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Judge rules police must knock first by Paul Lefebvre

GUILDHALL — An Essex County District Court judge has gone against the grain of a recent U.S. Supreme Court decision by ruling that police in Vermont must first knock and announce their presence before entering a residence to serve a search warrant.

Judge Robert Bent found that State Police and members of the Northern Drug Task Force violated a state constitutional safeguard when they entered an Island Pond home last fall without knocking.

As a result, drugs seized in the raid cannot be used as evidence in the case.

In handing down his ruling, Judge Bent relied heavily on a provision in the Vermont Constitution to protect citizens against illegal search and seizure.

“That particular provision is invoked to protect citizens of this state from the ‘ebbs and flows’ of the United States Supreme Court in this area of criminal procedure and in many instances provide greater protection than its federal counterpart,” wrote the judge.

The decision was warmly applauded by David Williams of St. Johnsbury, the defense attorney in the case.

“It’s a great decision,” he said, noting that traditionally courts have suppressed evidence when the knock first law was violated.

In June, however, in a five-to-four vote, the U.S. Supreme Court ruled that suppression is not a remedy for knock and announce violations.  Rather, it said there were civil remedies to redress such wrongdoings.

But the ruling coming out of Guildhall this week rejects that conclusion.

“The exclusionary remedy should remain in full force and effect, at least in our small corner of the nation,” wrote Judge Bent.

Attorney Williams said he would bet that the judge’s decision is one of the first, if not the first, reaction among states to the recent federal ruling.

“The problem is not that the police aren’t acting in good faith, but someone is going to get hurt,” he said. “You know how people are about their privacy in the Kingdom.  It’s the old don’t tread on me, and we’re losing that bit by bit.”

According to Essex County court records, on October 12, six police officers prepared to serve a search warrant on a Railroad Street home in Island Pond.  The plan called for the officers to arrange themselves at the front door in a “stack formation,” or one behind the other.  Three wore masks so as not to reveal their identities as undercover officers.

As the lead officer got ready, however, the door unexpectedly opened, according to his testimony.

“Believing he had lost the element of surprise he yelled, State Police with a search warrant, and immediately entered the home.”

There were children and adults inside, and at a later hearing two adults and one child testified that no one from the inside had opened the door, according to the judge’s account.

Police entered with drawn weapons and placed the adults on the floor and handcuffed them.

In defending the police’s no-knock entry, Assistant Attorney General Cathy Norman argued that their entry was reasonable under the circumstances.  In her brief she noted that the Supreme Court has identified three areas when such entries are permissible:

“When officers have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances would be (1) dangerous or (2) futile, or that it would (3) inhibit the effective investigation of a crime by, for example, allowing the destruction of evidence.”

In the Island Pond case, argued Ms. Norman, the no-knock entry “was justified on grounds of futility and the suspected presence of drugs that supported issuance of the search warrant.” 

Ms. Norman, who is on vacation this week and unavailable for comment, further argued that the entry “in this case was carried out in accordance with standard practice used by the Vermont State Police and police departments nationwide.” 

But Judge Bent found that the circumstances in the Island Pond case did not override the state’s constitutional safeguards of privacy.

“The knock and announce doctrine requires, unless there is some exigency, a period of time, albeit a brief one, during which the inhabitants may acknowledge the police presence and give expression of their willingness for entry,” he wrote.  “The unreasonableness of immediate entry is actually heightened if police can see through an open door that their suspect is present and not reaching for a weapon or running to destroy evidence.”

In praising the judge’s ruling to suppress the evidence, roughly four ounces of marijuana, defense attorney Williams said Tuesday there must be checks and balances.

“The only effective deterrent to police misconduct is to suppress evidence.  If courts aren’t willing to suppress, police aren’t going to comply with the rights we all have,” he said.

“If there’s no deterrent, we’re going to be left with a society where privacy rights are not going to be respected, or maybe even recognized.” 

A former attorney with the St. Johnsbury law office of Zuccarro, Willis, and Bent, Judge Bent was appointed to the bench by Governor Jim Douglas in February