Justifying a No-Knock Entry

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Geiger v. Sloan, 780 Fed. Appx. 150 (5th Cir. 2019)

An officer prepared an affidavit for a no-knock search warrant at Ricky Keeton’s trailer home. The officer had been investigating Keeton for approximately one year. One night, the officer saw an informant drive away from Keeton’s trailer. Officers stopped the informant and found methamphetamine and a pipe in his car. The informant told the officers he had just purchased methamphetamine from Keeton and Keeton had a large amount of methamphetamine and $20,000 in cash in the trailer.

The officer obtained a warrant and assembled a SWAT team. The SWAT team intended to use a battering ram and pry bar on the back door of the trailer. The officers also breached the sewer line in order to capture anything flushed down the toilet in the trailer. Before the team could attempt entry, Keeton woke up. He told his girlfriend he heard noise and grabbed a pellet gun before going out to investigate. When Keeton heard the ram hit the back door, he went to the door. The door opened about two feet and quickly closed.

The primary officer gave conflicting statements about Keeton’s actions after the door opened slightly. Nonetheless, the SWAT officers fired approximately 50 bullets at Keeton, striking him six times and killing him. A subsequent search revealed 9 ounces of methamphetamine, but not the cash alleged to be in the trailer.

Keeton’s heirs sued, alleging the search was unreasonable and the officers used excessive force to execute the warrant. The trial court denied qualified immunity for the officers and the agency. The appellate court upheld the denial of qualified immunity and ordered the matter to proceed to trial.

In Richards, the Supreme Court held officers “must 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.”

The court’s opinion recites critical factors for officers who request and serve a no-knock warrant. The court began by reminding officers there is no blanket authority for a no-knock warrant when the warrant is drug-related, citing the Supreme Court decision in Richards v. Wisconsin (520 U.S. 385 (1997)). It was questionable whether the warrant even authorized a no-knock execution. Though the officer mentioned no-knock authorization in the affidavit, nothing in the warrant plainly authorized entry without notice. Presumably, the same officer prepared both documents.

In Richards, the Supreme Court held officers “must 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.” The Court instructed lower courts to examine the circumstances of the individual case, not a particular category of alleged crimes. In this case, the court noted the warrant and the affidavit failed to state how giving Keeton notice before executing the warrant “would create any danger, futility, or risk of inhibiting the investigation.”

The affidavit did assert Keeton had dogs and surveillance cameras, but the court observed the breach of the sewer line and the capture of the downstream flow from the toilet mitigated the risk of destruction of evidence. The investigating officer later stated the informant told an officer, who told another officer, who told the investigating officer Keeton had guns. However, the informant testified he never mentioned guns to any officer. Neither the affidavit nor the warrant mentioned any guns.

The court also pointed to critical contradictions in the investigating officer’s various statements about whether he saw Keeton with a gun and disputed evidence concerning whether all the bullets were fired through the closed door and walls of the trailer. The court noted other contradictions in statements by other involved officers. The substantial defects in the affidavit and the warrant related to no-knock authorization, combined with the contradictory testimony, meant the court could not find—on the basis of the record before it—the officers could have reasonably believed Keeton posed a threat of serious harm.

Critical lessons from this case: First, carefully state the reasonable suspicion that providing notice would permit the destruction of evidence (and why alternative means of preventing the destruction are not reasonable), and/or why providing notice would endanger the officers or others. Second, ensure the stated basis for a no-knock entry is included in both the affidavit and the warrant. A best practice is to ask a prosecutor or department legal advisor to review both documents for legal sufficiency and consistency. At the very least, ask an experienced investigator to proofread the affidavit and warrant.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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