William H. Rehnquist: We'll hear argument next in Number 96-5955, Steiney Richards v. Wisconsin. Mr. Karpe, you may proceed whenever you're ready.
David R. Karpe: Mr. Chief Justice, and may it please the Court: This case presents the issue of whether the Fourth Amendment prohibits a blanket exception to the knock-and-announce rule in drug-dealing cases. This case turns on the sanctity of the home, the ultimate private place--
William H. Rehnquist: This fellow was actually in a motel room, wasn't he?
David R. Karpe: --Mr. Chief Justice, I fully agree, and as one who has been a resident of a hotel recently I would submit that it is the longstanding doctrine of this Court that a hotel room is a home for the purposes of the Fourth Amendment under Stoner v. California--
William H. Rehnquist: Is there a case that says a motel room is a home?
David R. Karpe: --I believe Stoner v. California, U.S.... United States v. Jeffers, United States v.--
William H. Rehnquist: I agree with you those cases said that a hotel room is protected by the Fourth Amendment. I don't know that any of them ever said a hotel room is a home.
David R. Karpe: --I... Mr. Chief Justice, I believe that those stand for the proposition that the hotel room has the same protection as a home. If it has four walls and a roof, it's a home.
William H. Rehnquist: I think that's probably correct, but to say... when you say that a motel room... we're talking here about the sanctity of the home. You're talking about something that is protected under the Fourteenth Amendment in the same way that a home is.
David R. Karpe: Yes, Mr. Chief Justice.
Antonin Scalia: The Fourth Amendment doesn't mention homes anyway, does it?
David R. Karpe: It mentions--
Antonin Scalia: The right of people to be secure in their persons, houses, papers, and effects, so I guess the real issue is whether a hotel room is a house. Do you think it's a house? [Laughter]
David R. Karpe: --Justice Scalia, I believe that the textual use of house is not referring to the... protecting the structure but rather what occurs inside the house. The Bill of Rights was adopted in reaction to the anti-Federalist concern that way too much Federal power was going to exist and it was going to invade the home and what it contained, the privacy of the... your family, your spouse, so I believe that the home is the core value of the Fourth Amendment. If the Fourth Amendment does not protect the home, it doesn't protect anything. Now, the judge who issued the search warrant in this case weighed the sanctity of the home against the general allegation by the police that drug dealers tend to carry on, and the judge who issued the warrant found that no-knock was not appropriate, specifically instructed the police not to exercise no-knock, they chose to disregard that when--
Ruth Bader Ginsburg: Mr. Karpe, on that striking feature of this case, here it was the affidavit of the police with... asking for permission for no-knock, and the United States struck that out. Is that a common thing to include in affidavits, and how does it... is it ordinarily taken out?
David R. Karpe: --I have seen a number of different forms of applications for search warrants, Justice Ginsburg, and sometimes there's check-off boxes. In this particular case, the police made an application for a no-knock and Judge Frankel, upon reviewing the facts that were pled in the complaint for the search warrant, decided that the circumstances did not merit--
Ruth Bader Ginsburg: What I'm asking, maybe you don't know the answer to this question, is, is it standard operating procedure in Wisconsin for the police to ask for no-knock permission?
David R. Karpe: --Justice Ginsburg, I'm sorry, I misunderstood your question. There's no requirement that the police seek advance approval of no-knock. No-knock warrants are neither specifically forbidden nor specifically--
Ruth Bader Ginsburg: As a matter of practice, do police... is this a common form of affidavit? Do police ask for it?
David R. Karpe: --Often they do that, Justice Ginsburg.
Ruth Bader Ginsburg: And is it also often that the judge X's it out, the magistrate X's it out?
David R. Karpe: I cannot speak to that, Justice--
Anthony M. Kennedy: Would it be a fair interpretation to say that the judge instructed the officers that they must knock, and failure to do so was therefore a violation of the warrant?
David R. Karpe: --Justice Kennedy, I hope I'm understanding your question correctly, but by--
Anthony M. Kennedy: By striking it out, does that mean that they must knock?
David R. Karpe: --I believe that was Judge Frankel's intention, that his review of the facts presented to him did not present that it would be reasonable--
Anthony M. Kennedy: Of course, that's not really in this case. This case is here for us to test the rule announced by the Wisconsin court that did not depend on the interpretation of the warrant. What would your position be if in situations where the magistrate does authorize a no-knock entry, do you say that if police then follow such an authorization and enter without knocking, can we have a blanket rule saying that if the magistrate has authorized it it is going to be in compliance with the Fourth Amendment?
David R. Karpe: --Justice O'Connor, the way I understand the question, I think that the pre-approval would not necessarily make the search reasonable. It depends on the particular circumstances confronted by the officer at the time of the entry.
David H. Souter: I take it the converse would be true. The court might very well have said, you've got to knock, but if they get to the porch and they hear guns being fired inside, I take it it would be quite reasonable for them to say, we're not going to knock, we're going to go in like gang-busters, and you wouldn't have a constitutional argument.
David R. Karpe: Granted, Justice--
Antonin Scalia: Or even if they don't hear guns being fired, if they hear nothing but what the court expected them to hear, the court might have just been wrong, isn't that right, as to whether it would violate the Constitution?
David R. Karpe: --Yes, Justice Scalia, which is why it's so important that there not be a blanket exception that basically removes the judicial process and has law enforcement then acting in a way unfettered by legal process. It basically makes the line officer the final judge, jury, and executioner.
Antonin Scalia: But, gee, that happens a lot of times with searches and seizures. I mean, the number of exceptions to the warrant requirement are innumerable now, and with respect to every one of those exception, exigent circumstances and so forth, it's up to the police officer to make his best judgment.
David R. Karpe: Yes, Justice Scalia, but hopefully reviewable by a court.
Antonin Scalia: Okay. We're not saying it's not reviewable, but--
David R. Karpe: The blanket exception makes it, Justice Scalia, a very simplistic process. The questions that are asked are, was there a search warrant? Was there evidence of drug dealing? And it's not--
Antonin Scalia: --What about automobiles? I mean, we have a blanket exception for automobiles, don't we? You can search automobiles without a warrant.
David R. Karpe: --Yes, Justice Scalia, and I don't... the Founders didn't include in the Fourth Amendment that we had a right to be secure in our carriages or whatever. The house is textual. The... this is... in this area of--
Antonin Scalia: I like that. [Laughter]
David R. Karpe: --In this area, we would submit that a blanket rule would never be acceptable with regard to unannounced entries. The courts even found--
Anthony M. Kennedy: We recently announced a blanket rule, did we not, in, I believe it's Maryland v. Wilson, with reference to people stepping out of automobiles. Isn't this just as sensible?
David R. Karpe: --Justice Kennedy, I agree that that did set a blanket rule, but--
Anthony M. Kennedy: So there are blanket rules.
David R. Karpe: --Apart... but that was a very de minimis sort of intrusion. The car is stopped anyway. This is not a de minimis intrusion.
Sandra Day O'Connor: Well, that could be major. It could be a storm, and it could be some poor woman nursing a tiny baby, or some sick person. That's not a de minimis rule.
David R. Karpe: The Court had already ruled in Pennsylvania v. Mimms that asking the driver to step out under the same circumstances was de minimis. I think that Maryland v. Wilson was a fairly simple extension. This is simply not de minimis by any means. This is one of those extraordinary searches, extraordinary invasion which is unusually dangerous and unusually invasive of someone's privacy and their safety. People get killed during these things. There's a high risk in a no-knock search the citizens are going to experience some sort of injury. The police come banging in through the door, weapons are drawn, there's no notice, and it's dangerous to police, too. People might think they're being burglarized.
Sandra Day O'Connor: Well, it's dangerous even with a knock and announce as well, I assume, in situations like this where there's a drug dealer with weapons. By knocking and saying, police here, it gives the person time to get the weapons ready and you can have just as much danger to the police who enter.
David R. Karpe: Justice O'Connor, there was no indication that Steiney Richards had weapons. This was a 19-year-old kid from Detroit who's dealing coke. He's not a member of the Medellin cartel.
Sandra Day O'Connor: You were speaking in generalities--
David R. Karpe: Yes.
Sandra Day O'Connor: --and so was I.
David R. Karpe: Yes, but--
Stephen G. Breyer: He jumped out the window, didn't he? I mean, he had time. As soon as he finds out the police are here he jumps out the window, runs away.
David R. Karpe: --Well, I think--
Stephen G. Breyer: Is that a legitimate concern?
David R. Karpe: --Justice Breyer, I think it's ambiguous that he knew that that was police. He looks out, he sees someone--
Stephen G. Breyer: Did he just jump out the window for fun?
David R. Karpe: --He knew someone was trying to bang the door down. He figured, give up the drugs and save his skin. I mean, hop out the window. We're talking about December 31 in Wisconsin. He was not going to get very far without a shirt, Justice Breyer. [Laughter]
Stephen G. Breyer: I take it that... right. [Laughter] The police say... I think they have a legitimate interest in some... with drug deals in general, not announcing their presence, because a) they might get killed, or b) the person might jump out the window, or c) he might flush the drugs down the toilet. They say that happens all the time... all the time. As soon as they find out, police, it's into the bathroom, the drugs are gone, and they want to preserve the evidence, they don't want him to run away, and they don't want to get shot, so what is the response to those three?
David R. Karpe: Justice Breyer, there is certainly no indication that Mr. Richards was going to attempt to destroy drugs, and certainly the way they were packaged he would have had a heck of a time. They were basically divided up into 120 little plastic packets, plus and to answer your question and at the same time sort of get back to Justice O'Connor's question, the mere fact that even if a drug dealer has guns, it does not mean he intends to use them against the police. More than... more often than not it's to get... to enforce debts, to protect themselves against rivals, and people certainly are afraid of being burglarized. The most dangerous instances that we've come across in terms of these sort of police invasions without announcement is that people think they're being burglarized and take weapons out, get ready to shoot, and when they learn it's the police, then they drop the weapons. The instances where police tend to get shot is not this myth that the Allegro article that's often referred to speaks of, this fatal funnel where the drug dealer stands at the door with his weapon pointed at the door waiting for someone to come in. More often than not, when an officer is killed during one of these searches it's because there's someone in a back room who's hiding, and--
Antonin Scalia: Once again, I'd rather be inclined to rely on the judgment of the officers as to what is more or less likely to endanger their lives. You're asking us to give them a form of protection that they are too stupid to give to themselves? I mean, if, indeed, they're getting themselves killed more often by crashing in, I assume they're not going to crash in. I don't know why we have to adopt a constitutional rule to protect police officers from themselves.
David R. Karpe: --Justice Scalia, I agree, the Fourth Amendment is not there to protect Government. It's not there to protect law enforcement. It's there to protect citizens.
Antonin Scalia: So I mean, this argument you've been dwelling on that, you know, it's going to hurt the police officers more, I... you know, it's sort of... I don't see it. That'll take care of itself. If, indeed, it's more dangerous for the police officers, presumably, in the nature of things, police officers won't do it.
David R. Karpe: Justice Scalia, I don't think there's any indication that in fact it is more dangerous to the police to announce. That just is not there.
Antonin Scalia: Well, the State says so. I... you know, and I'm inclined to accept their judgment as to what's more dangerous or less dangerous for the police.
David R. Karpe: I... in any case... I don't... this is not really in response to your question, but in any case, in the... this Court's very well-reasoned and unanimous decision in Wilson v. Arkansas, this Court recognized the presumption in favor of announcement. I think that the blanket exception in fact ignores the precepts of Wilson and sets a presumption against announcement.
Antonin Scalia: Suppose it weren't blanket, Mr Karpe. Suppose it were just a... this really wouldn't serve your purposes in this case anyway. Suppose we just had a rule, sure, ordinarily you must knock and announce. However, there are extraordinary circumstances where you don't have to and ordinarily, perhaps almost always, drug-dealing is one of those extraordinary circumstances. Would that rule satisfy you? It's not an absolute rule. It just says, you know, ordinarily. Conceivably there's some situations in which drug-dealing wouldn't allow you to go crashing in if you know the drugs are being held in hundred-pound bales by little old ladies without guns. [Laughter]
David R. Karpe: Justice Scalia, again, that... the presumption there is going the wrong way. Sir, I'm not saying there has to be announcement in every single case, but to basically except what I... I assume you're discussing the U.S.'s position--
Speaker: Right.
David R. Karpe: --would create a situation where the police would possibly have no motivation to uncover facts but might lead to an indication that this is the exception to the exception. I think it's a very hard to enforce rule for law enforcement, and is the defendant then to have the burden of persuasion?
Ruth Bader Ginsburg: What about a statute that settles it like the two that are in the appendix to this amicus brief from Americans for Effective Law Enforcement, that gives the magistrate authority, if he finds two things, one that there's a danger to life and limb, and that the... or that the property sought may be easily or quickly destroyed? Is that statute, those two statutes constitutional, where the magistrate relieves the officer of the decision to be made on the spot by authorizing in the warrant a no-knock search if these conditions... if the magistrate finds these conditions present, that the property sought can be quickly destroyed, or that there's danger to life and limb of the officer or another?
David R. Karpe: Justice Ginsburg, I think if there's a specific indication that there is danger to the officer, that would be acceptable. To say it can be easily destroyed I think goes too far and leads to procrustean application, because we can't deny that many drugs, particularly in small quantities, can easily be destroyed.
David H. Souter: And yet that is a standard reason for applying the exigent circumstances doctrine, and if exigent circumstances may be applied, why can't the kind of pre-warrant determination that the statute refers to and that Justice Ginsburg refers to?
David R. Karpe: Justice Souter, I think that it leads to a danger in application--
David H. Souter: Well, there's a danger in application, I suppose, to exigent circumstances, because it depends upon a judgment made on the spot. This is somewhat less dangerous, because it's not being... a judgment made in the heat of action.
David R. Karpe: --I think that the mere fact that there's drugs present and that there's a toilet bowl nearby would not constitute exigent circumstances. It's certainly easy enough for the police to turn off the water so the drugs can be flushed--
David H. Souter: How are they going to turn off... you mean, they're going to go into the basement of the building and turn the water-- --You must have these fancy new toilets in your home. Ours has a tank. You can shut off the water. You get one flush anyway. [Laughter] You've got to try something else.
David R. Karpe: --Well, I'm not arguing for the one-flush rule, but-- [Laughter] The... many toilets in apartments and hotels do not have tanks. They can be easily flushed off from outside the room. And I suppose the police could even put a tap on the sewer line so that the evidence is recovered. It fact, it has greater weight, so the penalty would be greater, because then instead of just having the drug, you've got the drug in solution. But in any case, this would be a procrustean sort of application, which Mr. Richards certainly wouldn't fit. He was not poised to destroy evidence. He... there was no indication that he was going to be armed or violently resist, and it will fit a lot of people even less than it fit Mr. Richards. Certainly someone who has a marijuana-growing operation outside the house would not fit this sort of--
William H. Rehnquist: Well, under what circumstances, Mr. Karpe, do you think the police may dispense with the knock-and-announce rule in connection with a, say, a drug search?
David R. Karpe: --Mr. Chief Justice, I believe when there are particular circumstances indicating there are exigent circumstances present, or--
William H. Rehnquist: What would some of those indications be? I mean, how easy would your rule be to apply in practice?
David R. Karpe: --Mr. Chief Justice, there's usually an informant involved in these things who's been in the home, who can see whether there's provisions being made for destruction of property, see whether the people are armed. Certainly in Wilson v. Arkansas the Court was aware of a number of factors that could have led the court to conclude that a blanket rule was acceptable and the Court wisely chose not to do so.
John Paul Stevens: Would it be enough, Mr. Karpe, if the police had probable cause to believe that there were automatic weapons on the premises?
David R. Karpe: Justice Stevens, that again would approach a blanket sort of rule.
John Paul Stevens: Are you suggesting that in all drug arrest cases that we should assume there are automatic weapons present? It seems to me if you are you may be suggesting an automatic rule makes a lot of sense.
David R. Karpe: Well, I... Justice Stevens, I don't know if I understood the question correctly, but I don't think you can necessarily draw the conclusion each time there's drugs that there's both weapons and--
John Paul Stevens: No, I understand that. I'm saying if the application for a warrant indicates that police have probable cause to believe that the people who have the drugs also are armed with automatic weapons, would that justify a no-knock entry?
David R. Karpe: --Justice Stevens, I think you'd have to look at the particular--
John Paul Stevens: Well, those are the facts.
David R. Karpe: --There has to be--
John Paul Stevens: The facts are that there are three men in the premises, in the motel room. It is known that they have automatic weapons. They have a large quantity of drugs with them. That's all. They don't know anything about their criminal history, but they know they're armed in that way. Would that justify a no-knock entry, in your view?
David R. Karpe: --No, I don't believe so.
John Paul Stevens: When would it be justified, then?
David R. Karpe: When there would be a particular circumstance that--
John Paul Stevens: But what more than I've told you? What would be an additional circumstance that would justify it?
David R. Karpe: --That threats had been made to other persons, that they had indicated some sort of intention to violently resist, that--
Antonin Scalia: I see. These are violent people with automatic weapons, rather than peaceful people with automatic weapons. [Laughter]
David R. Karpe: --Justice Scalia, some people collect automatic weapons. [Laughter]
John Paul Stevens: And take them to the hotel room when they're in Wisconsin. [Laughter] I think your reluctance to answer the question to indicate that the police have the right to enter when automatic weapons are present is because you think we're going to say, oh, well, that's a per se rule. But at some level you have to have certain standards and rules given by this Court for the police officer to act upon, and it seems to me that the presence of weapons is a perfectly sensible rule.
David R. Karpe: Well, I think the reasonable suspicion standard is the applicable standard here. It's one of the relatively simpler concepts under the Fourth Amendment. I think it's easy for the police to apply and should apply in this case.
William H. Rehnquist: What about reasonable suspicion of automatic weapons? Then that would not be enough in your view?
David R. Karpe: No.
William H. Rehnquist: So reasonable suspicion of what?
David R. Karpe: Reasonable suspicion that the occupants in fact have the weapons, were prone to use them, weren't just collecting them--
William H. Rehnquist: Well, are you serious about saying, this is a drug bust and you would have to show that the automatic weapons that the putative defendants had weren't just being collected in the motel room? [Laughter]
David R. Karpe: --Perhaps... perhaps, Mr. Chief Justice, it would depend on the quantity of the drugs involved as well, but there would have to be a regard towards the particularity of the circumstances.
Antonin Scalia: What quantity of the automatic weapons? I suppose if you had, you know, a couple of hundred of them, maybe they were collecting them, right? I mean, more than they could use. If... just suppose for a moment that I thought it was enough if you had probable cause to believe that there were weapons in the room, that that would be enough to go crashing in, weapons, you know, at the ready. If I think that's enough, why wouldn't it be enough simply to know that this is a drug dealer, assuming I can establish that 95 percent of the time drug dealers are armed?
David R. Karpe: Justice Scalia, I believe that the answer to that lies in the fact that drug dealers do not necessarily have arms to use against the police but rather to defend against people who might steal from them, to enforce debts, and particularly many people have firearms just around, not for particularly drug-related purposes, even though they might be drug suspects. This... the knock-and-announce rule protects the innocent and the relatively innocent as well, and if I may reserve my remaining time.
William H. Rehnquist: Very well, Mr. Karpe.
David R. Karpe: Thank you.
William H. Rehnquist: General Doyle, we'll hear from you.
James E. Doyle: Mr. Chief Justice, and may it please the Court: The Wisconsin supreme court has made a common sense determination, in light of the modern-day drug trade, that in the execution of search warrants for... in felony drug-dealing cases it is reasonable under Fourth Amendment standards for the officers to knock, announce their presence, and give the occupants an opportunity to react. There is discussion about what an invasive, intrusive entry into the home this search is, and we agree. Agents inform me that if you had videotapes of a no-knock search and a knock search in a drug case, you would be... you would see almost exactly the same events occur on that videotape, that even in the knock case, there will be an overpowering number of officers that are going to enter those premises. The officers will have their guns drawn. The officers will be shouting, police, police, search warrant. The officers will round up all of the occupants on those premises. Those occupants may sometimes be children. Those occupants may sometimes be elderly. Those occupants... because in Wisconsin we have no rule against night-time searches, most of these searches in fact occur at night. Those occupants may frequently be sleeping. Whether there is a knock-and-announce or a no-knock, there will be a rapid, overpowering securing of the premises by the law enforcement officers who enter.
Antonin Scalia: General Doyle-- --How long do you wait after announce and a knock, a knock and announce? I mean, you knock, announce, nothing happens. How long does the officer typically wait before they do crash in?
James E. Doyle: We... in Wisconsin... it depends somewhat on the circumstances, the size of the room. A motel room is going to be less than a mansion, but roughly 10 to 15 seconds, enough time for somebody to come to the door and open the door.
Antonin Scalia: Just enough time for somebody who would hear the knock to come?
James E. Doyle: That's correct.
John Paul Stevens: General Doyle, if you're correct that the videotapes would show the same scenario regardless of whether there's a knock or no-knock, doesn't that suggest that the no-knock... that the requirement of a knock doesn't really harm the law enforcement operation?
James E. Doyle: It harms law enforcement enormously, because in circumstances, and we would argue in drug-dealing cases, because that knock and announce, it's 10 to 15 seconds of waiting, and then it's however long a time it takes to get organized then to come through the door.
Speaker: Right.
James E. Doyle: And during that time a person on the other side who is going to train a gun at that door has full time to do it, or a person who is intent on destroying narcotics may do it. There's a suggestion in this case that there's no evidence that anybody was going to destroy drugs. Well, it's interesting, these drugs were stored in the bathroom. That... and under Wisconsin law, like under most law, even if you don't get them all destroyed, the fewer drugs they find the lesser penalties you have under our drug laws.
John Paul Stevens: Well, if you're going to rely on destruction of evidence, would it not be true that in every drug case there is a possibility that some of the drugs will be flushed down the toilet--
James E. Doyle: It is true--
John Paul Stevens: --and that therefore you don't really have to rely on the violence at all.
James E. Doyle: --It is true that in every drug case there will be destruction, there is the potential of destruction. The Wisconsin blanket rule applies only to felony drug cases because of the convergence in a violent and dangerous form of commerce of weapons and the destruction of drugs.
John Paul Stevens: My question really, General Doyle, is if the potential for destruction of evidence is sufficient by itself to justify no-knock, why shouldn't the rule encompass even misdemeanor cases, because there always is that potential there, it seems to me.
James E. Doyle: I think in most misdemeanor cases, even on a case-by-case analysis with the police officers going to the door in a drug case, that in that case-by-case analysis... there may be some exceptions to it, but in that case-by-case analysis the balance would weigh heavily on the side of the police.
John Paul Stevens: Would it ever weigh the other way if the destruction of evidence is enough?
James E. Doyle: In a low-level... in a case-by-case analysis, in a low-level drug case in which there's information that it is only the grandmother who is on the premises, perhaps.
John Paul Stevens: But she's fast enough to get to the bathroom in 10 seconds. [Laughter]
James E. Doyle: Well, she may be, but as I say, in a case-by-case analysis with... in a misdemeanor simple possession of marijuana with a grandmother on the premises, perhaps it is sufficient. Perhaps in that balance you would come out with a knock-and-announce, but what we are advocating--
John Paul Stevens: I'm suggesting that you rule out... you say you never need to knock-and-announce if destruction of evidence is a sufficient exigent circumstance. I don't know why you ever have to knock and announce, because there's always the danger, it seems to me, that you get some drugs flushed down the toilet.
James E. Doyle: --I believe you do not have to knock and announce where you have reasonable suspicion to believe that destruction of evidence will occur. The question before the Court here, I believe, is whether you can apply that in a blanket way, as the Wisconsin supreme court has done in felony drug-dealing cases, or whether in each individual case we have to have a suppression hearing in which those specific facts are laid out.
David H. Souter: Well, may I ask you whether we're talking about anything but formality, and correct me if I'm wrong on these points. I assume that most drug cases do have a suppression hearing. It may be a simple one. It may not take very long, but usually there's a suppression motion. Number 2, on the very premises of your argument, if you have to justify the failure to knock and announce, you're going to be able to do it, I would assume, without too much trouble. In fact, I assume you could do it with virtually no trouble in most cases. There will occasionally be a rare case in which, for example, the informant has told you there are no guns, the marijuana is stored in bales out in the barn so that there's no risk of destruction, and in those rare cases you wouldn't be able to justify the failure to knock and announce, but in most of them you could. So are we talking really about the need for anything more than dispensing with what is probably in most cases almost a formality in the proof that you will adduce, the evidence that you will adduce at the suppression hearing?
James E. Doyle: Well, on the question of whether it will be a formality, much depends on what position this Court adopts in this case. If you were to--
Speaker: Well, let's--
James E. Doyle: --adopt the petitioner's position it is much more than a formality. We'd have detailed hearings--
David H. Souter: --Well, let's assume this Court says, look, we are perfectly willing to recognize that in most cases involving drug dealers the State will in fact have valid grounds for dispensing with knock-and-announce, because the marijuana won't be in the barn and the informant will not have said, these people are unarmed. So that we said, we recognize that in most cases they'll be able to make their proof without great difficulty, but we're not going to adopt a blanket rule for the simple reason that if we do we're going to be starting down the road to more blanket exceptions, and more blanket exceptions after that. So that in order to preserve the particularized inquiry value, which is a real value in the long run, we're still going to require the State in effect to make its proof knowing perfectly well that the State can do it in most cases. Now, that, I take it, would be a fairly benign atmosphere for you to present your proof in individual cases. Assuming we said something like that, are we then in this case arguing about anything much more than a formality?
James E. Doyle: --Yes, I believe you are, Justice Souter. Let me say that the position you've laid out, as I understand it, is essentially that of the Solicitor General, and it's one that we would prevail on in this case under the record and that we would accept, but I do think that there are values and reasons to go beyond it for the blanket rule, and there are two of them. The first is that the officer at the scene, as he or she approaches the door, or as they approach the door in drug cases is... will be, under the blanket rule, able to make a strategic, tactical decision not worrying about whether or not it will meet a reasonableness Fourth Amendment test at a later time down the road. And in that regard I think it is... this case is very much in line with Michigan v. Summers, in which in the manner of the execution of the search warrant this Court did adopt a bright line rule that permitted officers to round up the people on the premises where a search warrant was being executed. And here we are talking, just as in Michigan v. Summers, with the manner of the execution of the search warrant, and I believe that police officers, for their safety, for the safety of the occupants within, should be able to make those decisions on the entry based on their tactical and strategic decisions. Now, they may decide for reasons that were mentioned earlier by my opponent that in some of those instances it may not be safe and wise to come barging in. It may be safer for everyone to come in a different way, but that decision is a strategic and tactical one. The second issue is, I think that over time you will see those relatively benign suppression hearings become very complicated hearings about what additional facts did the police know. Okay, you--
William H. Rehnquist: Well, wouldn't part of it be who had the burden of proof in those hearings? I mean, if the State had the burden of proof at the suppression that it didn't know anything more, it's very hard to prove a negative.
James E. Doyle: --That's correct, Mr. Chief Justice. If we have to prove these were the only facts we had, and we had no further facts... we knew he was a drug dealer, felony drug dealer, and that's what we knew, and then we go through a hearing on what more did you know, if we have to prove what we didn't know, it becomes almost an impossibility. I think you will also be led, Justice Souter, into a series of hearings and a whole area of new issues of law for you to be resolved about what further proof is enough to overcome the drug-dealing exception. All right--
Ruth Bader Ginsburg: General Doyle, there are two questions that I have with respect to your argument about how complicated this will be. One is, what do we do about Wilson, where it was a drug case, and where the police knew in advance that she was armed? Was that just an idle exercise? And the second question is, in this very case there was one justice on the Wisconsin supreme court who said, I think that no-knock is generally required, but it's obvious that in this case it could be dispensed with, so it didn't seem like it's a very complicated exercise if you apply the rule, and if you don't apply the rule, aren't we just gutting what we said a couple of years ago?
James E. Doyle: --Justice Ginsburg, I think Wilson v. Arkansas is... was not a useless exercise. I think this Court clearly said that the knock-and-announce is part of the reasonableness consideration of the Fourth Amendment.
Ruth Bader Ginsburg: And we said that in the case of a drug offense in which the police were told that the person they were going in to apprehend was armed.
James E. Doyle: That's correct, and you made it clear in Wilson v. Arkansas that the facts, and whether there... whether it was justified to enter without a no-knock, would be remanded to the Arkansas courts to be determined, and this Court also made it clear in Wilson v. Arkansas that it was... you were going to leave it to the State courts at least for a while to begin to determine those times in which legitimate law enforcement concerns outweighed the requirement of knock-and-announce. As I read Wilson v. Arkansas, the Arkansas supreme court just sort of put it to you pretty bluntly. I mean, they said this doesn't have any Fourth Amendment implications, and I think this Court said it does have Fourth Amendment implications, and we are here agreeing, and in fact the Wisconsin courts have always agreed it has Fourth Amendment implications.
Ruth Bader Ginsburg: But we review a judgment, not an opinion, so I take it from what you're saying today that we really should have affirmed, not remanded in Wilson, because the factors that you're arguing for... drug offense, arms... were present.
James E. Doyle: I think that, if I might say so, you were correct at remanding to have the Arkansas court system consider the facts of that case under the... in light of the determination that knock-and-announce is part of the reasonableness requirement of the Fourth Amendment, and you sent it back to a State court to make that determination.
Antonin Scalia: We don't always determine alternative grounds for affirmance on our own. We often remand where there's an alternative ground argued. Isn't that right?
James E. Doyle: Well, that's correct, and again, after Wilson v. Arkansas, as this Court made it very clear, it said that failure to knock and announce might violate the Fourth Amendment, and that you were going to leave it to States. We--
Stephen G. Breyer: Then if we do that... I mean, what I'd be rather worried about here is, if a blanket rule crime-by-crime is constitutional, Wilson v. Arkansas doesn't mean too much, I would think, because after all, most people who are arrested and searched have committed, at least probable cause to believe they've committed rather serious crimes. So if a State could go through its criminal code and sort of block off every serious crime, there aren't too many instances, are there, in which it would have to follow the Wilson v. Arkansas rule, while at least if you make it case-by-case you weed out at some hearing price the instances where there really wasn't a good reason to dispense with the requirement. That's what I would be concerned about.
James E. Doyle: --I think it is difficult, Justice Breyer, to come up with another category of cases--
Stephen G. Breyer: A murder, for example, or armed bank robbery where people are injured, and let's try, you know, serious assaults, and we could go through and find lots of rather serious crimes in a criminal code.
James E. Doyle: --There is no doubt, I think, in a bank robbery where people are injured on the facts of that particular case there would be no problem with knock and announce, assuming it was close in time. To say, however, that all murders or all bank robberies are exempt may be another case that will come along, but I would suggest that the drug-dealing case goes well beyond them, because--
Stephen G. Breyer: So all felony... felonious use of marijuana is serious, and murder is subject to case-by-case?
James E. Doyle: --Drug-dealing has... is a commerce in this country. It is an illegal commerce. It is a commerce, unfortunately, that is marked by danger and violence.
Stephen G. Breyer: I'm not saying it isn't serious. My point is, many, many crimes are serious.
James E. Doyle: That's correct, Your Honor, many crimes are serious, but that drug-dealing fits into a particular... there is not a commerce in murders or in bank robberies. There is a commerce in drug-dealing, and it is a commerce that is characterized by the use of weapons, by the willingness to use weapons, by gang-domination, by--
Antonin Scalia: That's currently so, General Doyle, but you could have said the same thing about moonshining during Prohibition. It was the kind of a crime that attracted the mob, and there were machine guns and a lot of violence. I expect you wouldn't say the same thing about it today. Now, if we're going to adopt a constitutional rule, does this constitutional rule change as the... you know, as the proclivities of criminals change? Why not just leave it the general rule that where you have cause to believe that you'll be endangered, or that drugs... or what you're searching for will be destroyed, you can enter without knocking, and as things now are that would work out that in 99 percent of the drug cases you'll be able to do it. But if the culture changes and drug people become very laid back and pacific instead of the violent people they are, then we don't have to adopt a new constitutional rule.
James E. Doyle: --What I am asking this Court to do is to, as you did in Maryland v. Wilson, is to determine reasonableness in a category of cases, and that reasonable test--
Sandra Day O'Connor: May I ask you... may I ask you in doing that if you have any statistical evidence that you want to point out to us that demonstrates that it is more dangerous to officers to knock and announce than not to? Is there any place we could look for that?
James E. Doyle: --Your Honor, the best that we can do is what is in our brief, which shows that drug-dealing is dangerous and it's dangerous to police, but frankly--
Sandra Day O'Connor: General, I mean, as far as we know they're as apt to be hurt if they don't knock and announce as if they do. We aren't able to make that decision, apparently.
James E. Doyle: --As a statistical matter I don't think you can make that decision because I agree, there's never been a scientific peer-reviewed study on if you knock and announce or you don't knock and announce, what happens. But as I think Justice Scalia mentioned earlier, that's a judgment that's made by police officers every day as they approach--
Anthony M. Kennedy: But your State supreme court made the judgment here, or so you're saying that we should not rely on the danger of knocking versus danger of not knocking.
James E. Doyle: --I believe that you should rely that it is frequently... it is dangerous for police to knock and announce their presence, and--
Anthony M. Kennedy: Unless we could say that each State supreme court is capable of making that judgment. Then one State says it's more dangerous, the other State says it isn't, and then we have to accept that, but that--
James E. Doyle: --Well--
Anthony M. Kennedy: --I don't think that we would adopt that rule.
James E. Doyle: --Well, we're asking you to say that it's permissible under the Fourth Amendment. Whether States want to go to the full extent of what you declare to be the limit that they can go to under the Fourth Amendment will be for different States to make that decision.
John Paul Stevens: General Doyle, isn't it true that just as there are no statistics comparing the relative danger with a knock and without a knock, isn't it also true that there are at least some drug cases in which it's the grandmother example and the marijuana growing in the backyard, and there really isn't any statistical study telling us what percentage are the dangerous ones and what percentage are the relatively not dangerous.
James E. Doyle: Well, that's correct, Justice Stevens, but also, on those kinds of hypotheticals there are certainly facts presented in our brief, and I think to the Court's common knowledge, that the fact that it's an elderly person, or the fact, for example, of those Justice Department numbers--
John Paul Stevens: Well, you're going to say they generally would not bust in in those cases, but they would have a constitutional right to do so under your rule.
James E. Doyle: --That's correct, and unfortunately in this day and age, because they're elderly may not mean they're not going to be violent.
William H. Rehnquist: No. Thank you, General Doyle. Mr. Estrada.
Miguel A. Estrada: Thank you, Mr. Chief Justice, and may it please the Court: In our view, law officers who have a warrant to search for evidence of narcotics dealing ordinarily will be justified in concluding that announcement to the dwelling, or to those in the dwelling will endanger the safety of the officers and create a significant risk that evidence will be destroyed. Therefore--
Antonin Scalia: Rebus sic stantibus, right? Under current circumstances. That might change in the future. Is that the Government's view?
Miguel A. Estrada: --Well, that is right. A fundamental point in this case, Justice Scalia, is that all that is at issue in this case is what can be a basis for a reasonable belief on the part of the officers that they will be in danger, or that the drugs will be destroyed, and our fundamental point is that a judgment based on past experience with similar cases is just as valid a ground for a reasonable belief on the part of the officer as may be the circumstances that confront the officer at the specific time of the entry. And in our view those circumstances, if nothing more is known, will ordinarily warrant the officer in thinking that those dangers exist and to make an unannounced entry. On the other--
Ruth Bader Ginsburg: Mr. Estrada, one of the things that Chief Judge Abrahamson said in her concurring opinion was, well, if you're going to go by danger to the police officer, more police officers are killed responding to calls, domestic violence calls than in drug raids, so if it's danger to the police officer and you could have a blanket rule for drug raids, why not a blanket rule for domestic violence situations?
Miguel A. Estrada: --Well, I don't know that there is any reason to think that in those particular cases the manner of entry makes any difference. Fundamentally as well, we're dealing in this case with a class of cases in which the fundamental intrusion is by right. That is to say, a neutral and detached magistrate has already determined that the officers will come in. In that other category of cases it is more likely to be the case that someone has made a call on the telephone indicating that there is a need for the officer simply to come and investigate, and it's not necessarily true in those cases that you know anything other than the fact that there has been a call as the basis for any further official action.
Ruth Bader Ginsburg: But what about the statistics that inform the officer, if you're going to respond to one of those calls, you're walking into a very dangerous situation where your life is going to be on the line.
Miguel A. Estrada: Well, that may be true, but it is not... and just to put our point in context, our point in this case is that that may have significance in the officer's reasonable conduct. It is a fact that the officer may take into account. There may be other facts. I don't know that much about--
Ruth Bader Ginsburg: But I'm just wondering why we can't have blanket rules for all these dangerous situations. What is it about the drug raid that distinguishes it from others if danger to the police officer is our standard?
Miguel A. Estrada: --It may be the case that there are other cases in which similar... in which a similar rule is warranted, Justice Ginsburg, but I think that the class of cases that we have here are significant in that we have the courts all over the country telling this Court that this is a class of cases in which there is a remarkable danger of violence, and a high danger that the evidence will be destroyed, and this Court--
William H. Rehnquist: You also identify... you have a warrant issued by a magistrate.
Miguel A. Estrada: --Well, that's right, and as I pointed out earlier in that other class of cases it is likely to be the case that the fundamental intrusion into the home has not been authorized.
Anthony M. Kennedy: You are suggesting a general standard, not a per se rule. Is that an appropriate characterization of your brief and of your argument?
Miguel A. Estrada: That is right, Justice Kennedy. All we're saying is that the standard that is offered by Mr. Karpe is so low that in the absence of any further information the officer's knowledge that the case involves drug-dealing will itself be a reasonable basis for a case-specific reasonable belief that there is danger to the officers.
Sandra Day O'Connor: Well, you're not supporting the Wisconsin rule in any event, the Wisconsin supreme court per se rule.
Miguel A. Estrada: No, we're not.
Sandra Day O'Connor: And would you support the rule if we were only dealing with situations where the magistrate had specifically determined they should enter without knocking? What about that?
Miguel A. Estrada: That is not a course that as I read this Court's cases is open to the Court, because it was an argument that was made in the Dalia case.
Sandra Day O'Connor: So the statutes in Nebraska and Utah to that effect presumably are invalid?
Miguel A. Estrada: No. They are not constitutionally required. In making the judgment that a no-knock entry may be okay, it is possible for a State or for the Federal rules to have that sort of a mechanism. My point is that it is not constitutionally required, because in the Dalia case this Court confronted that issue, whether the judge should authorize in advance an unannounced entry, and the Court answered that issue in the negative, so it may be a good--
Sandra Day O'Connor: Yes, but what about those States that do, by statute, provide that the magistrate will consider and determine whether or not there can be a no-knock entry? Now, if that's the scheme, then is it constitutional to have a per se rule?
Miguel A. Estrada: --It is... it likely is, if the judge has made a finding that that is a course that is warranted in the circumstances. My point was solely to say that that's not a course that can be required under the Fourth Amendment, because that is an issue that the Court has already considered in the Dalia case, and the answer was in the negative.
Anthony M. Kennedy: I'm curious to know, if the magistrate makes the determination that you must knock, directs the officer to knock as part of the warrant, and the officers see something that they think overrides the judgment, and they don't knock, that does not necessarily invalidate the search, does it?
Miguel A. Estrada: That is right, and let me take that as an opportunity to answer something that Mr. Karpe said. When the warrant was sought in this case it was in 1991, and at that time the State courts in this State had a rule that a mere showing that the case involves drug-dealing and an assertion that those cases are likely to be categorically dangerous was insufficient to authorize a judge to issue a no-knock warrant, so all that the judge in this case did was to say that the facts that are in this case had no bearing on whether a... whether the officers should make a no-knock entry. It is not that the judge made a determination under the right Fourth Amendment standard that the circumstances in this case did not justify a no-knock entry. Further--
Antonin Scalia: Mr. Estrada, what do you do about General Doyle's concern that it's fine to have this general rule, but it will always be controverted at the exclusion hearing, where the defendant will come in and say, well, you knew that we didn't have... you knew that we didn't have weapons.
Miguel A. Estrada: --Well, I think that in our view someone would not be entitled to a hearing unless he can point to objectively ascertainable facts that indicate that prima facie at least the conduct was clearly unreasonable. In the Federal system there are very few suppression hearings held, because unless someone is able to come forth with a prima facie showing that there is, in fact, a Fourth Amendment violation, one is not entitled to have a hearing so that one may inquire.
Antonin Scalia: Well, what does that require to show, that we didn't have weapons? In fact, we didn't have weapons.
Miguel A. Estrada: Well--
Antonin Scalia: And I say, you knew it. Is that enough to get a hearing?
Miguel A. Estrada: --Well, you would have to have a specific factual basis for the imputation that they knew it, and in the absence of that, no hearing would be required.
William H. Rehnquist: On whom is the burden of proof?
Miguel A. Estrada: In a search that is conducted under a search warrant, Mr. Chief Justice, the burden would be on the defendant. If a search is conducted in the absence of such a warrant, it would be on the Government to show that the conduct was lawful.
John Paul Stevens: Well, let me just take... say you're not in a drug case but a financial crime or something like that, and the police had a warrant, went in without knocking or announcing, and the defendant proved just that, that this was a financial crimes case, and they came in with a warrant, but they did not knock and announce. Would that have satisfied their burden?
Miguel A. Estrada: May I answer, Mr. Chief Justice?
Speaker: Yes.
Miguel A. Estrada: Under the Wilson case, given that the background rule is that they should not, yes.
William H. Rehnquist: Thank you, Mr. Estrada. Mr. Karpe, you have 4 minutes remaining.
David R. Karpe: In Wilson v. Arkansas, this Court gave the State courts an inch, the Wisconsin State court took a mile, drained the blood out of the meaning of Wisconsin... excuse me, of Wilson v. Arkansas. The instances where blanket rules have been applied by this Court don't apply. Michigan v. Summers regarded simply a detention while the search was going on. It wasn't even about the search. In United States v. Dunn, 480 United States 294 at page 301, footnote 4, this Court rejected a blanket rule even for curtilage of a house, and I made a mistake, we did not include this in the brief. In fact, it wasn't until I read the as-to-yet undistributed Wayne County amicus brief that I was made aware of the Dunn case. In Maryland v. Buie, this Court rejected a blanket rule involving a search of the house. If I could speak to the manner of drug storage in this particular case, yes, the drugs were in the bathroom, but behind a ceiling tile, wrapped up several times in different bags, and again, among the packaging there were 120 separate little ziplock gem packs. This rule is not to be given a grudging application by this Court. Then the blanket exception essentially swallows the rule. It applies to all sorts of offenses. In footnote 2 of a lower court opinion it refers even to maintaining a dwelling for use of drugs. I mean, it refers to obtaining drugs by contraband. One of the very important purposes of this rule is to avoid unreasonable error. Certainly we have to tolerate some police errors, but it must be errors of the police acting as reasonable people.
Ruth Bader Ginsburg: Mr. Karpe, suppose we were to take Wisconsin's fallback position that not in every drug case, but at least when the object of the warrant is a drug dealer, at least in drug dealer cases as opposed to houses known to have drugs, where you're dealing with a drug dealer, you can infer that there will be arms, you can infer that there's going to be an effort to destroy evidence, so why not... and that's a narrower rule than any drug case. Why won't that work?
David R. Karpe: Justice Ginsburg, that would apply to two college kids in a dorm room that doesn't even have a toilet that pass a joint back and forth. They're committing a felony in Wisconsin, distribution, and there's no--
Ruth Bader Ginsburg: But I'm narrowing it, as I think General Doyle did in the brief, to a known drug dealer. In the case of a drug dealer, somebody who distributes grand-scale drugs, drug dealers more often than not will have guns, and more often than not will try to destroy evidence if they have notice, so we'll narrow it... remove your two kids in a college dorm and just take the dealer.
David R. Karpe: --How about the single mother with six kids who's selling joints out the back door? Would that apply to her? Do we really want the police crashing in in that sort of situation?
Ruth Bader Ginsburg: No. I'm taking all those cases out, and we're concentrating on the dealer.
David R. Karpe: Well, I guess it's hard... it's hard perhaps to draw the line. The more drugs someone has, the harder it is going to be to destroy them. I think that the... that rule would have problems, big problems in application just to decide at what point and what quantity of drug are we going to decide that the rule would apply.
William H. Rehnquist: Thank you, Mr. Karpe. The case is submitted.