Thoughts about Late Night Knock and Talks
by Eric S. Snow, Senior Instructor of Criminal Justice, Radford University, E-mail: esnow@radford.edu
As mentioned in the previous article, the events of the Saal case occurred in late 2017 and the case was decided by the Virginia Court of Appeals in late 2020. In March 2021, section 19.2-56 of the Code of Virginia, which regulates search warrants, was amended to limit the execution of search warrants at an abode, or residence, to the hours between 8am and 5pm without approval of a judge or magistrate, preferably a judge according to the Code, or if the scene was secured and occupied by an officer prior to 5pm.[1] This limitation was likely in response to the officer involved shooting of Breonna Taylor in Kentucky.[2]
The timing of the Saal case decision prior to the change in the Code makes me wonder if the Court of Appeals would have ruled in the same manner if it was deciding the case after March 2021. There are obvious differences between them. For example, a knock and talk is much less intrusive than an announced entry of a search warrant execution. Section 19.2-56 specifically requires an officer to “provide audible notice of his authority and purpose reasonably designed to be heard by the occupants of such place to be searched prior to the execution of such search warrant”.1 A citizen has the right to refuse to answer the door during a knock and talk, but doing so during a search warrant execution will result in police entry and authorized damage to property if forced entry is required.
The requirement to execute a search warrant at a home between 8am and 5pm, or have specific approval, seems to be aimed at protecting citizens and officers from harm cause by a resident firing at an officer who they mistakenly believe is a criminal breaking into their home to cause injury. Even with the stark differences of the scenarios, it is feasible that future court decisions could apply the elements limiting search warrant execution to knock and talks. Similarly, how do attempts to serve arrest warrants factor into the discussion? There are not currently any limitations on when an arrest warrant service can be attempted at a residence, but do similar safety issues as with executing a search warrant not apply to arrest warrant services as well? It will be interesting to see what our legislature undertakes on this issue in the future. In my opinion, it will likely take a high-profile event and public response, like the Breonna Taylor case, before the issue is considered.
[1] https://law.lis.virginia.gov/vacode/title19.2/chapter5/section19.2-56/
[2] https://www.nytimes.com/article/breonna-taylor-police.html