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80 Stat. 1438

AN ACT To amend Title 18 of the United States Code to enable the courts to deal more effectively with the problem of narcotic addiction, and for other purposes

SEC. 301. For the purposes of this title, the term

(a) "Narcotic addict" means any individual who habitually uses any narcotic drug as defined by [section 4731 of the Internal Revenue Code of 1954] the Controlled Dangerous Substances Act of 1969, so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such narcotic drugs as to have lost the power of self-control with reference to his addiction.

68 Stat. 484

AN ACT To provide for the revocation or denial of merchant marine documents to persons involved in certain narcotics violations

That when used in this Act

(a) The term "narcotic drug" shall have the meaning ascribed to that term by [paragraph (a) of the first section of the Narcotic Drugs Import and Export Act, as amended (21 U.S.C., sec. 171(a))] the Controlled Dangerous Substances Act of 1969, and also shall include marihuana as defined in [section 3238(b) of the Internal Revenue Code] the Controlled Dangerous Substances Act of 1969.

23 Stat. 1291

AN ACT To provide for the seizure and forfeiture of vessels, vehicles, and aircraft used to transport narcotic drugs, firearms, and counterfeit coins, obligations, securities, and paraphernalia, and for other purposes

SEC. 7.

*

(d) The term "narcotic drug" means any narcotic drug, as now or hereafter defined by the [Narcotic Drugs Import and Export Act, the internal revenue laws, or the regulations issued thereunder] Controlled Dangerous Substances Act of 1969, or marihuana as now or hereafter defined by the Marihuana Tax Act of 1937 or the regulations issued thereunder; Controlled Dangerous Substances Act of 1969;

ADDITIONAL VIEWS OF MESSRS. ERVIN AND HART

The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application (Mr. Justice Brennan speaking for the Court in Miller v. U.S., 357 U.S. 301).

We strongly favor the general purposes of Controlled Dangerous Substances Act of 1969. In our opinion, drug abuse is one of the most serious problems facing our nation, and the Subcommittee on Juvenile Deliquency should be complimented for dealing with this difficult challenge. We believe that the proposed bill makes some very commendable changes in our laws relating to the severity of penalties which cover drug violations. Mandatory minimum sentences for drug violations are virtually eliminated and the committee has readjusted the laws dealing with marihuana to distinguish the young, casual user, the continuous user, and the professional criminal. The bill creates a Commission to study the effects of marihuana and its result, we hope, will be to provide a better understanding with respect to the dangers of this drug or the lack of them.

Despite our general approval of the bill, we feel that in its effort to facilitate law enforcement, the committee went too far in dealing with search warrants involving felony drug offenses by including section 702(b) in the bill which allows an officer to enter a home without notice if the issuing magistrate is satisfied that there is probable cause to believe that if such notice were given the evidence sought in the case may be easily and quickly disposed of or that danger to the life or limb of the officer or another may result.

We opposed this section in the Judiciary Committee on both constitutional and policy grounds. However, section 702 (b) was retained in the bill by a vote of 6-5; even though, 8 of the committee members have now joined in opposing the section. We hope that the Senate will support my amendment to strike section 702(b) from the bill.

Beyond constitutional objections, we feel the section is controversial enough to warrant a serious examination, which it has not received from the Juvenile Deliquency Subcommittee, to study its possible effects on police practices and law enforcement efficiency; and we believe the Senate should agree to strike the provision. In the event the Senate fails to strike section 702(b), the bill should be recommitted to the Judiciary Committee with instructions to reopen this question with full hearings on it.

CONSTITUTIONAL CONSIDERATIONS

The rule that governmental authorities should announce their presence before entering a home is deeply rooted in our common law. It is generally thought to have originated in the 1603 decision in

Seymayne's case (77 Eng. Rep. 194 (K.B. 1603)). In that case, the court said in dictum:

In all cases when the King is party, the sheriff (if the door be not open) may break the party's house, either to arrest him, or to do other execution of the King's process, if otherwise he cannot enter. But before he breaks in, he ought to signify the cause of his coming, and to make request to open door ***

Down through the years, there has been a clear judicial application in the common law of the rule of announcement to service of warrants for arrest and warrants for searches. The rule of announcement has been embodied in statutory form in half of the states and recognized by judicial decisions in the others. However, beyond the legal tradition of receiving announcement, we personally believe that the principle is embodied in the fourth amendment to the U.S. Constitution. The fourth amendment states:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Since the exception to the announcement principle, section 702 (b), which we are considering is embodied in a possible Federal statute, the principle would have to be constitutionally founded to negate the statute inspite of its common law hearings. Because a Federal statute, (18 U.S.C. 3109) requires announcement, the Supreme Court has never been called upon to determine the constitutional basis of this principle regarding Federal officers. The Court has, however, considered the announcement question with regard to state officers in Ker v. California (374 U.S. 23 (1963)), and for this reason, the Ker case has to be closely examined.

The Ker opinion was very unclear with the Justice dividing on several issues; but on balance, the case clearly pronounces the announcement principle a Federal constitutional requirement. For Justices, in an opinion by Justice Brennan, flatly took the position that the announcement principle was implicit in the fourth amendment and voted to overturn the convictions below because the unannounced entry was not justified by exigent circumstances. Four Justices, in an opinion by Justice Clark, voted to affirm the convictions not because State officers were not bound by a Federal constitutional announcement requirement but because "in the practical circumstances of this case, the officer's method of entry was not unreasonable under the Fourth Amendment * * *" The position of the ninth Justice, Justice Harlan, was that the States should not be bound by the same standards of search and seizure as is the Federal Government: so, his vote in Ker is no denial that the rule of announcement is constitutionally mandated for Federal officers.

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Thus, it is very clear that at least eight members of the Court in Ker, the only case in this area, considered the announcement principle a constitutional requirement of the fourth amendment.

Of course, common law exceptions have been created to the announcement rule. Justice Brennan summarized these exceptions in Ker v. California, as "(1) where the persons within already know of the officers' authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted."

(1)

It is with regard to authorization in section 702 (b) for a "no knock" provision if "there is probable cause to believe that if such notice were to be given the property sought in the case may be easily and quickly destroyed or disposed of ***" which raises the most serious constitutional problem. This clause is ambiguous. Presumably the "may be *** easily and quickly destroyed" refers to the nature of the property sought by which it lends itself to easy destruction; that is, the clause means the property "can be easily destroyed" rather than in the circumstances of the particular case it "might be easily destroyed." Thus, if the property sought is marihuana or heroin which can easily be washed down a sink or flushed down a toilet, the magistrate could with little more being shown insert in the warrant a “no knock" authorization.

Of course, the clause might mean that the officers have to present to the magistrate particular information which leads them to reasonably conclude that the occupants of a dwelling have specifically resolved to effect disposal in the event of police intrustion or have made specific preparations in that regard. But it can also be read as meaning merely that, given the easy destructibility of the material sought and its incriminating nature as evidence, a reasonably prudent law breaker "is likely" to make every effort to destroy it. Thus, the statute will greatly expand the existing common law exception to the announcement principle.

We believe that the statements of Justice Clark and Justice Brennan in the Ker case preclude this latter rationale. Justice Clark's statement is more ambiguous, but it clearly does not go that far, and the facts of the case would suggest that the constitutionality of any statute used in such a way would be placed in doubt.

The facts in the Ker case are these: State officers had observed conduct occurring between Ker and a narcotics dealer exactly paralleling that observed the previous night when an undercover officer had bought narcotics from the dealer. The officers attempted to follow Ker's car but it made a U-turn in the middle of a block and they lost it. They then proceeded to Ker's apartment building, obtained a pass key from the manager, and entered the apartment surreptitiously, discovering Ker in the living room, his wife in the kitchen, and the marihuana in plain view.

After constitutionally enshrining the announcement principle, the Court in Ker proceeded to consider whether or not the judicial officers at the time of the arrest could find exigent circumstances justifying an authorization to break without notice. In other words, did the facts in

Ker relate a reasonable and constitutional exception to the announcement principle? Justice Clark viewed the case as presenting exigent circumstances. He said:

Here justification for the officers' failure to give notice is uniquely present. In addition to the officers' belief that Ker was in possesion of narcotics which could be quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police.

Although Justice Clark cited the easy destructibility of the materials sought, it is evident from the quoted paragraph and the context of the entire opinion that it was not this fact alone or primarily that justified the officers' conduct. It was rather that the officers could reasonably have believed from Ker's conduct that he knew he was under surveillance and probably subject to imminent arrest. His "furtive" conduct in losing them could and did reasonably suggest to the officers that Ker's intention would be as rapidly as possible to destroy the evidence which could convict him. On this set of facts and reasonable beliefs there was thus activated two exceptions to the announcement rule. The first is that if objective facts and reasonable conclusions drawn therefrom lead officers to believe that suspects are in the process of destroying evidence they can break and enter without complying with the announcement rule or any other such restriction. The second exception is the commonsense one that if one's identity, authority and purpose are already known to the person within you need not waste your time telling him what he already knows. From Justice Clark's statement of facts and discussion of the issues, while somewhat hazily presented, it seems clear to me that the opinion must be read as grounded on these established exceptions and to lend no support to the constitutionality of section 702(b).

Justice Brennan, on the other hand, would have been even more restrictive. He would permit no exception to the announcement rule, whether it related to the destruction of evidence, the escape of the suspect, or danger to others, that did not turn in some way upon the facts or the probability that the occupant of the dwelling was aware of the officer's presence, identity, and purpose. This view would obviously not allow the insertion of a "no knock" authorization into a warrant by the magistrate because at that stage of the proceedings none of the exigent circumstances justifying failure to give notice could be present.

Presumably, under the Clark view there are a few instances in which the state of known facts at the time of the issuance of the warrant could justify the insertion of a "no knock" authorization. But this would be a distinctly minority case established only upon a particular showing as in Ker and not upon the easy destructibility of the evidence sought or the class of violators involved. Yet, this could hardly be what the proponents of section 702(b) have in mind. We believe the "easy destructibility" of the evidence standard in this proposed law is intended to allow the insertion of a "no knock” authorization in every warrant issued for the seizure of narcotics. Such authority, even if the accused were a known criminal, would

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