The police practice of executing no knock search warrants came under criticism last year with the botched case of 18 month old Bou Bou Phonesavanh. Officers executing the warrant late in the evening had hoped to find drugs or weapons, but they found neither, nor did they locate a drug dealer. Upon entering the house, the officers deployed a flash bang grenade in order to distract the home’s occupants. The grenade landed in a crib holding the baby and exploded, injuring Bou Bou, which led to expensive medical treatment that the family could ill afford.
At present in Georgia, the use of no-knock warrants is lightly regulated, if at all. In order to receive a search warrant, an officer must go before a judge and swear an oath explaining the probable cause for needing the warrant. And in practice, officers can request that they can execute the warrant without knocking on the door and identifying themselves first. While meant to be used sparingly, judges in some jurisdictions reportedly issue no-knock warrants up to 80% of the time.
To address this issue, Dawsonville Republican Rep. Kevin Tanner wrote House Bill 56 in order to codify the use of no knock warrants and provide a method of monitoring their use. The bill specifically defines a no knock warrant, and sets up several conditions that must be satisfied before one can be issued. Under the bill, in order for a judge to issue a no knock warrant to an officer, the warrant request would have to have been reviewed by that officer’s supervising officer, who then must accompany the first officer in the warrant’s execution. Except for good cause, the no knock warrant must be executed between 6 AM and 10 PM, and the applying officer must testify that knocking and announcing the police presence would cause an imminent danger to life or the destruction of evidence.
In addition, any law enforcement agency that uses no knock warrants must develop written policies for their use that can be examined by the general public. The bill also requires each judge who issues any type of search warrant to produce a monthly report detailing the number of warrants issued and the number of no knock warrants requested and executed.
Rep. Tanner’s bill is designed to bring some regulation and transparency to the practice of issuing no-knock warrants. Yet, there is a vocal group that stands in opposition to the proposed legislation. Much of their opposition stems from the belief that no knock warrants are currently illegal in Georgia, and that the U.S. Constitution’s Fourth Amendment protects citizens from unreasonable searches, which they contend includes no knock warrants.
And indeed, Georgia Code Section 17-5-27 plainly states that an officer executing a search warrant can force entry “after verbal notice or an attempt in good faith to give verbal notice by the officer.” The reason that Georgia judges routinely issue no knock search warrants is that numerous courts up to and including the U.S. Supreme Court have issued judicial opinions that no knock warrants do not violate the fourth amendment, and in fact can be issued if a judge approves.
Another concern is that by formally legalizing no knock warrants, the officers executing them will be immune to penalties should things go wrong as they did in the Bou Bou case, or in the case of Kathryn Johnston, an Atlanta resident who was killed during the execution of a no knock warrant at the wrong house. That’s not true, according to Gwinnett County District Attorney Danny Porter. The actions of officers during the execution of a warrant, with or without the no knock provision, are subject to investigation by a district attorney, the GBI and the FBI, and can result in charges ranging from disciplinary action up to murder. That’s what happened in the Johnston case. And, Porter points out, if the procedures specified in House Bill 56 had been in effect last summer, the officers seeing the no knock warrant that ultimately led to the injury of Bou Bou would likely not have been issued at all.
One of the people campaigning heavily against Tanner’s bill is former State House District 22 Rep. Sam Moore. Last year, Moore sponsored House Bill 1046, which would have allowed someone who had been served a no knock warrant to shoot the police officer executing it.
No one likes it when something goes wrong during the execution of a search warrant, or for that matter any time police officers are doing their duty. And, if it’s at all possible, law enforcement officers should announce their presence. Rep. Tanner’s bill provides guidelines for approval and execution of warrants that should limit their improper use. It also requires that the use of warrants be monitored and reported so the public can decide if a judge is authorizing too many of them, information that can be used when the judge is up for re-election. And it provides the legislature with information they can use in the future to further refine the use of no knocks.
On its website, the American Civil Liberties Union of Georgia calls itself “a nonpartisan, non-profit organization that seeks to defend the principles and freedoms embodied in the Bill of Rights.” And they offered their support for Rep. Tanner’s bill in a statement to Peach Pundit.
The ACLU of GA welcomes HB 56 and the limitations it places on no-knock search warrants. The bill would establish a high burden of probable cause before judges can issue these warrants, and places substantial limitations on how law enforcement subsequently executes them. It also would require extensive reporting from judges who issue no-knocks. Georgia case law, if not the Code itself, has long authorized these kinds of warrants – and, short of legislative override, this likely will not change. What can change is how these warrants are issued and executed. To that end, we thank Rep. Tanner for introducing this carefully crafted legislation, which will go a long way to regulating this practice.
Rep. Tanner’s bill has had several hearings by the Judiciary-Non Civil Committee, but has yet to receive a do-pass recommendation. In the Senate, Republican Jesse Stone of Waynesboro has sponsored a similar measure as Senate Bill 159, albeit without the reporting requirement in the House bill. That bill was scheduled for a hearing on Wednesday that got canceled due to bad weather.
Time will tell if either bill gets a vote in its respective chamber, or if pressure from those opposing any type of no knock warrant as a constitutional infringement will win the debate.