Knock and Announce Case Analysis

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The Seventh Circuit has long suggested in dicta that exclusion of evidence is not required for violations of the knock-and-announce rule, but until now, it has been merely that — dicta.

In U.S. v. Espinoza, 256 F.3d 718 (7th Cir. 2001), for example, the court held that suppression was not required, where the police did knock, but waited too short a period of time before forcible entry.

The court concluded that, based on Espinoza’s actions during the period between knocking and entering, waiting longer would have been futile. The court also concluded that suppression was a disproportionate remedy for the constitutional violation.

However, the court specifically declined to make the holding it did here — that the exclusionary rule is inapplicable to all violations of the knock-and-announce rule.

That holding creates a conflict between the federal circuits that the United States Supreme Court will likely need to resolve.

The Ninth, Sixth, and Eighth Circuits have all held that evidence obtained after a violation of the knock-and-announce rule must be suppressed. United States v. Banks, 282 F.3d 699 (9th Cir. 2002); United States v. Dice, 200 F.3d 978 (6th Cir. 2000); and United States v. Marts, 986 F.2d 1216 (8th Cir. 1993).

In Banks, the Justice Department has petitioned for certiorari, and the decision in this case provides a significant incentive for the court to grant the petition that did not exist before.

Should the Supreme Court accept review, it likely will need to address fundamental questions about the nature of the "inevitable discovery" doctrine and the "independent source" doctrine.

The court has previously stated, "The inevitable discovery doctrine … is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." Murray v. U.S., 487 U.S. 533, 539, 108 S.Ct. 2529, 2534 (1988).

	Links Seventh Circuit Court of Appeals Related Article Suppression not remedy when rule violated

Whether or not police comply with the knock-and-announce rule, the evidence inevitably would be discovered, as the Seventh Circuit correctly observed in this case.

However, there is no independent source through which it would have been discovered; there is only the one unlawful search. As Judge Diane P. Wood observed in her dissent in Espinoza, the independent source doctrine requires a lawful search independent from the unlawful one. Espinoza, 256 F.3d at 730-733.

If the inevitable discovery doctrine is in fact entirely a derivative of the independent source doctrine, as noted by the Supreme Court in Murray, and Judge Woods in Espinoza, then the Seventh Circuit’s reasoning in this case is erroneous and the holding must be reversed.

– David Ziemer

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David Ziemer can be reached by email.