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E-Bulletin -
2008
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APPELLATE COURT RULES FIFTEEN TO TWENTY SECONDS CAN BE REASONABLE WAIT TIME BETWEEN “KNOCK AND ANNOUNCE” AND ENTRY TO EXECUTE SEARCH WARRANT
The Appellate Division of New Jersey has ruled, in State v. Rodriguez, that the Fourth Amendment’s requirement that police wait a reasonable period of time after “knocking and announcing” their presence was satisfied by a fifteen to twenty second wait before entering a premises to execute a search warrant. However, law enforcement officials should not view fifteen to twenty seconds as magic numbers: the determination of what constitutes a “reasonable wait time” may still depend upon the particular circumstances of each search.
In Rodriguez, officers of the Elizabeth Police Department arrived at approximately 8:00 a.m. to execute a search warrant for controlled dangerous substances and related materials in a two-bedroom apartment. Officer Lawrence Smith knocked three times on the apartment door and waited approximately ten to fifteen seconds, with no response from the occupants. Officer Smith then knocked three more times, this time yelling “Police, search warrant”.
After waiting another fifteen or twenty seconds, and still receiving no response from inside the apartment, the police entered through the door, which was unlocked. Officer Smith yelled “Police” at least three more times as he and the other officers entered the apartment.
Once inside, the officers searched the apartment and found CDS in the bedroom, near the bed where Hiram Rodriguez was found. Mr. Rodriguez was charged with multiple drug offenses and eventually pled guilty to third-degree possession of CDS with the intent to distribute within one thousand feet of school property. He received a three-year prison term.
Before Mr. Rodriguez pled guilty, he made an unsuccessful attempt to have the CDS suppressed as evidence. One of Mr. Rodriguez’s arguments on appeal was that the police had failed to wait a reasonable time between announcing their presence and entering the apartment.
In rejecting Mr. Rodriguez’s argument, the Appellate Division noted that the United States Supreme Court had established, in United States v. Banks, that law enforcement officials must comply with a “reasonable wait time” when executing a “knock and announce” search warrant. The Supreme Court has recognized that this standard is “necessarily vague” and what may be reasonable can depend upon the particular circumstances at the time when the police are executing the search warrant.
The Rodriguez court found that the determination of what was a “reasonable wait time” depended not only upon how long it might take to dispose of the suspected drugs, but also how long it might take the occupants to reach the door.
Because one purpose of the “knock and announce” rule is to prevent the physical destruction of property, such as the door itself, the Rodriguez court held that circumstances such as the time of day and the size of the premises should be considered by police in determining the “reasonable wait time” before entering a premises.
A “reasonable wait time” could be longer than fifteen to twenty seconds if the search warrant is executed when it is reasonable to assume that the occupants of the premises are sleeping.
Police must also consider the size of the premises. Officers may have to wait a longer period of time before entering a larger premises, such as a multi-story home, than they would if they were entering a two-bedroom apartment. Conversely, officers may only need to wait for a shorter period of time if they are entering a smaller premises, such as a hotel room.
The Rodriguez court concluded that the fifteen to twenty second wait from the knock and announcement by police, although “close to or at the limit of what constitutes a reasonable wait time in these circumstances” was reasonable, especially when considered with the fact that the police had previously knocked, although without announcing their presence, and waited for a response.
While the Appellate Division did not set a specific time period as constituting a “reasonable wait time”, the Rodriguez decision at least offers law enforcement officials some guidance as how to comply with the “knock and announce” rule, whose “application is not always clear and its breach not always easily ascertained”.
If you are a law enforcement official or the risk manager for a police department or municipality, please do not hesitate to contact Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, P.C. We would be glad to further discuss the ramifications of this significant decision with you.
Andrew W. Li, Esq. is an associate of GRSLL&B in the firm’s CIVIL RIGHTS LITIGATION GROUP. He practices in the areas of Public Entity (Title 59) Litigation, Federal Civil Rights (42 U.S.C. 1983) Litigation, Law Against Discrimination - Public Accommodations Litigation, and NJ Civil Rights Act Litigation.
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