warrant authorized by the rule. See Fed. R. Crim. P. 41.
Finally, another pertinent factor giving rise to this inquiry is the above-
referenced provision in the DEA Agents Manual, which includes the following
statements:
Federal law does not contain a provision for a “no knock” warrant.
Although some states still issue “no knock” warrants, DEA Agents
need to recognize that such warrants are actually no different than a
normal warrant with respect to the duty to knock and announce. The
duty to knock and announce before entering a residence is a matter
of Federal constitutional law, and the duty can be excused only by
showing that exigent circumstances actually existed at the time of the
search. DEA Agents must not under any circumstances participate in
a search warrant execution that fails to comply with the knock and
announce requirement unless they are aware of specific facts that
demonstrate that their safety will be compromised or evidence will
likely be destroyed if they do not effect an immediate, unannounced
entry to the residence.
DEA Agents Manual § 6653.2.C. This language suggests that DEA agents have an
independent responsibility to evaluate the circumstances existing at the time of
5
Rule 41(a) provides in relevant part:
(a) Authority to Issue Warrant. Upon the request of a federal law enforcement officer
or an attorney for the government, a search warrant authorized by this rule may be
issued (1) by a federal magistrate judge, or a state court of record within the federal
district, for a search of property or for a person within the district and (2) by a federal
magistrate judge for a search of property or for a person either within or outside the
district if the property or person is within the district when the warrant is sought but
might move outside the district before the warrant is executed and (3) in an investiga-
tion of domestic terrorism or international terrorism (as defined in section 2331 of title
18, United States Code), by a Federal magistrate judge in any district in which activi-
ties related to the terrorism may have occurred, for a search of property or for a person
within or outside the district.
Fed. R. Crim. P. 41(a). Although Rule 41(a)’s authorization refers only to “federal magistrate
judge[s],” courts have “uniformly assumed” that the authorization extends to U.S. District Judges as
well. See United States v. Torres, 751 F.2d 875, 878 (7th Cir. 1984).
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Opinions of the Office of Legal Counsel in Volume 26
execution of every warrant to determine whether any emergency exists to justify
entry without knocking. They may not, in other words, simply rely on the issuance
of a no-knock warrant itself, according to the guidance of the Agents Manual.
B.
We first address whether it is constitutionally permissible for courts or magis-
trates to issue no-knock warrants.
The Supreme Court first addressed no-knock warrants in Richards v. Wiscon-
sin, 520 U.S. 385 (1997). There, the Court addressed the legality of a search
conducted pursuant to a warrant (not a no-knock warrant) where the officers
executing the warrant determined that the situation required a no-knock entry. The
Court held that the Fourth Amendment does not permit a “blanket exception” to
the knock-and-announce requirement in the case of all warrants executed in felony
drug investigations. At the same time, the Court upheld the constitutionality of the
particular no-knock entry at issue. More importantly for present purposes, the
Court in dicta specifically expressed its approval of state court magistrates issuing
no-knock warrants when they are authorized to do so under state law. As the Court
explained:
A number of States give magistrate judges the authority to issue
“no-knock” warrants if the officers demonstrate ahead of time a rea-
sonable suspicion that entry without prior announcement will be
appropriate in a particular context. The practice of allowing magis-
trates to issue no-knock warrants seems entirely reasonable when
sufficient cause to do so can be demonstrated ahead of time. But, as
the facts of this case demonstrate, a magistrate’s decision not to
authorize a no-knock entry should not be interpreted to remove the
officers’ authority to exercise independent judgment concerning the
wisdom of a no-knock entry at the time the warrant is being execut-
ed.
Id at 396 n.7 (emphasis added). In holding that the magistrate’s refusal to include
“no-knock” authorization in the warrant did not itself render the officers’ subse-
quent no-knock entry constitutionally unreasonable, the Richards Court empha-
sized that, for Fourth Amendment purposes, “the reasonableness of the officers’
decision . . . must be evaluated as of the time they entered” the premises to be
searched, id. at 395.
Following Richards, there is extensive federal case authority supporting the
constitutionality of the issuance and use of no-knock warrants. In United States v.
Ramirez, for example, the Supreme Court upheld the execution of a no-knock
warrant obtained by federal officers against claims that the executing officers had
violated both the Fourth Amendment and federal statutory restrictions. 523 U.S.
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Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants
at 65. In so holding, the Court gave no suggestion that the issuance and use of the
no-knock warrant was inappropriate or invalid. Numerous other federal cases have
expressly cited and relied upon the above-quoted statement from Richards v.
Wisconsin in upholding the constitutionality and legality of searches conducted
pursuant to no-knock warrants. See, e.g., United States v. Tisdale, 195 F.3d 70, 72
(2d Cir. 1999) (“Richards approved the issuance of no-knock warrants.”); 6 United
States v. Spry, 190 F.3d 829, 833 (7th Cir. 1999) (upholding search conducted
pursuant to no-knock warrant), cert. denied, 528 U.S. 1130 (2000); United States
v. Mattison, 153 F.3d 406, 409 n.1 (7th Cir. 1998) (“A ‘no-knock’ search warrant
allows the police to enter the residence without knocking and announcing their
presence and purpose before entering the residence.”); United States v. Winters,
No. 2:00-CR-590C, 2001 WL 670924 (D. Utah May 9, 2001) (issuance of a no-
knock search warrant did not violate the Fourth Amendment); United States v.
Penman, No. 2:00-CR-192C, 2001 WL 670922 (D. Utah May 3, 2001) (same);
United States v. Mack, 117 F. Supp. 2d 935 (W.D. Mo. 2000) (upholding the
validity of a search performed pursuant to a Missouri no-knock warrant based
upon an affidavit establishing exigent circumstances for the search; the court also
specifically held that the no-knock provision of the search warrant was constitu-
tionally supported by reasonable suspicion). 7
In light of the clear authority in Richards v. Wisconsin and ensuing cases, we
conclude that nothing in the Fourth Amendment prohibits federal magistrates from
issuing, and law enforcement officers from seeking, a no-knock warrant when
there are reasonable grounds to believe that circumstances justifying no-knock
entry will exist at the time the warrant is to be executed.
C.
Although Richards and ensuing cases confirm that the Fourth Amendment
places no constitutional prohibition on no-knock warrants as a general proposition,
they do not specifically address whether federal courts are authorized or permitted
to issue such warrants under the powers assigned to them by federal law. The
precedents discussed above generally involve warrants issued by state courts or
6
In Tisdale, the court also held that, even assuming that the exigent circumstances required for a
no-knock search warrant were not present, the police officers’ reliance on the no-knock provision of the
warrant was not objectively unreasonable, thus precluding suppression of the evidence seized during
the no-knock search. See 195 F.3d at 71.
7
Other federal court decisions recognized the constitutionality of no-knock warrants prior to the
Richards opinion. See, e.g., United States v. Singer, 943 F.2d 758, 759 & n.1 (7th Cir. 1991) (no-knock
warrants held permitted under Wisconsin law because no statute specifically prohibited them).
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magistrates, 8 and do not address whether, or to what extent, federal statutes
authorize or permit the issuance of no-knock warrants by federal magistrates.
1. 18 U.S.C. § 3109. We first consider whether 18 U.S.C. § 3109’s provisions
authorizing officers to “break open any outer or inner door or window of a house”
in executing warrants under certain defined circumstances should be construed to
prohibit (by negative implication) the issuance or use of federal no-knock warrants
in circumstances not encompassed by section 3109. Section 3109 expressly limits
its door-and-window-breaking authorization to circumstances where either (a) the
officers have been refused admittance after announcing their authority and
purpose; or (b) forcible entry is necessary to “liberate” the officers or those
assisting them in the execution of the warrant. We do not believe this statute’s
particularized authorization for officers to break open doors and windows is
properly construed as a prohibition against warrants authorizing no-knock entries.
As the Supreme Court emphasized in United States v. Ramirez, section 3109 “by
its terms prohibits nothing. It merely authorizes officers to damage property in
certain instances.” 523 U.S. at 72. 9 As further held in Ramirez, moreover, to the
extent that section 3109 might be construed to include an implied prohibition or
restriction, it should also be construed as subject to the same “exigent circum-
stance” exceptions applicable with respect to Fourth Amendment restrictions. Id.
at 73. See also United States v.
Tisdale, 195 F.3d at 73 (standards governing
section 3109 and constitutional Fourth Amendment standards are the same). It
follows that since the Fourth Amendment does not bar the issuance and use of no-
knock warrants where exigent circumstances (defined under the standard adopted
in Richards, see 520 U.S. at 394) are established, neither does 18 U.S.C. § 3109.
2. 21 U.S.C. § 879. Both DEA’s and the Criminal Division’s submissions note
that an earlier version of the “24-hour drug search” statute, 21 U.S.C. § 879, had
expressly authorized the issuance and use of warrants authorizing officers to break
open doors and outer windows without prior announcement of authority or
purpose in certain searches for illegal drugs. See Comprehensive Drug Abuse
Prevention and Control Act of 1970, Pub. L. No. 91-513, § 509, 84 Stat. 1236,
1274, previously codified at 21 U.S.C. § 879(b) (1970). However, subsection (b)
of the earlier statute, the portion that expressly authorized issuance of no-knock
warrants and door-breaking authority under enumerated circumstances, was
repealed in 1974 by a Senate amendment to an appropriations bill. See Pub. L. No.
8
In United States v. Ramirez, neither the Supreme Court’s opinion nor that of the Ninth Circuit
specifies whether the warrant issued to the Deputy U.S. Marshal was issued by a federal or state court.
9
The Seventh Circuit made a similar point in United States v. Torres, 751 F.2d 875 (7th Cir. 1984).
In upholding a federal district court’s power to issue a warrant authorizing television surveillance of
terrorist “safehouses” despite the lack of explicit statutory authority to do so, the court observed: “It
does not follow, however, that because Title III does not authorize warrants for television surveillance,
it forbids them. The motto of the Prussian state—that everything which is not permitted is forbidden—
is not a helpful guide to statutory interpretation.” Id. at 880.
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Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants
93-481, § 3, 88 Stat. 1455 (1974). As pointed out in the DEA Memorandum, there
is some indication in the legislative history of this repeal provision that at least its
Senate sponsor intended the repeal to prohibit the issuance of no-knock warrants.
See 120 Cong. Rec. 19,910, 19,911 (1974) (remarks of Sen. Ervin).10
This raises the question whether congressional removal of the special authori-
zation for the execution of certain drug-search warrants contained in former 21
U.S.C. § 879(b) (1970) should be equated with a general prohibition against no-
knock warrants. We reject such an interpretation. Former section 879(b) was a
narrow and carefully framed authorization respecting the execution of search
warrants, limited to offenses involving controlled substances, that included
authority to break open doors and windows under certain described circumstances.
Like 18 U.S.C. § 3109, as recognized by the Supreme Court in Ramirez, section
879(b) was an authorizing statute that by its terms “prohibit[ed] nothing.” 523 U.S.
at 72. Given that fact, and particularly in light of the specialized and restricted
nature of that statutory provision, we do not conclude that its repeal can be equated
with, or construed as, a general statutory prohibition on no-knock search warrants.
Cf. United States v. Torres, 751 F.2d at 880.
The actual issue, instead, is whether an express statutory authorization is even
required for federal magistrates to include constitutionally permitted “no-knock”
provisions in search warrants they are otherwise authorized to issue.
Existing judicial authority does not appear to specifically address this point. In
United States v. Ramirez, for example, the Supreme Court upheld the execution of
a no-knock warrant that was “sought and received” by a Deputy United States
Marshal, see 523 U.S. at 68, but did not address the question of federal statutory
authority for a court to issue such a no-knock warrant. In United States v. Singer,
943 F.2d 758 (7th Cir. 1991), the court upheld the issuance and execution of a no-
knock warrant issued by a state court. Although the court applied federal law
because the case was a federal prosecution, it suggested that no-knock warrants
were permitted under Wisconsin law because no statute prohibited them. Id. at 759
& n.1 (“while the language of the [Wisconsin] statute does not specifically
authorize no-knock warrants, it does not prohibit them either”). There would seem
to be no apparent reason why a different rule of statutory construction would apply
with regard to federal law. Similarly, in United States v. Mack, 117 F. Supp. 2d
935, 941 (W.D. Mo. 2000), the court acknowledged that there was no Missouri
statute expressly authorizing no-knock search warrants. Nonetheless, the court
proceeded to uphold the validity of the no-knock provisions of a search warrant
issued by a Missouri judge on the grounds that it was fully compliant with
10
The House Conference Report on the legislation also stated that it would “repeal the authority of
a judge or magistrate to issue a search warrant (relating to offenses involving controlled substances)
which authorizes, under certain circumstances, an officer to break and enter a building in the execution
of the search warrant without giving notice of his authority and purpose.” H.R. Rep. No. 93-1442, at 4
(1974) (Conf. Rep.), reprinted in 1974 U.S.C.C.A.N. 5974, 5976.
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Missouri law and federal constitutional requirements. Id. at 942-43. As the
Criminal Division points out, however, state courts are divided on the issue of
whether judges or magistrates may issue no-knock warrants without explicit
statutory authority.11
Although we find no federal opinions resolving this precise issue, we conclude
that a federal judge’s or magistrate’s general authority to issue warrants under
Rule 41 of the Federal Rules of Criminal Procedure is sufficiently flexible to
encompass no-knock authorizations. Indeed, there is substantial support in existing
case law for such an understanding of the flexible authority provided by Rule 41.
In United States v. New York Telephone Company, 434 U.S. 159 (1977), the
Supreme Court held that a federal district court had the power to authorize the
installation of pen registers (used to record the numbers dialed on a telephone
without overhearing conversations) even though neither Rule 41(b) nor Title III of
the Omnibus Crime Control and Safe Streets Act of 1968 specifically authorized
such measures. After reciting Rule 41(b)’s express (but limited) authorizations for
the search and seizure of property and contraband, the Court explained:
This authorization is broad enough to encompass a “search”
designed to ascertain the use which is being made of a telephone
suspected of being employed as a means of facilitating a criminal
venture and the “seizure” of evidence which the “search” of the tele-
phone produces. Although Rule 41(h) defines property “to include
documents, books, papers and any other tangible objects,” it does not
restrict or purport to exhaustively enumerate all the items which may
be seized pursuant to Rule 41. Indeed, we recognized in Katz v.
United States, which held that telephone conversations were protect-
ed by the Fourth Amendment, that Rule 41 is not limited to tangible
items but is sufficiently flexible to include within its scope electronic
intrusions authorized upon a finding of probable cause.
Our conclusion that Rule 41 authorizes the use of pen registers
under appropriate circumstances is supported by Fed. Rule Crim.
Proc. 57(b), which provides: “If no procedure is specifically pre-
scribed by rule, the court may proceed in any lawful manner not in-
consistent with these rules or with any applicable statute.”
434 U.S. at 169-70 (citations and footnotes omitted).12
11
Compare State v. Cleveland, 348 N.W.2d 512, 518-19 (Wis. 1984) (no-knock warrants may be
issued without express statutory authority), with State v. Bamber, 630 So. 2d 1048, 1050-51 (Fla. 1994)
(no-knock warrants must be expressly authorized).
12
Rule 57(b), as invoked by the Court in New York Telephone in support of a federal court’s power
to authorize procedures (such as the use of pen registers) not expressly authorized by the applicable
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Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants
A similarly flexible construction of the scope of judicial authority to issue
special warrant provisions was adopted by the Seventh Circuit (per Judge Posner)
in United States v. Torres. In Torres, the court held that a federal district court had
authority to issue a warrant authorizing television surveillance of terrorist
“safehouses” despite the absence of express statutory authority for that procedure
in Rule 41 or federal statutes such as Title III. Noting that Congress’s overhaul of
the federal criminal code in 1948 left the matter of search warrants “to be gov-
erned by rule of court,” the Seventh Circuit stated: “This broad delegation suggests
that Congress views the issuance of federal search warrants as standing on a plane
with other procedural powers that courts traditionally have exercised without
explicit legislative direction.” 751 F.2d at 879. Although the court cautioned that it
“shall not pretend greater certainty than we feel” on the issue, the court concluded
that federal courts may issue warrants for television surveillance and other “new
types of search” without express statutory authorization. Id.
Although the issue is not entirely free from doubt, we believe the foregoing
holdings and principles support the view that express statutory authority is not
required for federal magistrates to issue search warrants authorizing no-knock
entries when the government makes an adequate showing of exigent circumstanc-
es.
D.
Finally, we consider an additional question suggested by your inquiry and by
the provisions of the DEA Agents Manual—namely, to what degree, if any, does
the issuance of a no-knock warrant relieve officers of the necessity of determining
whether the circumstances that justified inclusion of the no-knock provision still
exist at the time of actual execution? As noted above, the DEA Agents Manual
essentially takes the view that the issuance of no-knock warrants has no effect on
an officer’s obligation to knock and announce before execution of a warrant unless
the officer independently determines that circumstances existing at the time of
execution satisfy constitutional prerequisites for an unannounced entry.
In United States v. Singer, 943 F.2d 758 (7th Cir. 1991), where the court upheld
a no-knock entry undertaken pursuant to a state no-knock warrant, the court
framed and addressed this issue as follows:
Singer maintains that the officers’ execution of the warrant was
unconstitutional because the police officers were aware of facts sug-
rule, has been slightly amended since that decision and now provides: “A judge may regulate practice
in any manner consistent with federal law, these rules, and local rules of the district.” Fed. R. Crim. P.
57(b). Rule 57(b) provides further support for federal no-knock warrant authority in that such authority
appears to be “consistent with federal law”—i.e., consistent with the numerous federal court opinions
upholding the constitutionality of no-knock warrants.
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gesting that no exigent circumstances existed to justify their unan-
nounced entry. To support this argument, he makes much of what the
officers did not encounter when they arrived at his home to conduct
the search. . . . As our previous discussion concluded, the officers’
no-knock entry was permissible because Singer’s possession of fire-
arms posed a threat to the safety of the officers. If, during the inter-
vening period between the warrant’s issuance and execution, the
police received reliable information that Singer no longer possessed
any firearms, then they would have been required to reevaluate their
plan to forcibly enter Singer’s home without first knocking and
announcing.
Id. at 763 (emphasis added).13
Although the Singer opinion indicates that the force of a no-knock warrant may
be undercut by the police’s actual receipt of reliable information negating the
existence of exigent circumstances, it does not follow that officers in possession of
such warrants must necessarily and invariably undertake an independent re-
investigation of those circumstances prior to execution of the warrant. Thus, in
United States v. Spry, the Seventh Circuit held that “the district court correctly
determined that the law does not require officers, after obtaining a no-knock
warrant, to make an independent determination of the exigent circumstances at the
time of entry.” 190 F.3d at 833 (emphasis added). Other cases emphasize that
officers are generally entitled to rely on the validity of a warrant authorizing no-
knock entry, including its underlying finding that exigent circumstances exist. See
United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998) (“The matter was
submitted to the judgment of a judicial officer who passed upon facts submitted,
the existence of which has not been questioned. Under these circumstances the
executing officers were clearly entitled to rely on the validity of the warrant.”)
(citing United States v. Leon, 468 U.S. 897 (1984); United States v. Mack,
117
F. Supp. 2d 935, 942 (W.D. Mo. 2000) (observing that “[t]he issuance of a no-
knock search warrant potentially insulates the police against a subsequent finding
that exigent circumstances, as defined by Richards, did not exist”); United States
v. Rivera, No. CRIM. 00-6-B-C, 2000 WL 761976 (D. Me. May 15, 2000) (“The
13
See also State v. Cleveland, 348 N.W.2d at 519, where the court stated:
But such prior authorization is in effect conditional; a magistrate cannot absolutely
authorize no-knock entry. A search warrant may be executed within five days after
issuance. Circumstances which justify noncompliance with the rule of announcement
when the warrant was obtained might change after the judge’s evaluation and before
the officer’s entry. If the warrant authorizes a no-knock entry, officers may forego
announcement unless between the time of the issuance of the warrant and its execu-
tion new information has come to the officers’ attention that would obviate the need to
enter without complying with the rule of announcement.
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Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants
First Circuit has held that when a judicial officer issues a no-knock warrant, Leon
is applicable. See United States v Hawkins, 139 F.3d 29, 32 (1st Cir. 1998).
Specifically, the Court will not exclude evidence discovered pursuant to a no-
knock warrant if the executing officers are objectively reasonable in their reliance
on such a warrant, even if the judicial officer should have required a more
particularized showing of exigent circumstances.”).
Although it might be argued that there is some tension between the above-
quoted holdings in Singer (a no-knock warrant’s authority can be vitiated by the
officers’ intervening receipt of reliable information that the factual basis for
exigent circumstances no longer exists) and Spry (officers are not obligated to
make an independent determination of exigent circumstances when they execute a
no-knock warrant), we think the decisions are easily reconcilable and that the
distinctions drawn by the cases are reasonably clear. Although officers need not
take affirmative steps to make an independent re-verification of the circumstances
already recognized by a magistrate in issuing a no-knock warrant, such a warrant
does not entitle officers to disregard reliable information clearly negating the
existence of exigent circumstances when they actually receive such information
before execution of the warrant.14
PATRICK F. PHILBIN
Deputy Assistant Attorney General
Office of Legal Counsel
14
Our conclusion is consistent with the Supreme Court’s observations in Leon regarding an
officer’s permissible reliance on a magistrate’s determination of probable cause when executing a
search warrant. As the Court stated: “In the ordinary case, an officer cannot be expected to question the
magistrate’s probable cause determination . . . . ‘[O]nce the warrant issues, there is literally nothing
more the policeman can do in seeking to comply with the law.’” 468 U.S. at 921 (quoting Stone v.
Powell, 428 U.S. 465, 498 (1976)). The Court added, however, that the officer’s reliance on the
magistrate’s probable cause determination must be “objectively reasonable” for purposes of the good-
faith exception to the exclusionary rule. Id. at 922.
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