STATE v. VANLANGENDONCK (2020)

Writ application denied.

An Ascension Parish sheriff's deputy applied for a search warrant for the trailer residence of Mr. Vanlangendonck's co-defendant, Mason Nickens. The deputy also requested—and was granted—advance permission to dispense with the Fourth Amendment's knock-and-announce requirement when executing the search warrant. This is generally known as a “no-knock” warrant. Because, in this case, the deputies executing the warrant did ultimately announce themselves before battering in the door of the subject trailer, the “no-knock” warrant issue is not squarely before us. I therefore concur in the court's writ denial.

However, I write separately to highlight the risk of issuing advance “no-knock” warrants and to remind trial courts of the scrutiny appropriate for authorizing this departure from the Fourth Amendment's requirements.

Our nation has lately been made painfully aware of the risks of police executing “no-knock” search warrants. They pose serious risks to the lives of innocent citizens, like Breonna Taylor in Louisville, Kentucky; and to the lives of law enforcement officers charged with executing them. The language used to request advance “no-knock” permission is often boilerplate. It encourages only cursory review and—once issued—may reduce meaningful retroactive scrutiny of whether the circumstances truly justified law enforcement's departure from the Fourth Amendment.

The Fourth Amendment requires police officers entering a residence to knock on a door and announce their identity and purpose before attempting a forced entry. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). A “no-knock” exception can only be justified if “the police․have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997).

While some illegal narcotics may be susceptible to quick destruction, the Supreme Court has clearly held that there is no blanket exception to the knock-and-announce requirement for cases in which law enforcement suspect illegal narcotics are present in a residence.

If a per se exception were allowed for each category of criminal investigation that included a considerable-albeit hypothetical-risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment's reasonableness requirement would be meaningless.

Thus, the fact that felony drug investigations may frequently present circumstances warranting a “no-knock” entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case.

Id.

The affidavit signed in support of the search warrant in this case contained no explanation of particular circumstances that would give officers such a reasonable suspicion in this instance. It described the contraband sought as two or three pounds of marijuana (specifically “Platinum Bud”, which is dried marijuana plant buds) and multiple vape pens. The applying deputy testified that they had requested a “no-knock” warrant because, “most of the narcotics warrants are dangerous from my training and experience from fifteen years of being in narcotics. Guns and dope is [sic] dangerous. Therefore that is why we choose to do a no-knock.”

More considered neutral scrutiny before issuance of the warrant might have questioned whether defendants could permanently destroy multiple pounds of marijuana-bud and a stock of vape pens in the moments between law enforcement knocking and announcing their identity, and entering the trailer home. If “police․know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly․, the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon by a “no-knock” entry. Richards, 520 U.S. at 393, 117 S.Ct. 1416.

Courts should view with skepticism the generalized characterizations of narcotics equating to danger or likely destruction. Advance “no-knock” authorizations in search warrants should be an aberration, not the norm. We risk the lives of our law enforcement officers and our fellow citizens if judges do not vigilantly guard the standards for “no-knock” warrants. Where issued in advance, “no-knock” warrants should be based on articulable facts specific to the planned search, not a boiler-plate request when officers suspect illegal narcotics.

Johnson, C.J., concurs and assigns reasons. Hughes, J., would grant.