No-Knock warrants and Kentuckys new No Duty to Retreat Self-Defense statutes are a dangerous combination.

   In November two cases were in the national news involving situations where police shot and killed people they were trying to arrest.  In both cases the issue of whether the person whom the police were attempting to arrest were adequately advised that the person confronting them was a police office.

   In one case the police had obtained a No-Knock search warrant and broke down the door of a 90 year old woman.  When the police broke down her door she  responded with gunfire.  The police returned her fire and killed the woman.  The police were acting on a tip that a man at that residence had previously sold drugs there.  There is no evidence that the old woman had a man living at the house or had ever sold drugs.

   In New York City undercover officers confronted a man who was attending his bachelor party before his scheduled wedding later in the day.  They police claim they had heard someone in the mans group make a comment that they had a gun in their possession.  The police killed the groom to be and in the process fired 50 shots.  The men attacked by the police were found to be unarmed.

   Both cases when viewed under a new statute adopted by the 2006 session of the Ky. Legislature may place police in danger of being legally shot when attempting to enter a home or effect an arrest if they have not clearly identified themselves as police officers.
See: KRS 503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle –Exceptions.  and KRS 503.050 Use of physical force in self-protection

The United States Supreme Court held long held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. . Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995)

A number of exceptions to the duty to Knock and Announce has been discussed in Ky. rulings.  See Adcock v. Commonwealth below.   Another recent case by the Ky. Supreme Court limited the use of police ruses to gain entry without a warrant.  See: Krause v. Commonwealth.

    The new versions of KRS 503.055 and KRS 503.055 were adopted to give homeowners and occupiers of motor vehicles the right to use deadly force against
“attacks? on the occupant.  

So we find that while the police are granted the right to break down a door and then announce that they are police in certain types of cases, we have the legislature giving more rights to citizens to use deadly force against intruders.

The key to these cases is the proper identification of the police officer as a police officer.
The use of non-uniformed undercover officers to effect the No Knock warrants, or to attempt to stop a motor vehicle has become a highly dangerous enterprise for both the policeman and the citizen who can now fire away without having to try to withdraw.

It is commonplace in such cases that the police claim they announced they were police, but the citizen never heard the announcement or was to frightened by the breaking down of their door to properly evaluate that announcement.

 We would submit that the use of No Knock warrants should only be effected by uniformed officers, and they should make a very serious commitment to their duty to announce who they are…if for no other reason than for their own safety.

It remains the duty of the reviewing court to determine the reasonableness of the No Knock entry.   See: Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 1421-1422, 137 L. Ed. 2d 615 (1997). The Court in Richards  noted,  that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.” Id.
KNOCK AND ANNOUNCE RULE DISCUSSED:

Adcock v. Commonwealth of Kentucky, 967 S.W. 2000 (KY, 1998)
 
Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S. Ct. at 1918. The knock and announce rule has three purposes:
(1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and
(3) to protect people from unnecessary intrusion into their private activities. Id.

[22]     However, “that is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Id. at 934, 115 S. Ct. at 1918. The Wilson court left “to the lower courts the task of determining the circumstances under which an unannounced entry, under the Fourth Amendment, is reasonable.” Wilson, 514 U.S. at 936, 115 S. Ct. at 1919.

[23]     The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. “In order to justify a no-knock entry, the police 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.” Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 1421-1422, 137 L. Ed. 2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.” Id.

[24]     Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.

[25]     A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis. 2d 110, 492 N.W.2d 627 (Wis. 1992), cert. denied, 507 U.S. 977, 122 L. Ed. 2d 796, 113 S. Ct. 1428 (1993), overruled on other grounds by State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (Wis. 1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced “police, search warrant.” As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the officer did, in fact, announce his presence and purpose before entering the defendant’s residence. 492 N.W.2d at 630. Furthermore, the court held that the use of the ruse to entice the defendant to open the door in the execution of a search warrant did not violate the Fourth Amendment or the knock and announce rule because “the reasons behind the rule were satisfied — there was no real likelihood of violence, no unwarranted intrusion on privacy, and no damage to the [defendant's residence].” Moss, 492 N.W.2d at 631; see also Wilson, supra, and Commonwealth v. Goggin, 412 Mass. 200, 587 N.E.2d 785 (Mass. 1992).
[26]     In fact, notwithstanding the presence of exigent circumstances, federal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry obtained through the use of deception, accomplished without force, is not a “breaking” requiring officers to first announce their authority and purpose.

United States v. Salter, 815 F.2d 1150 (7th Cir. 1987); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir. 1993); Hawaii v. Dixon, 83 Haw. 13, 924 P.2d 181 (Hawaii 1996); State v. Myers, 102 Wash. 2d 548, 689 P.2d 38 (Wash. 1984); Commonwealth v. DeCaro, 298 Pa. Super. 32, 444 A.2d 160 (Pa. Super. Ct. 1982); State v. Iverson, 272 N.W.2d *fn1 (Iowa 1978).
… In other words, an entry accomplished without force is not a “breaking” within the meaning of the majority of state statutes, as well as 18 U.S.C. § 3109, and therefore does not implicate the knock and announce rule. “The employment of a ruse to obtain the full opening of the [defendant's] door was not a “breaking.” And since the door was then wide open, the subsequent entry . . . did not involve a ‘breaking’ of the door.” Dixon, 924 P.2d at 187. (quoting Dickey v. United States, 332 F.2d 773 (9th Cir. 1964)).
Ky. Supreme Court rules that Police Lie to gain entrance to residence violated 4th. Amendment.

In a decision that was dissented to by Justices Roach and Wintersheimer, the Ky. Supreme Court established a principal that the police ruses, which have been often approved by the court, can go to far when it effects a coerced consent to search.

TO BE PUBLISHED

2004-SC-001009-DG.pdf
click to read full text

FREDERICK CARL KRAUSE III
APPELLANT
APPEAL FROM COURT OF APPEALS
V.
03-CA-2092-MR
MCCRACKEN CIRCUIT NO . 03-CR-00162-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
Reversing and  Remanding,
 
“the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ."

Appellant, Frederick Carl Krause, III, entered conditional guilty pleas in McCracken Circuit Court to First Degree Possession of a Controlled Substance,
Cocaine ; Use/Possession of Drug Paraphernalia, Second Offense; and Possession of Marijuana. For these crimes, Appellant was sentenced to three days' imprisonment and two and one-half (2'/2) years of probation ....we reverse the Court of Appeals' opinion, vacate  Appellant's convictions and sentence, and remand for further proceedings.

When one of the residents, most likely Appellant, opened the door, Trooper Manar stated that a young
girl had just reported being raped by Yamada in the residence. He asked if he could look around in order to determine whether her description of the residence and its furnishings was accurate.

 The trial court found that Trooper Manar "knew there would be no such evidence because he knew there was no assault. His intention was to gain consent to search for drugs."

Despite finding that "the ruse employed [by Trooper Manar] raises serious Constitutional rights questions and is not an appropriate police practice,” the trial court
ultimately concluded “that Defendants voluntarily consented to a search for evidence of an assault.”

On appeal to this Court, the sole issue for our consideration is whether the consent given by Appellant and his roommate was constitutionally valid. In Cook v.
Commonwealth, 826 S.W.2d 329 (Ky. 1992), this Court stated that “consent is one of the exceptions to the requirement for a warrant.” Id. at 331 (citing United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L .Ed .2d 598 (1976)).

We further indicated that the “test for determining if consent is constitutional is set out in Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S .Ct. 2041, 36 L.Ed.2d 854 (1973).” Id .
In Schneckloth, supra, the Supreme Court held that “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means . . .[fjor, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed ." Id. at 228, 93 S .Ct . at 2048. Whether consent is the result of express or implied coercion is a question of fact, id, at 227, 93 S.Ct. at 2048, and thus, we must defer to the trial court's finding if it is supported by substantial evidence. RCr 9.78 .

The ruse in this instance was employed for the purpose of gaining consent (1) to make a warrantless entry into a home ; and (2) to conduct a plain view warrantless
search of the residence. Thus, the underlying purpose and policies in this case differ from the purpose and policies in the Adcock case. The guiding factor here is to determine whether this particular ruse frustrated the purpose of the constitutional requirement that consent to make a warrantless entry into and search of a home must be voluntary, and thus, free of implied or express coercion .

Finally, we believe that if the type of ruse utilized by Trooper Manar was sanctioned by this Court, citizens would be discouraged from "aiding to the utmost of
their ability in the apprehension of criminals" since they would have no way of knowing whether their assistance was being called upon for the public good or for the purpose of incriminating them. Schneckloth, supra, at 243, 93 S.Ct. at 2056 (internal quotation
omitted).

Moreover, widespread use of this type of tactic could quickly undermine "the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness." Id. at 225, 93 S.Ct. at 2046.

We are careful to note that our holding is limited and narrow. We do not hold that the use of ruses, in general, is unconstitutional . The United States Supreme Court has long held that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States , 287 U.S . 435, 441-42, 53 S.Ct. 210, 212, 77 L.Ed . 413, 416-17 (1932)

Because the record lacks sufficient evidence to support a finding of voluntary consent, the decision of the Court of Appeals is reversed, and Appellant’s sentence and
convictions are vacated. This matter is remanded to allow Appellant to withdraw his guilty pleas pursuant to RCr 8 .09 and for further proceedings consistent with this
opinion.
Lambert, C.J ., Graves, McAnulty, Minton, and Scott, J .J., concur.

 DISSENTING OPINION BY JUSTICE ROACH:
I must respectfully dissent from the majority opinion because it misinterprets the
clear statement of the circuit judge which found that the police were given consent to
search . The order denying the motion to suppress evidence entered on July 25, 2003
clearly states that the defendants gave consent for the police to search for evidence of
an assault.: Under all the circumstances, I believe that consent was given and that this
judgment of conviction should be affirmed in all respects.
Roach, J ., joins this dissent.

DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because it misinterprets the
clear statement of the circuit judge which found that the police were given consent to
search . The order denying the motion to suppress evidence entered on July 25, 2003
clearly states that the defendants gave consent for the police to search for evidence of
an assault.
Previous article on this topic.
Ky. Sup. Ct. will consider if police can lie to gain entry to home.
The Courier-Journal in a feature story by Andy Wolfson reports that the Ky. Supreme Court will hear oral arguments on the issue of whether the police can lie to gain entry to a home.  In a McCracken County case, a detective told  Frederick Krause III, that the a small girl had said she had been sexually abused in his home and the officer wanted to check out the furniture and bedding.  This was a fabrication and the intent of the search was to look for drugs.  The officer found drugs and made the arrest.  This issue raises questions if consent can be voluntary when it is procured as the basis of a ruse.
 Several prior decisions of the Ky. Supreme Court tend to predict that court will allow ruse to justify search.
 
Adcock v. Com., 967 S.W.2d 6 (Ky., 1998)
W]hen police officers execute a search warrant on a personal residence by conducting a successful ruse that results in the occupant voluntarily opening the door which is followed by the officers announcing their identity and purpose prior to entering the home, these actions are reasonable within the requirements of the Fourth Amendment.
        This Court granted discretionary review. Additional facts will be set forth as necessary in the course of the opinion.
        As noted by the Court of Appeals, RCr 9.78 provides the procedure for conducting hearings on suppression motions, as well as the standard for appellate review of the trial court’s determination. “If supported by substantial evidence the factual findings of the trial court shall be conclusive.? RCr 9.78. When the findings of fact are supported by substantial evidence, as we conclude they are herein, the question necessarily becomes, “whether the rule of law as applied to the established facts is or is not violated.? Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (citing Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19, 102 S.Ct. 1781, 1791, n. 19, 72 L.Ed.2d 66 (1982).
        Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S.Ct. at 1918. The knock and announce rule has three purposes: (1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and (3) to protect people from unnecessary intrusion into their private activities. Id.
        However, “[t]hat is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.? Id. at 934, 115 S.Ct. at 1918. The Wilson court left “to the lower courts the task of determining the circumstances under which an unannounced
entry is reasonable under the Fourth Amendment.? Id. at 936, 115 S.Ct. at 1919.
        The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. “In order to justify a no-knock entry, the police 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.? Richards v. Wisconsin, 520 U.S. 385, —- – —-, 117 S.Ct. 1416, 1421-1422, 137 L.Ed.2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather “it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement.? Id.
        Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.
        A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis.2d 110, 492 N.W.2d 627 (1992), cert. denied, 507 U.S. 977, 113 S.Ct. 1428, 122 L.Ed.2d 796 (1993), overruled on other grounds by State v. Stevens, 181 Wis.2d 410, 511 N.W.2d 591 (1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced “police, search warrant.? As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the officer did, in fact, announce his presence and purpose before entering the defendant’s residence. Id. 492 N.W.2d at 630. Furthermore, the court held that the use of the ruse to entice the defendant to open the door in the execution of a search warrant did not violate the Fourth Amendment or the knock and announce rule because “the reasons behind the rule were satisfied–there was no real likelihood of violence, no unwarranted intrusion on privacy, and no damage to the [defendant’s residence].? Id. at 631; see also Wilson, supra, and Commonwealth v. Goggin, 412 Mass. 200, 587 N.E.2d 785 (1992).
        In fact, notwithstanding the presence of exigent circumstances, federal and state courts in interpreting either knock and announce statutes or the common law knock and announce rule are in general agreement that there is no constitutional impediment to the use of subterfuge. Entry obtained through the use of deception, accomplished without force, is not a “breaking? requiring officers to first announce their authority and purpose. United States v. Salter, 815 F.2d 1150 (7th Cir.1987); United States v. Contreras-Ceballos, 999 F.2d 432 (9th Cir.1993); Hawaii v. Dixon, 83 Hawai’i 13, 924 P.2d 181 (1996); State v. Myers, 102 Wash.2d 548, 689 P.2d 38 (1984); Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982); State v. Iverson, 272 N.W.2d 1 (Iowa 1978).
        The trial court in this case relied on Salter, supra, in which an officer, posing as a hotel clerk, telephoned appellant’s hotel room and requested her to come to the front desk. When appellant opened the door, officers positioned outside of her hotel room prevented her from closing the door and immediately entered the room. The Seventh Circuit engaged in a statutory analysis and held that there was no “breaking? and thus 18 U.S.C. § 3109 1 was not implicated by entry through an open door. Since the occupant voluntarily opened the door, entry by ‘ruse’ was permissible. See also Contreras-Ceballos, supra (an officer’s use of force to keep open a door that was voluntarily opened in response to the officer’s ruse was not a “breaking? so as to implicate § 3109.)
        We find the recent case of Hawaii v. Dixon, supra, to be factually similar to the case at hand and quite instructive. In Dixon, officers employed a ruse to gain entry into a defendant’s hotel room. Three officers placed themselves on the sides of the defendant’s hotel room door while a hotel security guard approached and knocked on the door. The security guard informed the occupants that he was there to check the air-conditioning. When the hotel door opened, the officers “entered the room simultaneously, announcing ‘in an assertive tone of voice’ that they were the police and ordering [the defendant] to get down.? 924 P.2d at 183. A search of the room produced drugs and paraphernalia.
  
     The Hawaii Supreme Court held that the use of a ruse violated neither statutory law nor the Fourth Amendment because the purposes of the knock and announce rule were not frustrated. Id. at 182. The court first engaged in a discussion of statutory law from various jurisdictions and concluded that entry gained through the use of deception is permissible so long as force is not involved. Id. at 188. In other words, an entry accomplished without force is not a “breaking? within the meaning of the majority of state statutes, as well as 18 U.S.C. § 3109, and therefore does not implicate the knock and announce rule. “[T]he employment of a ruse to obtain the full opening of the [defendant’s] door was not a “breaking.? And since the door was then wide open, the subsequent entry … did not involve a ‘breaking’ of the door.? Id. at 187. (quoting Dickey v. United States, 332 F.2d 773 (9th Cir.1964)).
       After analyzing the Wilson v. Arkansas, supra, standard and a number of opinions from other jurisdictions, the Dixon court further held that the use of a ruse to gain entry did not violate the defendant’s constitutional protections under the Fourth Amendment. Id. 924 P.2d at 189. The Court adopted the reasoning set forth by the Washington Supreme Court in State v. Myers, 102 Wash.2d 548, 689 P.2d 38, 42 (1984):
        The guiding factor in determining whether a ruse entry, to execute a search warrant, constitutes a “breaking? under the Fourth Amendment should be whether the tactic frustrates the purposes of the “knock and announce? rule. Those purposes are: (1) reduction of potential violence to both occupants and police resulting from an unannounced entry, (2) prevention of unnecessary property damage; and (3) protection of an occupant’s right to privacy.
        It appears obvious that a ruse entry, especially when the deception is not realized until after the entry has been accomplished, actually promotes both the purpose of preventing violent confrontation between the officer and the surprised occupant and that of preventing unnecessary property damage. (citations omitted)
        Accordingly, the Dixon court concluded that “[w]here the purposes of the knock and announce rule are not frustrated, and may, indeed, be furthered by the use of a ruse to obtain entry to execute a valid warrant, the tactic is not constitutionally unreasonable and, therefore, not violative of fourth amendment protections.? Dixon, supra at 191.
        Appellant further argues that even if this Court concludes that police may utilize a ruse to gain entry absent exigent circumstances, if such is unsuccessful, the police must still follow the knock and announce rule. “If the ruse employed is unsuccessful and the officers did not gain peaceful entry, then the ‘knock and wait’ rule comes into play.? State v. Ellis, 21 Wash.App. 123, 584 P.2d 428, 430 (1978).
        The flaw in Appellant’s argument is that she believes because the disguised officer
did not gain actual entry into her residence under the guise of a pizza delivery person, that the police did not gain peaceful entry and thus the ruse failed. As such, the officers were required to follow the requirements of the knock and announce rule. We disagree. The ruse was successful because it enticed Appellant to voluntarily open the door in the first place. At that point, the necessity for the ruse evaporated. Officers gained peaceful entry through the open door without having to use any force. As previously stated, such does not constitute a breaking or forceful entry. Although officers may have preferred to have gained access under the pretense of the delivery ruse rather than having to announce their identity, the ruse still accomplished its intended purpose, namely, to prevent Appellant from disposing of the drugs prior to the officers gaining entry into her residence.
        Even if the ruse in this case was unsuccessful, the trial court found that there were sufficient facts to conclude that the officers complied with the requirements of the knock and announce rule. The trial court specifically made the finding that the officers announced their presence prior to entering Appellant’s residence. Moreover, we reject Appellant’s proposition that the officers were required to wait until she specifically denied them access. Waiting would have served none of the purposes of the rule.
Because an occupant, in the face of a valid search warrant, has no right to refuse admission to police, no interest served by the knock and announce rule would be furthered by requiring police officers to stand at an open doorway for a few seconds in order to determine whether the occupant means to admit them.
        State v. Richards, 87 Wash.App. 285, 941 P.2d 710, 713 (1997); United States v. Kemp, 12 F.3d 1140 (D.C.Cir.1994).
        Contrary to Appellant’s assertion, we find nothing in the language of Wilson v. Arkansas, supra, to be inconsistent with the Dixon court’s analysis or our application thereof. The United States Supreme Court, while reiterating the knock and announce rule in the context of the Fourth Amendment, clearly has not foreclosed the use of police deception to gain entry into a residence for the purpose of executing a valid search warrant. Indeed, we agree with the decisions cited herein, that such a tactic, so long as it is accomplished without the use of force, promotes the underlying purposes of the knock and announce rule and is constitutional and reasonable under the Fourth Amendment.
        Accordingly, we hereby affirm the decision of the Court of Appeals upholding the trial court’s order denying Appellant’s suppression motion.
Riley v. Commonwealth of Kentucky, 120 S.W.3d 622 (Ky., 2003)
  Appellant’s “stalking horse? defense is premised upon his assertion that “Operation Night Vision? was a subterfuge to enable other police agencies to conduct unconstitutional searches of parolees’ residences under the guise of a parole officer’s “routine visit.? Prior to the decision in Knights, supra, a majority of federal courts had, indeed, held that a search was unlawful when the probation or parole officer was acting as a “stalking horse? for a police investigation, i.e., when the officer’s visit was but a ruse for an entry and search by the accompanying police officers. See United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994) (?[I]t is impermissible for a probation search to serve as subterfuge for a criminal investigation.?); United States v. Grimes, 225 F.3d 254, 259 (2nd Cir. 2000); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.
1997); United States v. Oolev, 116 F.3d 370, 372 (9th Cir. 1997); United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996); United States v. Coleman, 22 F.3d 126, 129 (7th Cir. 1994); Shea v. Smith, 966 F.2d 127, 132 (3rd Cir. 1992). However, in the process of reversing the suppression of evidence seized in a probation search that was for “investigatory,? as opposed to “probationary,? purposes, Knights eliminated the “stalking horse? defense.
        Because our holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. With the limited exception of some special needs and administrative search cases, we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.
        Knights, supra, at 122, 122 S.Ct. at 593 (citations and quotations omitted). The Ninth Circuit Court of Appeals has subsequently held United States v. Stokes, 292 F.3d 964 (9th Cir. 2002), that, in light of Knights, “our circuit’s line of cases holding searches of probationers invalid on the ground that they were subterfuges for criminal investigations is, in that respect, no longer good law.? Id. at 967 (overruling Ooley, supra).
        We agree that Knights eliminated the so-called “stalking horse? defense. Thus, we need not engage in a subjective examination of the official purpose behind this particular “Operation Night Vision? visit. We simply hold that the search of the remainder of Appellant’s mobile home did not violate his constitutional right to be secure against unreasonable searches and seizures.

ARTICLE PUBLISHED IN COURIER-JOURNAL:

Ky. court will consider if police can lie Ruse let detective gain entry to home
By Andrew Wolfson  – The Courier-Journal

When Kentucky State Police Detective Jason Manar knocked on the door of a Paducah home where he’d heard drugs were being sold, he knew the occupants probably wouldn’t consent to a search if he said he was looking for narcotics.
So he lied.

He said a girl claimed to have been sexually assaulted inside the house and that he wanted to examine the furniture and bedding to see if it matched the description she gave.
Manar was allowed into the home, where he found a small amount of cocaine and marijuana and then arrested the homeowner, Frederick Carl “Fritz? Krause III.
“I was outraged,? recalled Krause, who was fired from his job as a director at WPSD-TV after the March 2003 arrest. “You would think you could trust authorities to tell you the truth.?
Krause, then 29, pleaded guilty to possession of drugs and drug paraphernalia — but on the condition he could challenge the legality of the search.
Today, as a result, the Kentucky Supreme Court will hear arguments on an issue it has never addressed: Whether a defendant’s consent to a search can ever be “voluntary? — as required for a search without a warrant — when it is the product of a police officer’s deceit and misrepresentation.
Courts have long held that police may try to trick suspects during interrogations — by falsely telling them that their fingerprints were found at the scene, for example, or that a partner confessed and implicated them. The thinking is that the suspect is already in custody and has been read his rights.
But constitutional law experts say the use of trickery to get permission for a search is more troubling because it easily can be coercive.
“Anyone falsely accused of sexually assaulting a young girl would allow the search in order to clear himself,? said Wayne LaFave, professor emeritus at the University of Illinois College of Law and author of a six-volume treatise on searches and seizures.

Ruse raises questions

In the Krause case, McCracken Circuit Judge Craig Clymer upheld the search, in part because he said Krause and his roommate, who also was charged and convicted, could have refused it.
But Clymer said the ruse raised “serious constitutional questions? and was “not an appropriate police practice.?
Dissenting from a 2-1 decision affirming Clymer’s decision, Chief Court of Appeals Judge Sara Combs called the deception “a dangerous threat to the essence and integrity of the Fourth Amendment, which protects against unreasonable searches and seizures.?
Manar, who acknowledged in court that he made up the story to get into Krause’s home, now works for the FBI in Illinois. Reached by phone yesterday, he said he couldn’t comment on the court case, citing bureau policy.
A state police spokesman, Sgt. Phil Crumpton, said the department also couldn’t comment, because of the appeal.
But in a brief filed with the Supreme Court, Assistant Attorney General Courtney Hightower said deception alone does not invalidate consent to a search and that most courts have recognized that “ruses are a sometimes necessary element of police work.?
In Washington, for example, a state court found in 2003 that Seattle police did not violate the Constitution when they tricked a serial murder suspect into providing a sample of his DNA by sending him a letter — and a self-addressed, stamped envelope — from a phony law firm, inviting him to join a nonexistent class-action lawsuit. He licked the envelope, providing the DNA sample.
“You kind of wince a bit and it’s not something you want to do, but sometimes you have to use deception because it is necessary to solve crimes,? said Louisville Metro Louisville Police Detective Larry Duncan. “I refer to it as a little white lie.?
But police commanders say deception can backfire. “If you tell a suspect you’ve got his prints and he knows he wore gloves? when committing the crime, “he knows you’re lying, and you lose any rapport you’ve build up with him? said metro police Capt. Donald Burbrink.
Metro police Capt. Steve Thompson said deceiving a suspect into consenting to a search is a risk not worth taking — because of the chance the evidence will be suppressed. He said the department encourages detectives to get search warrants when possible.
Crumpton said state police have no policy on using ruses to get inside a home. The Lexington Police Department also has no written rules on that practice, but Maj. Robert Stack said its officers don’t do it.
Mike Schwendeman, a staff attorney at the Kentucky Department of Criminal Justice Training, which instructs officers from many police departments, said through a spokeswoman that officers must be extremely careful using deception in searches because consent must be given “freely and voluntarily.?
FBI spokesman Stephen Kodak said if agents use a ruse to get voluntary consent for a search, “our policy is to stay within the parameters of the deception. If we say we are a meter reader, we will search around the meter, not wander around the house.?

Searching for drugs

The events leading to Krause’s conviction began on March 18, 2003, according to court records, when another man that Manar had arrested on a charge of cocaine possession said he had bought the drug from Krause’s roommate, Joe Yamada.
Manar knew he didn’t have probable cause to get a warrant, so he went to their house in the middle of the night to see if they would agree to a search. He said he told Yamada or Manar — he wasn’t sure which — that a girl claimed she had been assaulted and that the assault took place at their house.
“I thought that would ease his mind a little more than confronting him with the drugs,? Manar said.
Inside, Manar said, he caught Yamada trying to hide a coke spoon, then found a bag of about 3 grams of cocaine in his bedroom and a bag with slightly more than an ounce of marijuana in another room.
Yamada and Krause pleaded guilty to marijuana and cocaine charges, as well as possession of drug paraphernalia. Yamada, who didn’t join the appeal, was placed on probation for three years, and Krause for 2½.
Krause, who now lives in a Chicago suburb where he manages a grocery store, has served out his probation. He said in a phone interview that he is continuing to challenge his conviction because “the right to be secure in your own home has gone out the window.?
His lawyer, Jeremy Ian Smith of Paducah, said the case is important to all Kentuckians.
“If the court upholds this decision,? he said, “the police will be able to show up at your doorstep, claim they have a report of a fire, and then search your place looking for the alleged heroin that some recently arrested nut who owes you money said would be there.?

Reporter Andrew Wolfson can be reached at (502) 582-7189.

THE NEW 2006 STATUTE:
KRS 503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle –Exceptions.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or
great bodily harm to himself or herself or another when using defensive force that is
intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of
unlawfully and forcibly entering or had unlawfully and forcibly entered a
dwelling, residence, or occupied vehicle, or if that person had removed or was
attempting to remove another against that person’s will from the dwelling,
residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an
unlawful and forcible entry or unlawful and forcible act was occurring or had
occurred.

(2) The presumption set forth in subsection (1) of this section does not apply if:
(a) The person against whom the defensive force is used has the right to be in or
is a lawful resident of the dwelling, residence, or vehicle, such as an owner,
lessee, or titleholder, and there is not an injunction for protection from
domestic violence or a written pretrial supervision order of no contact against
that person;
(b) The person sought to be removed is a child or grandchild, or is otherwise in
the lawful custody or under the lawful guardianship of the person against
whom the defensive force is used;
(c) The person who uses defensive force is engaged in an unlawful activity or is
using the dwelling, residence, or occupied vehicle to further an unlawful
activity; or
(d) The person against whom the defensive force is used is a peace officer, as
defined in KRS 446.010, who enters or attempts to enter a dwelling,
residence, or vehicle in the performance of his or her official duties, and the
officer identified himself or herself in accordance with any applicable law or
the person using force knew or reasonably should have known that the person
entering or attempting to enter was a peace officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any
other place where he or she has a right to be has no duty to retreat and has the right
to stand his or her ground and meet force with force, including deadly force, if he or
she reasonably believes it is necessary to do so to prevent death or great bodily harm
to himself or herself or another or to prevent the commission of a felony involving
the use of force.

(4) A person who unlawfully and by force enters or attempts to enter a person’s
dwelling, residence, or occupied vehicle is presumed to be doing so with the intent
to commit an unlawful act involving force or violence.
Effective: July 12, 2006
History: Created 2006 Ky. Acts ch. 192, sec. 2, effective July 12, 2006.

KRS 503.050 Use of physical force in self-protection — Admissibility of evidence of prior acts of domestic violence and abuse.

(1) The use of physical force by a defendant upon another person is justifiable when the
defendant believes that such force is necessary to protect himself against the use or
imminent use of unlawful physical force by the other person.
 (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.
 (3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.
 (4) A person does not have a duty to retreat prior to the use of deadly physical force.
Effective: July 12, 2006 – History: Amended 2006 Ky. Acts ch. 192, sec. 3, effective July 12, 2006. — Amended 1992 Ky. Acts ch. 173, sec. 2, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 30, effective January 1, 1975.
KRS 503.090 Use of physical force in law enforcement.
(1) The use of physical force by a defendant upon another person is justifiable when the defendant, acting under official authority, is making or assisting in making an arrest,
and he:
(a) Believes that such force is necessary to effect the arrest;
(b) Makes known the purpose of the arrest or believes that it is otherwise known
or cannot reasonably be made known to the person to be arrested; and
(c) Believes the arrest to be lawful.
(2) The use of deadly physical force by a defendant upon another person is justifiable
under subsection (1) only when:
(a) The defendant, in effecting the arrest, is authorized to act as a peace officer;
and
(b) The arrest is for a felony involving the use or threatened use of physical force
likely to cause death or serious physical injury; and
(c) The defendant believes that the person to be arrested is likely to endanger
human life unless apprehended without delay.
(3) The use of physical force, including deadly physical force, by a defendant upon
another person is justifiable when the defendant is preventing the escape of an
arrested person and when the force could justifiably have been used to effect the
arrest under which the person is in custody, except that a guard or other person
authorized to act as a peace officer is justified in using any force, including deadly
force, which he believes to be necessary to prevent the escape of a person from jail,
prison, or other institution for the detention of persons charged with or convicted of
a crime.
Effective: January 1, 1975
History: Created 1974 Ky. Acts ch. 406, sec. 34, effective January 1, 1975.

 

Comments

  1. Bill Adkins
    8:15 pm on November 30th, 2006

    Heard about Cory Maye? http://volokh.com/posts/1134497241.shtml

    His case falls into the category you describe.

    “Cory Maye, 23, said he was asleep on a chair in the living room of his Prentiss apartment as his 14-month-old daughter slept in the bedroom when he heard a loud crash at his front door.
    “I immediately ran to my daughter’s room, got a pistol, put in a magazine and chambered a round,” said Maye, who is on trial for capital murder in Marion County. “As I laid on the floor by the bed, I heard kicks at the back door. I was frightened, I thought someone was trying to break in on me and my daughter.”
    ;Maye testified that it was dark in his apartment when he heard someone breaking into the back door, which was located in the bedroom.
    “That’s when I fired the shots,” Maye said. “After I fired the shots, I heard them yell ‘police! police!’ Once I heard them, I put the weapon down and slid it away. I did not know they were police officers.”
    How could this have led to the death penalty, you’re wondering? “