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As Minnesota lawmakers and the city of Minneapolis debate new limits on no-knock search warrants following the killing of Amir Locke by a Minneapolis police officer, one point of contention has been whether to try to ban them completely or allow them in extreme or limited circumstances.

The example most often given of such an extreme circumstance: a hostage situation.

On Thursday, House Democrats detailed a bill that would sharply curb no-knock search warrants, but it does have a key exception: courts can approve a no-knock entry if there is clear evidence of significant and imminent risk of death or harm to someone confined without their consent. Democrats said the exception could allow police to use no-knock warrants in situations just short of an emergency.

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But the DFL measure drew criticism from two police chiefs one who opposes no-knock raids and one who supports them who said the carve out may be unnecessary since officers dont actually need a no-knock search warrant if someones life is in danger.

Last year, state Rep. Athena Hollins, DFL-St. Paul, introduced a bill that would have limited no-knock search warrants in situations tied to first-degree murder, hostage taking, kidnapping, terrorism or human trafficking.

Legislators instead approved a less restrictive policy that required officers to get approval from at least two people in department management before applying for a no-knock search warrant. The legislation also banned no-knock raids tied to drug possession for personal use.

State Rep. Athena Hollins

In a hearing of the House Public Safety and Criminal Justice Reform Finance and Policy Committee on Thursday, Hollins said many people have called for a complete ban on this dangerous tool. However, she said stakeholders did agree that (if) there were situations where theres an active significant harm occurring it would be appropriate for law enforcement to enter without a notice.

When Locke was killed, Minneapolis policy governing search warrants required officers to either knock and wait before entering someones home or breach a door and then announce themselves as police just before entry. But the policy also included a clause outlining what it called exceptional circumstances when announcing an officers presence would create an imminent threat of physical harm to someone that allowed police to enter a home without any type of announcement.

And while the city said officers must now knock and announce themselves before a forced entry in most circumstances, they can still enter without announcing their presence if theres an imminent threat of harm to an individual or the public, according to a city press release.

At the hearing Thursday, Mendota Heights Police Chief Kelly McCarthy, who also chairs the states police licensing and standards board, said legislators should just ban no-knock search warrants entirely.

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McCarthy said banning no-knock search warrants doesnt mean an end to forced entry on warrants, it just means anyone present for those warrants has a reasonable opportunity to comply with the commands of the officers.

Mendota Heights Police Chief Kelly McCarthy

William Blair Anderson, chief of police in St. Cloud, told the public safety committee that he opposes sharp limits on no-knock warrants. But he also objected to the exception for extreme or exigent circumstances, calling it superfluous.

If I approach a dwelling and I have all of the information thats in this language that somebody is in imminent danger of death or bodily harm I dont need a warrant of any kind, Anderson said.

Two legal experts also said police dont need a search warrant if someone is in imminent danger.

Joseph Daly, professor emeritus at Mitchell Hamline School of Law, said warrants are required to protect against unreasonable search and seizure protected by the Fourth Amendment to the U.S. Constitution. But Daly said there are many exceptions outlined by courts. One is for hot pursuit, Daly said, which is something like following a bank robber who ran away from a crime scene and into a persons house. Another is emergency situations, like a hostage situation, where responders have to rescue someone, Daly said.

Rachel Moran

On Friday, Hollins said in an interview that her bill is not aimed at having officers get a no-knock warrant in exigent circumstances.

We dont want the police to go to court and apply for a warrant if theres an active shooter shooting out of their window, Hollins said.

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But, Hollins said, there might be a narrow list of situations that might not be considered exigent circumstances so an officer could not enter immediately without announcing themselves where police could instead get a no-knock search warrant under her legislation. And we thought that in these circumstances if there was any chance that would not be an exigent circumstance we would still want them to go in front of a judge and ask for a warrant, she said.

For instance, Hollins said if human trafficking is happening and its a known location and we know the actors and who is going in and out but we would still prefer there to be a no-knock warrant in that situation.

And where somebody might be put in great bodily harm but were not really sure when exactly that would happen, Hollins said.

She also said in really extreme cases like a sort of Waco situation where we know this is happening, we know this is potentially deadly even for the people inside of that location and we want to go in and we dont want to have to knock to do that. (In the 1993 Waco, Texas case, federal agents raided a compound belonging to the Branch Davidian religious group, which was suspected of stockpiling illegal weapons, though there were also concerns for child welfare.)

Hollins also said political reality was at play: some House legislators did not feel comfortable with a bill banning no-knock search warrants with no exceptions.

Hollins no-knock measure was approved by the public safety committee on Thursday on a 10-9 vote that was largely along party lines. DFL Rep. John Huot of Rosemount voted no, and was the only legislator to break from their party. The Republican-led Senate has so far been skeptical of major restrictions to no-knock search warrants, meaning the bill may not gain traction if it passes the House.

Hollins also said while her bill limits search warrants, which are aimed at finding evidence of a crime, arrest warrants are governed by a different Minnesota statute that is not amended by her legislation.

Hollins said her understanding is that its possible police could still be granted a no-knock arrest warrant without such risk of imminent harm if her legislation passed.

Moran said arrest warrants are generally governed by the same standards as search warrants. Officers must get one from a judge and must similarly explain their rationale. She also said search warrants can cover situations where the search is for a person, meaning Hollins bill could apply when officers are arresting people.

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Daly, the Hamline Mitchell professor, also said search warrants and arrest warrants are often applied for at the same home, meaning sometimes the regulations under Hollins bill might apply. Theyre asking we want to go in and seize him, arrest him, and we also want to because hes a drug dealer and we want to search his house, Daly said.

Still, Moran said of Hollins bill: That is a possible concern, that it doesnt prevent no-knock entries into homes for the purpose of arrest.

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Why the Legislature is considering carving out exceptions for no-knock entries that already exist - MinnPost

The Fourth Amendment, or Amendment IV of the United States Constitution is the section of the Bill of Rights that protects people from being searched or having their things taken away from them without any good reason.

If the government or any law enforcement official wants to do that, he or she must have a very good reason to do that and must get permission to perform the search from a judge.

The fourth amendment was introduced into the Constitution of the United States as a part of the Bill of Rights on September 5, 1789 and was ratified or voted four by three fourths of the states on December 15, 1791.

The text of the Fourth Amendment which is found in the United States Constitution and the Bill of Rights is the following: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.

In Colonial America, laws were written in order to help the English earn money on customs. The justices of the peace would do this by writing general warrants, which allowed general search and seizure to happen. Massachusetts wrote a law in 1756 that banned these warrants, because tax collectors were abusing their powers by searching the colonists homes for illegal goods.

These general warrants allowed any messenger or officer to search a suspected place without any evidence. It also allowed them to seize people without even saying what they did wrong or showing evidence of their wrongdoings. Virginia also banned the use of general warrants later due to other fears. These actions later led to the addition of the Fourth Amendment in the Bill of Rights.

Today, the Fourth Amendment means that in order for a police officer to search and arrest someone, he or she will need to get permission or a warrant to do so from a judge. In order to get a warrant, the police officer must have evidence or probable cause that supports it. The police officer, or whoever has the evidence, must swear that it is true to his or her knowledge.

The Fourth Amendment applies to the government, but not any searches done by organizations or people who are not doing it for the government.

Some searches can be done without a warrant without breaking the law, like when there is a good reason to think that a crime is happening.

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4TH AMENDMENT (Fourth Amendment) Summary, Definition ...

Courts have recognized that the Fourth Amendment protection from unreasonable searches and seizures applies to searches and seizures in hotel and motel rooms. Certain exceptions allow for warrantless searches and seizures, including consent. In broad terms, the consent exception means that a party's agreement, actual or implied to a search and/or seizure renders a warrant unnecessary.

In general, during a guest's stay at the hotel, only the guest may consent to a search of his or her room. While hotel staff members may access the room for cleaning and maintenance during the guest's stay, they are not authorized to allow police to enter the room. Thus, during a guest's tenancy at the hotel, employees should not allow police to enter the guest's room without a search warrant.

Fourth Amendment protections do not apply after a guest's tenancy expires, at which point those employees with proper authorization from the hotel may aid the police and consent to a search of the room. While this seems like a straightforward principle, it is not always clear when a tenancy actually expires for the purposes of the Fourth Amendment. When faced with this lack of clarity, hotels can take certain actions to ensure careful compliance with the Fourth Amendment by issuing and consistently following policies regarding (a) guest checkout and (b) eviction of guests.

I. Checkout Policy and Procedure

A guest's Fourth Amendment rights expire once the checkout time has passed. However, this may be modified by the hotel's practices and guest communications. Consequently, hotel policies and practices may extend Fourth Amendment protections past the guest's pre-arranged checkout time. For example, if a hotel gives a guest permission to stay until a later checkout time or has a practice of acquiescing when a guest stays past the posted checkout time, Fourth Amendment protections last until that later check-out time. Courts have found that after a hotel provided specific guests with such an allowance, those guests "reasonably believed that the hotels would allow them to do so again, permitting them to retain a privacy interest in their rooms." Courts realize that most hotels have a pattern or practice of allowing guests some leeway regarding the checkout time.

Each Fourth Amendment inquiry concerning guests checking out of hotels hinges on the specific facts of the case. A hotel that has a clear checkout policy and consistent procedures will provide both staff and guests with certainty as to when a guest's Fourth Amendment protections have expired.

Fourth Amendment protections depend on the guest's reasonable expectation of privacy in his or her room, meaning that hotels must state their checkout policies in a manner that would not confuse a reasonable person. An effective communication policy and procedure could involve a notification about the checkout time to the guest upon check-in, the issuance of a reminder to the guest several hours before checkout, and the posting of the checkout time in each room. Further measures may include contacting the guest in the event that checkout time has passed. In these ways, a hotel can unequivocally state that a guest's tenancy and accompanying Fourth Amendment protections expire at a certain time.

A hotel should do its best to be consistent in communicating and enforcing its checkout policy. In the absence of consistency, guests might be considered reasonable in expecting their Fourth Amendment rights to extend beyond checkout time. If a hotel wants to retain the option to make exceptions to its general checkout time, it should provide a system for staff members to record these extensions so that they know whether or not each guest is protected by the Fourth Amendment.

II. Eviction Policy and Procedure

A justifiable ejection will also extinguish a guest's Fourth Amendment protections. A guest's tenancy expires after the hotel has identified grounds for eviction and taken affirmative steps to repossess the room.

Examples of what courts have found to be valid grounds for eviction include:

The hotel must then act to take back possession of the room, which ends the guest's expectation of privacy. The Fourth Amendment continues to protect a guest until the hotel staff takes action to commence eviction. The following actions have been identified as sufficient to constitute the commencement of eviction, and thus the extinguishment of Fourth Amendment protections:

In order to create and follow an eviction policy that promotes compliance with the Fourth Amendment, a hotel should identify behaviors that justify eviction. This requires consultation of the law, including any statutes that govern hotel policies. The hotel should then train its staff to recognize and respond to behavior that triggers eviction. A hotel should also provide guests with its eviction policy or communicate in some way the types of behavior that could trigger an eviction. Finally, in the event of an eviction, the hotel must take steps to communicate to the guest that he or she is being evicted. If the hotel has created any doubt or confusion as to whether the behavior under consideration triggers eviction, or does not clearly communicate that the guest is being evicted, Fourth Amendment protections may continue to apply. Therefore, as with the suggestions for checkout procedures discussed above, consistency and clarity will help to ensure a situation in which hotel employees and guests know when the Fourth Amendment no longer applies to protect guests.

In general, hotel staff should not allow police to enter a guest's room without a warrant. However, if the guest's tenancy has expired because the checkout time has passed or the guest has been evicted, hotel staff may provide consent for a police search. Hotels should implement polices and procedures that allow guests and staff to know, with certainty, the circumstances under which a guest's tenancy expires.

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Guest Room Privacy and the Fourth Amendment: Duff on ...

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Fourth Amendment Rights and Searches at School: Frequently ...

During oral argument at the Supreme Court in December over Mississippis abortion ban, Justice Sonia Sotomayor laid bare a fundamental truth: Theres so much thats not in the Constitution.

Her point is a deep one, and salient to the abortion debate: The text of the Constitution does not explicitly affirm the right to abortion; no one disagrees with that. But the Constitution protects far more than what it literally describes. Unwritten ideas necessarily guide even the strictest readings of the text, despite what some originalist jurists like to believe.

Adrian Vermeule: Beyond originalism

This can be seen in just about every major constitutional debate, as I explore in my new book, The (Un)Written Constitution. Take, for example, the recent decision by the Courts six conservatives to strike down the Biden administrations COVID-vaccine mandate. The ruling was based on the idea that Congress cannot delegate major questions to administrative agencies, in this case the Occupational Safety and Health Administration. The major-questions doctrine may be justified by a certain understanding of the separation of powers, as Justice Neil Gorsuch argued in his concurring opinion, but it is not found in constitutional text. Even the Courts power to strike down laws as unconstitutional is not specified by constitutional text. Indeed, the overhwelming majority of constitutional disputes that come before the Courtincluding abortion and free speech and the right to bear armsdepend on ideas and understandings that cant be found in the Constitution.

The arguments put forward in the Mississippi abortion case (Dobbs v. Jackson Womens Health Organization) are a perfect study in how unwritten ideas drive our readings of the text. The dispute over abortion revolves around the due-process clause of the Fourteenth Amendment, which stipulates that no state can deprive any person of life, liberty, or property, without due process of law. While Mississippi insists that a womans right to abortion has no basis in the Constitution, Elizabeth Prelogar, the solicitor general for the United States, maintains that the right is contained in the word liberty. How do we determine whether liberty includes the right of a woman to terminate her pregnancy?

It requires, in short, going beyond the text. This is inescapable because the text alone doesnt specify the meaning of enumerated rights such as the freedom of speech and the free exercise of religion, let alone the meaning of abstract rights such as liberty and the privileges or immunities of citizens. Whats more, going beyond the text is practically demanded by the Ninth Amendment, which explicitly acknowledges that there are specific, inviolable rights not named in the Constitution: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. But how do we determine the scope of abstract rights or which unenumerated rights, if any, should be constitutionally protected?

An exchange between Justice Clarence Thomas and Solicitor General Prelogar highlights this difficulty. Justice Thomas wanted to know just what right Prelogar was rooting abortion in. Was it liberty? Autonomy? Privacy? And just where did she find this right in the Constitution? The problem, Thomas asserted, was that the right she was defending was too abstract. When we talk about the Second Amendment or the Fourth Amendment, he said, we know what were talking about because its written. Its there.

But the liberty that Prelogar was referring to is written; it is there in the text. And the fact that liberty is more abstract than the rights found in the Second or Fourth Amendments doesnt obviate the Courts obligation to define its proper scope, just as the Court does with any other constitutional right.

Consider the First Amendments prohibition against abridging the freedom of speech, or of the press. What does that freedom entail, exactly? Does it prohibit Congress from preemptively blocking speech that it deems unprotected? What about punishing such speech after the fact? Does it allow an opposition party or private citizen to criticize the sitting government? This last question was the subject of a heated debate in the 1790s, less than a decade after the First Amendment was ratified. While there was ready agreement that the text protected the freedom of speech and of the press, there was profound disagreement on the scope of these freedoms.

At the time, most sitting Supreme Court justices held that the First Amendment allowed the government to punish speech that brought public officials or the government into disrepute. Presiding over the trial of a critic of President John Adams, Justice Samuel Chase argued that any political minority must surrender up their judgment once a government was selected, and that private opinion must give way to public judgment, or there must be the end of government. In contrast, James Madison argued that interpretations like Chases prohibited the right of freely examining public characters and measures, and of free communication among the people which has ever been justly deemed the only effectual guardian of every other right. The disagreement between figures like Chase and Madison lay primarily in their disparate understanding of the logic of popular government, not in their literal reading of constitutional text. Their debate required using unwritten ideas to outline the substance and scope of the freedom of speech, or of the press, just as we have to outline the scope of liberty in the Fourteenth Amendment.

Originalists insist that we can accomplish this only by reading the text as it was understood by those who framed and ratified it. They turn to history and linguistic conventions from the period under investigation to retrieve the original public meaning of the Constitutions words. What would they have meant to an ordinary reader at the time of the texts ratification? As Justice Amy Coney Barrett has argued, the original public meaning of the Constitutions text, and it alone, is law. Yet this argument depends on unwritten ideas about the nature of the Constitutionon a disputed theory of what the Constitution isnot on the text.

Harry Litman: Originalism, divided

Even if we follow the original public meaning, how do we know whether we should be governed by the expectations of those who ratified the Fourteenth Amendment or by the general principles they brought into being? The text doesnt tell us. Does the Fourteenth Amendment apply only to rights that were clearly protected when the amendment was ratified, or does it apply more generally? Does it apply to marriage only as it was understood in 1868? What about interracial marriage? Same-sex marriage? A right to make decisions about procreation? A womans right to terminate her pregnancy? Even among originalists, debate persists on all of these issues.

Some originalists claim that we are bound by the concrete expectations of those who framed and ratified the Constitution. Justice Samuel Alito took something like this position during oral argument in Dobbs, when he asked whether abortion was a right, liberty, or immunity in 1868, when the Fourteenth Amendment was adopted. If the people who ratified the amendment in 1868 did not expect liberty to include a womans right to terminate her pregnancy, this logic goes, then that right is not protected.

If we follow the expected application of the amendment, it would almost certainly not protect interracial marriagewhich wasnt federally legalized until a century after the amendments ratificationlet alone same-sex marriage. Similar questions come up with regard to gender. Should women be entitled to the privileges or immunities of citizenship, including the right to make choices about their occupation, despite the fact that many of those who framed and ratified the Fourteenth Amendment did not necessarily expect it to apply to women in this way? (A few years after the amendment was ratified, the Supreme Court suggested that the answer was no. It upheld an Illinois law that denied the suffragist Myra Bradwell the right to practice law precisely because she was a woman: The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.)

If we follow the general principles that the text brought into beingas opposed to their original applicationthey may entail obligations that those who framed and ratified the amendment did not understand or even consider. Steven Calabresi, a leading originalist and former clerk to Justice Antonin Scalia, argues that this isnt our problem. We should not be concerned, he says, with how those who ratified the Fourteenth Amendment applied it in particular cases; nor should we be concerned with how they expected it to apply. We should be concerned instead with the principle or concept that they brought into being.

Scalia himself was skeptical of this approach. He contended that the word liberty in the Fourteenth Amendment protects only what is enumerated in the Bill of Rights, as well as rights that have historically been protected by American law. In Dobbs, the Mississippi solicitor general followed Scalias reasoning, arguing that because the right to abortion is not specified in constitutional text, nor supported by history, it is not constitutionally protected. In doing so, he drew on Scalias dissenting opinion in the 1992 case that reaffirmed the central logic of Roe v. Wade, where the justice asserted that abortion was not protected by the Constitution because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

What looks like an indisputable claim firmly grounded in constitutional text is, in fact, a particular reading of the text driven by Scalias desire to confine its more open-ended termssuch as liberty in the Fourteenth Amendmentto specifically enumerated rights. Otherwise, Scalia feared, such terms would become a boundless source of additional, unnamed, unhinted-at rights, definable and enforceable by us, through reasoned judgment.

In his attempt to limit the Constitutions more abstract clauses, Scalia was following the New Deal jurist Hugo Black, who referred to himself as a constitutional literalist. Black famously argued that the Fourteenth Amendment incorporates the rights enumerated in the Bill of Rights, applying themand no othersto the states. Accordingly, the liberty protected by the Fourteenth Amendment refers to rights articulated in the first eight amendments. Black pointed to his historical research to justify this argument, but even more important to his thinking was the belief that reading the text in this manner provided a salutary limit on judicial discretion. Like Scalia, Black worried that open-ended and abstract constitutional clauses invited judges to read their political preferences into the Constitution.

Yet the Fourteenth Amendment does not say that the liberty protected by due process refers only to what is articulated in the Bill of Rights. Those who framed the Fourteenth Amendment could have easily said as much, but they didnt. Some scholars have reasonably argued that this is the best reading of the amendment, but those arguments inescapably depend on unwritten ideas about how to interpret liberty in the Fourteenth Amendment.

How we determine the scope of libertywhether we root it in particular historical understandings, limit it to rights enumerated elsewhere, or take it as a more general principleis not dictated by constitutional text. This is just as true when we turn to supposedly concrete rights such as freedom of speech. It is true of numerous cases currently before the Court: Does religious liberty require states that fund nonsectarian private education to also fund religious education? Does the right to bear arms include a right to concealed carry? These cases all turn on the justices unwritten ideas.

My point is not to argue for or against any particular method of constitutional interpretation; it is, rather, to insist that a large majority of the issues faced by the Court cannot be resolved simply by appealing to constitutional text. There is no avoiding this. All approaches to constitutional interpretation rely on unwritten understandings. Going outside of the text is essential to reading the Constitution. This does not mean that anything goes; it means that we have the burden of giving our reasons for the constitutional judgments we must make.

Link:
What the Constitution Doesn't Say - The Atlantic