circumstances and the conditions are very carefully prescribed, and it is our duty as legislators to always insist that even when we say someone will be sought out by the law, and will be gone after by Government, that it be carefully and narrowly restricted to achieve the purpose as best we can, within the framework of the Constitution.

But there are still some who say: "Well, pragmatically, the drug problem is so serious that we can't stop on all these nuances; we have got to bite the bullet, and go ahead."

Let me advance one pragmatic argument to those proponents. And that is the reaction of the average citizen-and I invite you gentlemen, who are certainly in that respect law-abiding citizens, I put myself in that picture. I don't even own a gun-but if somebody came tearing through my door at night, without any warning of who they were, or what they were doing there, I would not assume it was a policeman, and I would fight like a tiger to defend my family, and so would most American citizens. This kind of a procedure, when you take into account that there are 90 million weapons in the households of America today, is an invitation to shoot-outs with the police, and there are going to be a lot of dead policemen, and a lot of dead citizens, and a lot of violence by firearms if this kind of a provision is passed.

Let me say one last thing, gentlemen, and I will close. We are here today talking about giving the power to Federal officers in the field of narcotics, but our unique federal system has always operated so that when the Federal Government puts in a particular type of procedure, it is almost an invitation to State governments to emulate that procedure.

So that today, we are talking about a no-knock provision for Federal agents on narcotics, but if it is adopted by the Congress, we will have this kind of procedure in almost every State in the country, probably for a lot more purposes than drugs, and I say that the Constitution, the policy, and the pragmatic reasons dictate that we ought to be opposed to this, and we ought not let this piece of legislation get caught up in the toils of what I consider a very bad provision.

Thank you for your time, and I would be glad to answer any questions you have.

(Mr. Mikva's prepared statement follows:)

STATEMENT OF HON. ABNER J. MIKVA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Mr. Chairman, distinguished members of the Subcommittee, I appreciate the opportunity to appear before the Subcommittee.

I am not a doctor; I will not deal with the medical aspects of the drug control bills you are considering. I have had some experience in the field of criminal law and procedure. And there is one provision in H.R. 13743 which deals solely with a matter of criminal procedure: the no-knock warrant authorization.

For ten years I served on the Illinois House of Representatives Judiciary Committee; for two years I was chairman of that Committee. I presided over the comprehensive revision of the Illinois criminal code which was recently enacted into law. I am now a member of the Juidiciary Committee in the House. I have never in all this experience heard a convincing argument made for the kind of no-knock provision which is being urged upon you. I appear today to oppose this provision contained in Section 702 of H.R. 13743.

CONSTITUTIONAL OBJECTIONS

The Constitutional questions surrounding the no-knock concept are troublesome a fact which should alert us to the need for extreme care in legislating in this area. The reason that the Supreme Court has not been called upon at this late date to discuss whether an announcement of purpose and authority when serving a warrant is a constitutional requirement is simple such a requirement is specifically embodied in federal statutes. Since a federal officer is-or always has been-required by statute to announce his purpose and authority, there has been no need to decide whether such announcement is constitutionally required for federal officers. In the years since the Supreme Court applied the Fourth Amendment's requirements to the states in Mapp v. Ohio, 367 U.S. 643 (1961), one case has dealt with the question of whether announcement is a constitutional requirement as to the states, Ker v. California, 374 U.S. 23 (1963). Because of a split among the Justices and a number of separate opinions, it is difficult to tell whether a majority considered announcement of purpose and authority a constitutional requirement. On balance it appears that a majority did so decide.

As the Court pointed out in Ker, the constitutional announcement requirement already contains three important exceptions, exceptions which in my opinion already sufficiently protect society's and the policeman's interest in "efficient" searches. Those exceptions to the announcement requirement, as described in Ker, are "(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 justified the officers in the belief that an escape of the destruction of evidence is being attempted." (Ker, supra, at 47.)

When you are being asked to do here is to expand this third exception, not on the basis of what the officers on the scene knows, but simply on the basis of the nature of the contraband sought in the search. Rather than carefully limiting the announcement exception to situation based on the particular facts of a specific situation, section 702 of H.R. 13743 would authorize wholesale issuance of no-knock warrants based merely on the nature of the contraband sought. To justify such a sweeping authorization of intrusive government behavior, to bring us so perilously close to violating the Constitution, there should be overwhelmingly strong policy reasons. But there are not. Let's look at the policy arguments.

POLICY OBJECTIONS

Proponents of this no-knock provision argue that it must be enacted because it is "necessary" to effective law enforcement. We would do well to remember the words of Justice Jackson in response to this argument from necessity:

"We meet in this case, as in many, the appeal to necessity. It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our constitution to place obstacles in the way of too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment." (U.S. v. Di Re, 332 U.S. 581, 595 (1948).)

Moreover, the argument from necessity is not viable simply because it proves too much. The proponents of a no-knock search warrant procedure argue that it would be easier for the police to apprehend violators of the narcotics laws. And the elimination of the requirement for a warrant altogether would make it even easier. The same would be true in order to apprehend gamblers who might destroy the evidence after an announcement, or in order to apprehend prostitutes, and homosexuals, and fornicators, and secret conspirators, and on and on. The list is almost endless. Today the Bureau of Narcotics and Dangerous Drugs makes its special plea. Next week it will be the FBI arguing the "necessity" of special procedural rules for anti-subversive investigations or for counterespionage. The following week the organized crime task force will appear to urge its special case. Then the Treasury Department for counterfeiters and income tax evaders.

When pressed to justify the no-knock procedure, its advocates inevitably fall back on a curious argument of non-necessity. After arguing that the provision is essential to efficient enforcement of narcotics laws, no-knock proponents then

turn around and indicate that the measure will not be used very often. They point to the experience in New York State where authorities used no-knock warrants only 12 times in a single year after they were authorized by the legislature. Noknock advocates can't have it both ways, it seems to me. If no-knock is "necessary," then why wasn't it used more often? If it isn't really "necessary," as the New York experience seems to indicate, then why should Congress authorize it anyway? Is the apprehension of 12 pieces of evidence worth this kind of inroad on our liberty?

Another argument of no-knock advocates is that once a search has been authorized, why restrict the method of the police in executing the warrant? Since the suspect will be discommoded anyway, what matter if his abode is entered without announcement? These arguments show a peculiar insensitivity to the way our system of criminal procedure operates. The emphasis in our system has always been on how the government treats its citizens-and this applies especially to stages of investigation after search or arrest. Thus the Fourth Amendment not only controls when a search warrant may be obtained, but how it may be executed and what objects may be seized after the warrant is obtained. A case decided just last year, Chimel v. California, 395 U.S. 752 (1969), limited the search power once the police were already admitted to the suspected premises. The greatness of our Bill of Rights lies not only in what it prevents the government from doing to the citizens, but in how it requires the government to treat its citizens even when the government is allowed to act. This is really the central question here: how will the government treat its citizens.

AN INVITATION TO SHOOT IT OUT

Despite the constitutional objections and the policy problems, there may still be some who believe that the few additional narcotics pushers who will be caught under this new procedure are worth the price. Let me discuss one more factor which it seems to me should deter even the most zealous no-knock advocates. The reaction of the average citizen to an unexpected attempt to break in to his home or apartment is a simple one: to fight like hell. Add to this the fact that there are now some 90 million firearms in 60 million households throughout this country. In this situation, a no-knock provision is an invitation to a shootout with the police. It will result in more dead policemen, more dead citizens, and more firearms violence in America. As Senator Ervin pointed out in the Senate, if you approve the no-knock procedure, you are authorizing the police to do something which will give homeowners in many states valid grounds to shoot the intruders in self-defense under their local laws. I simply can't believe that this increased violence will further the cause of effective law enforcement in our country.

WHAT KIND OF SOCIETY WILL WE HAVE?

Mr. Chairman, if it is not too presumptuous, what I would like to suggest to you is that the question you decide when you consider the no-knock procedure urged upon you here is really a very basic question. It is what kind of society are we going to have in this country. Let's not kid ourselves. Everytime we tighten the law enforcement net for the guilty, we are going to catch some of the innocent. Everytime we allow our concepts of decent law enforcement to be compromised in the interests of law enforcement efficiency, we make America a less desirable place to live.

For years we have told ourselves that unlike the communist countries of Eastern Europe, America has never had citizens who quake at the thought of a midnight knock on the door by all-powerful police agents. What you are being asked to do today is to insure that that knock will never come-but that the search and police intrusion will occur even without such a warning.

The tide is running very strong these days in favor of "tough" anticrime legislation. Members may fear criticism if they do not support hard-line law and order proposals. But I urge you to look beyond the present crisis in law enforcement. I urge you to think of a time ten or fifteen years hence when we have finally conquered the scourges of narcotics addiction and criminal violence, which we can do by devoting sufficient money and manpower to the problems. In that future time when the fear of citizens about violent crime has been reduced, who among us will wish to claim credit for having given federal agents the authority to enter a citizen's home without announcement? Who will want to be associated with a law which has eroded our citizens' traditional protection from intrusive government behavior?

In the long view, history will judge this country not on whether it was able to solve a few more narcotics cases, or arrest a few more dope pushers. Surely the ultimate value of our democratic experiment in America will be judged by the degree of liberty which our citizens experience, by the extent to which our people remain free from all-pervasive government surveillance which characterizes so many other countries of the world.

I hope that you will reject the no-knock warrant procedure which the Administration has recommended. It is probably unconstitutional as a matter of law; it is certainly unwise as a matter of public policy. Most important, it is one more step in the erosion of our traditional liberties. If we are a great nation, it is those liberties enjoyed by our citizens-not our efficiency in catching and convicting dope peddlers-which make us great. I hope we will not compromise that greatness in the interest of this dubious claim to more "efficient" law enforcement.

Mr. ROGERS. Thank you very much. We appreciate your giving us your thoughts on this, because it is a very serious proposal, that the committee will go into carefully.

Dr. Carter?

Mr. CARTER. I am certainly pleased to hear by distinguished colleague give us this presentation today, and I think there is a great deal of truth in what he says. I have heard the same feeling voiced by other Members of this House.

In fact, a no-knock procedure comes home to everyone. The idea that someone may invade your home at night, without your knowledge of it, and in my area of Kentucky it would just mean there would be some deaths, I am afraid, in many cases.

However, we do have a great problem, and this, of course, is to be a limited area, just for the search for narcotices.

It is a great problem, catching the people with the narcotics at hand. Of course, if the no-knock procedure is not followed, and they knock on the door, then the culprits, the ones who have the narcotics, can very easily dispose of them. They are easily disposed of by being flushed down a toilet, or similar methods. And this presents a great problem to enforcement officers.

The drug problem is great, and is getting greater, and as my distinguished colleague has often said, he wants to be part of the solution and not part of the problem.

And I would like to know what is the solution? How can we get these people who have the narcotics in such a situation?

Mr. MIKVA. Well, let me say this, Doctor. I appreciate those kind words.

I think that there are many, many other provisions of this bill which I consider excellent, and before you came in, I made it clear I was limiting myself solely to this no-knock provision.

First of all, under present procedures, an officer has the right, once he has identified himself and knocked, if he feels that someone is destroying the evidence, or is trying to escape, he has the right to use whatever force is necessary at this point to break in the door and come in.

So that without any changes in the present procedure, we can catch some of the narcotics on hand.

But secondly, careful preparation of a case, and careful preparation of a search and an arrest, has allowed the prosecution of some of the largest dope peddlers in this country; sometimes, even without the actual possession of the narcotics at the time of the raid.

In fact, when you look at a no-knock in its practical aspects, Congressman, what you have to say is that by and large, it is aimed at the small pushers. It is more aimed at the addict pusher, rather than the wholesaler, or the large operator, who you get in a lot of different ways, as I say, sometimes without even finding him with the stuff on hand, but merely tracing the evidence of his being involved in the shipments, of being involved in the financing, being involved in the distribution.

This, as I say, is more aimed at the addict pusher, and I would like to catch him with the goods on hand.

We are constantly having to balance the interests of efficient law enforcement against our traditional liberties. I can only remind you what I am sure you have heard many times before. Italy had very efficient law enforcement under Mussolini, but they paid a very high price for it.

The Soviet Union today brags about their efficient law enforcement, but they pay a very high price for it.

It is a price that we as a people have traditionally been unwilling

to pay.

Mr. CARTER. Again, Mr. Chairman, I want to compliment the distinguished gentleman, who happens to be a Phi Beta Kappa, and a former clerk of one of our Supreme Court Justices, upon his presentation; it truly is a great one, and as I believe Pilate said one time, "Almost I am persuaded."

Thank you, Mr. Chairman.
Mr. ROGERS. Thank you.
Mr. MIKVA. Thank you.
Mr. ROGERS. Mr. Skubitz.

Mr. SKUBITZ. Thank you, Mr. Chairman.

Mr. Mikva, I want to join my colleagues in commending you upon your statement. I believe you said you were a former peace officer? Mr. MIKVA. No, I spent time in the legislature. I spent time as a law clerk, but I must confess that I have never worn a star.

Mr. SKUBITZ. I do appreciate your observation regarding this legislation, but frankly, I am getting a little weary of legislators always trying to determine constitutional questions, and the Supreme Court legislating.

I have a feeling that perhaps the Justice Department feels that this bill is constitutional, and so I think what we ought to do is get away from this question of constitutionality, leave that to the courts. Mr. MIKVA. Thank you very much.

I might say in connection with this peace officer problem, though, I am genuinely concerned about the safety of our police officers, if this kind of a provision came through. This does trouble me.

Mr. SKUBITZ. I agree.

Mr. ROGERS. Let me just ask you one thing. It was testified to by the Justice Department that in the common law, a police officer who fears for his safety, or fears that the evidence is being destroyed, may now enter, without knocking.

Now they must make a very strong showing to the court, if they make such an arrest, as a result of that, and they must show that all of the facts at the time, presently existing, gave them reason to be