“No-Knock” Warrants and Other Law Enforcement Identification Considerations

“No-Knock” Warrants and Other Law Enforcement Identification Considerations

Legal Sidebari
“No-Knock” Warrants and Other Law
Enforcement Identification Considerations
June 23, 2020
In the wake of protests over the death of George Floyd while in police custody, some Members of
Congress have expressed interest in passing legislation that would alter the policing practices of federal,
state, and local law enforcement officers. One set of practices addressed in recently introduced reform
legislation concerns law enforcement identification. The issue has arisen in at least two recent contexts.
First, reports of federal law enforcement officers responding to protest activity without displaying badges
or other identifying information have prompted questions about whether police may forego such
identification when acting in an official capacity in public. Second, questions have arisen as to when
officers are required to identify themselves before entering a home when executing a search warrant. An
issue of particular focus in this context has been so-cal ed “no-knock” warrants—that is, warrants that
permit law enforcement officers to enter a home without the need to identify their authority and purpose
beforehand. In one case that has received renewed attention, a Louisvil e woman named Breonna Taylor
was shot and kil ed in her home by police during execution of such a warrant.
Given congressional interest and legislation that has recently been introduced on both fronts, this Legal
Sidebar provides an overview of law enforcement identification issues in the context of (1) public
identification and (2) identification prior to execution of a warrant. This Sidebar additional y considers
how several bil s in the 116th Congress could alter practices on both fronts.
Public Identification of Law Enforcement Officers
Overview
According to various reports, certain federal law enforcement officers at recent protests did not wear
badges or nameplates and, in some cases, refused to identify themselves when asked. The presence of
unidentified law enforcement officers has raised the question of when, if ever, police must identify
themselves in public. The answer to that question, however, wil depend on the jurisdiction in which the
officer operates and, potential y, the agency or department at issue. At the federal level, there is no
general y applicable requirement in statute that federal law enforcement officers identify themselves or
display identifying information on their person when acting in public. Additional y, although individual
agencies could have identification requirements through regulation, it appears that most do not. Whether
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and when officers are required to display identifying information or identify themselves upon request is
thus general y governed by internal agency policies, to the extent such policies exist. For instance, with
respect to Bureau of Prisons (BOP) officers who were present at recent protests without identification,
BOP Director Michael Carvajal observed that such officers “normal y operate within the confines of [the]
institution” and thus “don’t need to identify [them]selves.”
At the state and local level, requirements for public law enforcement officer identification vary by
jurisdiction. For example, the State of California has a general statutory requirement that “uniformed
peace officer[s] . . . wear a badge, nameplate, or other device which bears clearly on its face the
identification number or name of the officer,” and the Baltimore Police Department has detailed
requirements for displaying issued badges and furnishing an officer’s “name and badge number to any
person upon request.” That said, while a comprehensive survey is beyond the scope of this Sidebar, some
states or localities may lack identification requirements for their law enforcement officials.
Separate from any express requirements in statute, regulation, or policy, the Fourth Amendment to the
U.S. Constitution may require that an officer publicly identify him or herself as an officer, though not
necessarily provide his or her name or badge number, in certain situations. The Fourth Amendment
requires “searches and seizures” by law enforcement to be reasonable. A “seizure” for purposes of the
Amendment can include a “stop” made “without any physical contact, such as when an officer makes
certain displays of force like pointing a weapon or using language or a tone of voice that indicates
compliance is mandatory.” When a seizure occurs, its reasonableness under the Fourth Amendment wil
depend on the facts and circumstances of the particular case. And one circumstance that may weigh
against the constitutionality of a seizure is where the officer involved is not in uniform and fails to
identify him or herself as law enforcement. One federal appel ate court has pronounced that “it is
general y not a reasonable tactic for plainclothes officers to fail to identify themselves when conducting a
stop.” Nevertheless, because the reasonableness of a seizure is ultimately fact-dependent, failure to
identify might not always be considered unreasonable. As the same court noted, “certain dangerous
circumstances may permit plainclothes officers to initiate stops without identifying themselves, but that is
. . . a rare exception, not the rule.” Regardless, it appears that wearing a uniform or some other display of
law enforcement involvement such as a marked patrol car may be sufficient identification to be
considered reasonable even if there is no verbal identification. And even assuming a constitutional
violation, other judicial doctrines may limit available remedies.
Legislation in the 116th Congress
Recently introduced legislation would impose new identification requirements on federal law
enforcement officers (as wel as members of the armed forces). First, the PEACE Act, one section of the
Justice in Policing Act of 2020 (H.R. 7120), would impose a limited requirement that federal law
enforcement officers identify themselves as officers, among other things, “[w]hen feasible” prior to using
force against any person. Separately, bil s introduced in the House and Senate would require federal
officers “engaged in any form of crowd control, riot control, or arrest or detainment of individuals
engaged in an act of civil disobedience, demonstration, protest, or riot in the United States” to “at al
times display identifying information in a clearly visible fashion,” including the agency, last name, and
badge number of the officer. It thus appears that the latter bil s seek to respond directly to the recent
reports of unidentified federal law enforcement officers policing protests following George Floyd’s death,
as the legislation would only apply to specified activity and would not impose broader identification
requirements. Additional y, because terms such as “crowd control” and “clearly visible fashion” are not
defined, the bil s would appear to give some discretion to individual agencies to determine when the
identification display requirements are applicable and how to comply with them. The bil s might also
raise questions of enforcement, as they do not include a remedy, such as a penalty or other enforcement
mechanism, for failure to comply with the identification provisions.

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Law Enforcement Identification When Executing a Warrant
Overview
As noted above, amid recent cal s for legislative changes to police practices, another area that has
received attention concerns the authority for law enforcement officers to execute a warrant by entering a
home without first seeking consensual entry by announcing themselves and their purpose. As a default,
law enforcement officers must comply with the knock and announce rule— an “ancient” common-law
doctrine, which general y requires officers to knock and announce their presence before entering a home
to execute a search warrant. The Supreme Court has interpreted the Fourth Amendment’s reasonableness
requirement as general y mandating compliance with the knock and announce rule. The knock and
announce rule is also codified in a federal statute, but the Supreme Court has interpreted that statute as
“prohibiting nothing” and “merely [authorizing] officers to damage property [upon entry] in certain
instances.” When officers violate the knock and announce rule, they may be subject to civil lawsuits and
“internal police discipline.” However, in Hudson v. Michigan the Supreme Court curtailed the remedies
available for knock and announce violations by concluding that evidence obtained following such a
violation is not subject to the exclusionary rule, which “prevents the government from using most
evidence gathered in violation of the United States Constitution.”
There are two closely related exceptions to the knock and announce rule, the first of which is for exigent
circumstances. Exigent circumstances are those where the “police have a ‘reasonable suspicion’ that
knocking and announcing would be dangerous, futile, or destructive to the purposes of the investigation.”
Typical examples include instances where police believe that the suspect is armed or likely to destroy
evidence. Exigent circumstances must be based on the “particular circumstances” of each case, and may
not amount to a “blanket exception to the [knock and announce] requirement” for “entire categor[ies] of
criminal activity.” For example, the Supreme Court rejected an assertion that “police officers are never
required to knock and announce their presence when executing a search warrant in a felony drug
investigation.” Instead, “in each case, it is the duty of a court confronted with the question to determine
whether the facts and circumstances of the particular entry justified dispensing with the knock-and-
announce requirement.”
The second exception is for no-knock warrants, which provide explicit authority for judges to grant so-
cal ed “no-knock” entry in the warrant itself, upon a finding of certain factual predicates. The
justifications for no-knock warrants are similar to, and sometimes described interchangeably with, the
concept of exigent circumstances. No-knock warrants, and exigent circumstances, both typical y involve
instances where there is a risk that knocking and announcing would endanger officers or result in the
destruction of evidence. A key distinction between no-knock warrants and no-knock entry pursuant to the
exigent circumstances exception is temporal. With no-knock warrants, officers “have anticipated exigent
circumstances before searching, and have asked for pre-search judicial approval to enter without
knocking.” In contrast, when officers lack a no-knock warrant and enter without knocking due to exigent
circumstances the justification for bypassing knock and announce requirements may arise as late as when
the officers are at the door. A number of states have statutes that authorize magistrate judges to grant no-
knock warrants in certain circumstances. Although a federal statute previously authorized no-knock
warrants for certain drug searches, Congress repealed it. As a result, the legal status of federal no-knock
search warrants is unsettled, although federal officers do sometimes employ no-knock warrants or act
pursuant to no-knock warrants issued by state courts when serving on joint state-federal task forces.
From a Fourth Amendment standpoint, the Supreme Court has indicated some approval of “[t]he practice
of al owing magistrates to issue no-knock warrants . . . when sufficient cause to do so can be
demonstrated ahead of time,” assuming that the practice does not amount to a blanket exception to knock
and announce. However, one unresolved question is whether federal courts have authority to issue no-

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knock warrants in the absence of a statute expressly providing that power, as federal courts “possess only
that power authorized by Constitution and statute . . . .” The DOJ has concluded that federal courts are
authorized to do so, in large part because the federal rule governing search warrants has been broadly
interpreted by courts in other contexts to include specific searches that it does not expressly authorize.
In one sense, the legal vitality of federal no-knock warrants may be of limited practical significance; as
noted, federal law enforcement officers may stil be permitted to enter a home without knocking and
announcing if exigent circumstances are present. However, some courts have concluded that no-knock
warrants shield officers from responsibility for independently assessing the existence of exigent
circumstances at the time of entry. To the extent that is true, no-knock warrants could permit no-knock
entry where the exigent circumstances exception would not—for example, in an instance where the
factors that justified the no-knock warrant are no longer present at the time of entry. Relatedly, if a valid
no-knock warrant provides such a shield against the responsibility of reassessing exigent circumstances at
the time of entry, it could limit the availability of civil lawsuits as a remedy where officers disregard
knock and announce requirements pursuant to a no-knock warrant, but exigent circumstances no longer
exist at the time of entry.
Legislation in the 116th Congress
At least two bil s introduced in the 116th Congress would change the legal landscape regarding
unannounced home entry by law enforcement during execution of search warrants. (A third bil , the
JUSTICE Act, while not directly altering existing practices, would require reporting on the use of no-
knock warrants.) In the House, one section of the Justice in Policing Act of 2020 (H.R. 7120) would
establish that search warrants issued in federal drug cases must “require that a law enforcement officer
execute the search warrant only after providing notice of his or her authority and purpose.” The bil would
also require states and localities that receive certain federal funds to “have in effect a law that prohibits
the issuance of a no-knock warrant in a drug case.”
At least with respect to the requirement for states and localities in H.R. 7120, it appears that unannounced
entry would stil be permitted in exigent circumstances. The bil only requires states and localities to
prohibit the issuance of no-knock warrants in drug cases to receive the specified federal funding, and as
noted above, it is wel -established that law enforcement officers may dispense with the knock-and-
announce requirement when they have reasonable suspicion of exigent circumstances regardless of
whether the warrant authorizes no-knock entry. The more difficult question may be what effect the
requirement for federal drug warrants in H.R. 7120 would have. Under the bil ’s terms, all warrants
authorized in federal drug cases would have to expressly require that they be executed “only after” a law
enforcement officer has provided notice of his or her authority and purpose. As such, were the bil to
become law, it could possibly create tension between the “exigent circumstances” exception to the knock
and announce rule and the required terms of warrants under the new statute. For example, officers might
encounter a situation where knocking and announcing would be “dangerous” or “destructive of the
purposes of the investigation” and thus excused under Supreme Court doctrine, yet the terms of the
warrant would stil expressly require knocking and announcing without exception. In this scenario, the
bil ’s blanket requirement might produce uncertainty as to the officers’ authority. That said, though
warrants would require notice under the proposal, and officers who did not comply with that requirement
would violate the terms of the warrant, it is not clear that no-knock entry in such a circumstance would
lead to consequences like evidence exclusion. In other contexts where warrants have been executed in
ways that exceed the warrants’ terms, some courts have declined to suppress evidence in the absence of
“extreme” violations or “flagrant disregard for the terms” at issue. A court might also interpret H.R. 7120
as implicitly incorporating the exigent circumstances exception. The Supreme Court has taken this view
of the federal statute that codifies the common-law knock-and-announce rule and has observed more
general y that when a magistrate declines to authorize no-knock entry in advance, that decision “should

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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 executed.”
Broader legislation introduced in the Senate (S. 3955) would establish that federal law enforcement
officers “may not execute a warrant” without providing notice of authority and purpose and would
prohibit state and local law enforcement agencies receiving federal funds from executing warrants that do
not “require” the serving officer to provide notice of authority and purpose prior to forcible entry. Because
S. 3955 does not reference exigent circumstances or otherwise delineate exceptions, the bil raises similar
questions as H.R. 7120 regarding its relationship to current knock-and-announce doctrine.

Author Information

Peter G. Berris
Michael A. Foster
Legislative Attorney
Legislative Attorney

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