An Emory University criminal law professor said empirical evidence shows judges are not extensively reviewing requests for search warrants before approving them.
The practice raises a larger question about no-knock and nighttime warrants that often lead to a blind spot for law enforcement officers and subjects, Professor Kay Levine said.
“When we see shootouts happen, and some innocent person ends up dead caught in the crossfire, we start to wonder if magistrates are granting no-knock warrants without giving enough thought to this,” Levine said.
The death of Breonna Taylor, the 26-year-old EMT killed by Louisville police in March, has created a nationwide push to stop no-knock warrants. The Atlanta City Council unanimously passed a resolution last week that urges the Georgia General Assembly to issue the ban.
“I mean Breanna Taylor is another example of why we should be banning no-knock warrants,” Atlanta City Council member Antonio Brown said. “Not just at a federal level but at a state and local level. It’s super important just to the progression of reimagining public safety as a whole.”
Taylor was killed while the Louisville Police Metro Department was executing a no-knock warrant in her home. According to reports, a judge granted the warrant as part of a drug investigation that included Taylor’s ex-boyfriend. Taylor allegedly was shot multiple times after her current boyfriend, Kenneth Walker, shot at police. Walker told officials they heard loud banging on the door and thought it was Taylor’s ex-boyfriend.
Louisville since has banned no-knock warrants, and the city settled a wrongful death lawsuit with Taylor’s family Tuesday for $12 million.
Atlanta also has had an ill-fated no-knock warrant execution. Three Atlanta Police officers faced prison time after Kathryn Johnston, a 92-year-old Atlanta woman, was killed after opening fire on plainclothes officers who raided her home under a no-knock warrant in 2006. Investigators determined the warrant was based on falsified paperwork.
A group of House Democrats in Georgia proposed legislation in June banning no-knock warrants, but one of the bill’s sponsors, Minority Leader Bob Trammell, D-Luthersville, said the pandemic overshadowed it.
“No-knock warrants are inherently unreasonable under the Constitution, and we need better laws to place guardrails to make sure that citizens don’t lose life or property as the result of those,” Trammell said.
Americans have the right to be “secure in their persons, houses, papers, and effects” from “unreasonable searches and seizures” “without probable cause,” the Fourth Amendment of the U.S. Constitution states. In 1967, the Supreme Court ruled in Katz vs. the United States that searches without a warrant are “per se unreasonable.”
Levine said search warrants allow police officers to search in places protected under the Fourth Amendment. Some can argue it also covers places where there is a reasonable expectation of privacy.
Officers must present information that points to criminal activity to a judge who issues the warrant and determines how it will be used, she said.
Terry Norris, executive director of the Georgia Sheriffs’ Association, said officers must include details on the location they plan to search, including identifying people on the premises. No-knock warrants are not issued often in Georgia, he said.
“There are exigent situations and circumstances that require those kinds of entries for the safety of the officers and the safety of those inside,” he said.
No-knock warrants also are issued usually to preserve evidence, Norris said. However, Levine questions the need for special warrants in those situations, when the element of surprise can increase the risks of danger.
“You catch people off guard inside their houses,” Levine said. “They don’t know that it’s the police and the police aren’t announcing themselves. The first thing they’ll do is grab a shotgun that’s under their bed and start shooting.”
Levine said research shows most people support special warrants like no-knock and nighttime warrants for severe crimes, but for less serious crimes such as drug offenses, they seem “oppressive.”
There is not a large amount of empirical data on judicial review of search warrants. Still, Levine said the work out there does not “inspire a lot of confidence about how carefully and cautiously magistrates are reviewing warrant applications.”
“There is a very common perception, and it is empirically supported that magistrates take about two or three minutes to review warrant applications before signing off,” Levine said.
Norris said judges commonly issue warrants fast, especially for critical situations, when a no-knock warrant is needed. Although the sheriffs’ association opposes banning the warrants, Norris said he is willing to work with legislators to change the law to specify what judges should be looking for before issuing them and including law enforcement supervisors in the process more.