The Dangers of “No-Knock” Search Warrants
Bou Bou Phonesavanh, the baby that was severely injured by a flash-bang grenade during the execution of a “no-knock” warrant in Habersham County, was released from the hospital today. Although the child’s injuries are severe and he has a long road to recovery, I am sure the family is happy that he can at least now go home.
There is an ongoing investigation into the execution of the search warrant, and the use of the grenade, by the Georgia Bureau of Investigation. I understand that the focus of the investigation concerns whether the officers acted appropriately in executing the “no-knock” warrant and whether a “no-knock” warrant was even necessary.
What is a “no-knock” warrant? It’s pretty simple. “No-knock” warrants allow officers to use force to gain entry into a residence without giving any notice or announcing their entry (in other words, without knocking).
For most search warrants, police must first knock and announce that they have a search warrant before they can enter into a residence. If they knock and the residents refuse to let them in, the police can then use force to gain entry. That’s the law in Georgia.
Over the years, however, Georgia courts have allowed police to execute a warrant without giving any notice at all before using force to enter the residence. Judges grant them this permission by indicating on the warrant that it is a “no-knock” warrant.
In order to get one of these “no-knock” warrants, police have to show the judge that knocking and announcing their presence would be dangerous or would lead to the destruction of evidence. The information must be specific. Police cannot rely on their general experience in drug cases or use vague statements about how evidence could possibly be destroyed. Police cannot just say that the execution of a search warrant in a drug case is generally dangerous.
In Bou Bou’s case, police officers obtained a “no-knock” warrant on the basis of their assertions that a suspected drug dealer was living there, selling drugs from there, and was dangerous. Police also said that this drug dealer was known to possess firearms.
Unfortunately, the affidavit supporting the search warrant is not readily available. I do not know what specific facts were contained in that affidavit to support the “no-knock” warrant. If the “no-knock” warrant was just based on nonspecific claims that the person was “dangerous,” then the judge should not have granted a “no-knock” warrant.
Whether the police officers can be criminally prosecuted for the injuries to Bou Bou will depend upon (1) whether they had a reasonable basis for requesting the “no-knock” warrant and/or (2) whether they acted recklessly in executing the warrant. If they did not have specific facts to support that warrant, or if their conduct was reckless in executing the warrant, then they could be prosecuted for civil rights violations.
Bou Bou’s family may also be able to file a civil suit against these officers if they can show that the officers knowingly mislead or withheld material information from the judge when they were requesting the “no-knock” warrant. They may also have a good civil case if they can show that the officers were reckless in executing the warrant, perhaps by using the stun grenade. Unlike the police officers, the judge who signed the warrant cannot be held liable. Judges are completely immune from such lawsuits.
This case is a tragic example of what happens when law enforcement officers with inadequate training and experience use violent force in executing what would have otherwise been a simple search for drugs. Because the law is so vague on what justifies a “no-knock” warrant, I think the courts and the legislature should be very specific as to exactly what facts the police must prove to a judge before they are able to obtain a “no-knock” warrant.
Bou Bou is not the first person who was injured through the execution of a “no-knock” search warrant and, unless we greatly restrict the use of these warrants, he won’t be the last.
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.