                   Authority of Federal Judges and Magistrates to Issue
                                  “No-Knock” Warrants
         Federal judges and magistrates may lawfully and constitutionally issue “no-knock” warrants where
           circumstances justify a no-knock entry, and federal law enforcement officers may lawfully apply for
           such warrants under such circumstances.
         Although officers need not take affirmative steps to make an independent re-verification of the
            circumstances already recognized by a magistrate in issuing a no-knock warrant, such a warrant does
            not entitle officers to disregard reliable information clearly negating the existence of exigent
            circumstances when they actually receive such information before execution of the warrant.

                                                                                               June 12, 2002

                              MEMORANDUM OPINION FOR THE CHIEF COUNSEL
                                 DRUG ENFORCEMENT ADMINISTRATION

             This responds to your memorandum seeking this Office’s opinion whether
         federal judges and magistrate judges have legal authority to issue so-called “no-
         knock” warrants. 1 In addition to considering the information and analysis con-
         tained in your memorandum, we have also solicited and received the views of the
         Department’s Criminal Division, which has both interest and experience in this
         area. 2
             After giving full consideration to these submissions, and having reviewed the
         pertinent statutes and case law, we conclude that federal district court judges and
         magistrates may lawfully and constitutionally issue no-knock warrants—i.e.,
         warrants authorizing officers to enter certain premises to execute a warrant without
         first knocking or otherwise announcing their presence where circumstances (such
         as a known risk of serious harm to the officers or the likelihood that evidence of
         crime will be destroyed) justify such an entry. It follows that federal law enforce-
         ment officers may lawfully apply for such warrants based on information showing
         such circumstances to be present. We further conclude that the issuance of a no-
         knock warrant by a neutral magistrate, while not conclusive on the issue, will
         generally reinforce the admissibility of evidence obtained through no-knock
         entries executed pursuant to such warrants under Leon’s good-faith exception to
         the exclusionary rule 3 and by fortifying the objective reasonableness of the police
         conduct. Even when authorized by such a no-knock warrant, however, a no-knock

            1
              See Memorandum for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal
         Counsel, from Cynthia R. Ryan, Chief Counsel, Drug Enforcement Administration, Re: Authority of
         Federal Judges to Issue “No-Knock” Warrants (Oct. 26, 2001) (“DEA Memorandum”).
            2
              See Memorandum for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal
         Counsel, from Patty Stemler, Chief, Appellate Section, Criminal Division (Dec. 11, 2001) (“CRM
         Memorandum”).
            3
              See United States v. Leon, 468 U.S. 897 (1984).




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             entry might nonetheless violate the Fourth Amendment if the officers have actual
             knowledge that the circumstances that justified the no-knock authorization no
             longer exist at the time the warrant is executed.

                                                         I.

                Your inquiry notes that it is the present practice of some United States Attor-
             neys’ offices to seek “no-knock” search warrants and recognizes that some federal
             magistrate judges issue such warrants. DEA Memorandum, supra note 1, at 2.
             Your memorandum also states that components of the Criminal Division have
             advised federal prosecutors that it is appropriate to seek no-knock warrants when
             the facts supporting a no-knock entry are known to exist at the time the warrant is
             sought. Id.; see also CRM Memorandum, supra note 2, at 1 (stating that the
             Criminal Division “recommends that we continue to seek such warrants on
             appropriate facts”). You also note that various States have enacted statutes that
             explicitly authorize judges to issue no-knock warrants, whereas a previous federal
             statutory authorization for the issuance of such warrants in controlled substances
             cases was repealed in 1974.
                You advise that DEA has assisted state and local police in the execution of state
             no-knock warrants and that DEA has been requested by a United States Attorney’s
             office to participate in the execution of a number of federal no-knock warrants.
             You further explain, however, that current DEA policy, as reflected in section
             6653.2.C of the DEA Agents Manual, is based on the contrary premise that
             “Federal law does not allow for the issuance of a ‘no-knock’ warrant.” DEA
             Memorandum at 3. Your memorandum therefore expresses concern regarding the
             legal accuracy of DEA’s current policy. You have requested that we address that
             concern in this opinion.
                In response to our request for its views, the Criminal Division has submitted a
             memorandum supporting the legality and constitutionality of no-knock warrants
             and recommending “that we continue to seek such warrants on appropriate facts.”
             CRM Memorandum at 1. In the Division’s view, the issue presented here “ulti-
             mately turns on the following question: Can an issuing magistrate sanction a
             constitutional manner of executing a warrant in the absence of a statute or rule that
             gives him authority to address the question?” Id. at 5. The Division answers that
             question in the affirmative, and further endorses the view expressed by the Eighth
             Circuit in United States v. Moore, 956 F.2d 843, 849 n.8 (8th Cir. 1992), that “the
             fact that a no-knock entry has been authorized by a neutral magistrate in a warrant
             required by statute can hardly be irrelevant to the reasonableness of that entry
             under the Fourth Amendment.”




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                                                            II.

                                                            A.

            As recognized in your memorandum, the Fourth Amendment imposes restrict-
         ions on the authority of federal law enforcement officers to enter a residence even
         when they have a valid search warrant based upon probable cause. As 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, sup-
                  ported by Oath or affirmation, and particularly describing the place
                  to be searched, and the persons or things to be seized.

         U.S. Const. amend. IV. In applying the Fourth Amendment, the Supreme Court
         has held that, even when they are conducting a search lawfully authorized by a
         warrant, officers must generally knock and announce their identity and purpose
         before entering a private residence to execute the warrant. See Wilson v. Arkansas,
         514 U.S. 927 (1995). The Court has stressed, however, that this general principle
         “was never stated as an inflexible rule requiring announcement under all circum-
         stances.” Id. at 934. On the contrary, there are well-established exceptions to the
         “knock-and-announce” requirement, primarily in situations where exigent
         circumstances make it necessary for officers to enter the premises without prior
         announcement for reasons of physical safety or in order to prevent the imminent
         destruction of evidence or contraband. See id. at 936.
            Apart from the Constitution, 18 U.S.C. § 3109 (2000) also addresses certain
         aspects of the execution of search warrants by federal officers. That section
         provides as follows: “The officer may break open any outer or inner door or
         window of a house, or any part of a house, or anything therein, to execute a search
         warrant, if, after notice of his authority and purpose, he is refused admittance or
         when necessary to liberate himself or a person aiding him in the execution of the
         warrant.” Id. (emphasis added). 4 The Supreme Court has made it clear, however,
         that the requirements and restrictions of 18 U.S.C. § 3109 are subject to the same
         well-recognized exceptions that apply under the Fourth Amendment. See United
         States v. Ramirez, 523 U.S. 65 (1998) (holding that section 3109 “includes an

             4
               Another statute regulating the execution of warrants is 21 U.S.C. § 879 (2000), which provides:
         “A search warrant relating to offenses involving controlled substances may be served at any time of the
         day or night if the judge or United States magistrate judge issuing the warrant is satisfied that there is
         probable cause to believe that grounds exist for the warrant and for its service at such time.” This
         statute plainly does not prohibit the issuance of no-knock warrants, but merely provides specific
         authorization for judges and magistrates to issue warrants that may be executed at any time of day or
         night.




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             exigent circumstances exception” and that the constitutional standard and section
             3109’s standard are the same). The Court’s decision in Ramirez also emphasized
             that, by its own terms, 18 U.S.C. § 3109 prohibits nothing. It is an authorizing
             statute, not one of prohibition. See 523 U.S. at 72.
                The general authority for the issuance of search warrants by federal magistrates
             and federal district judges is found in Rule 41 of the Federal Rules of Criminal
             Procedure. 5 Rule 41 does not address whether, or to what extent, officers must
             knock or otherwise announce their presence and purpose before executing a
             warrant authorized by the rule. See Fed. R. Crim. P. 41.
                Finally, another pertinent factor giving rise to this inquiry is the above-
             referenced provision in the DEA Agents Manual, which includes the following
             statements:

                        Federal law does not contain a provision for a “no knock” warrant.
                        Although some states still issue “no knock” warrants, DEA Agents
                        need to recognize that such warrants are actually no different than a
                        normal warrant with respect to the duty to knock and announce. The
                        duty to knock and announce before entering a residence is a matter
                        of Federal constitutional law, and the duty can be excused only by
                        showing that exigent circumstances actually existed at the time of the
                        search. DEA Agents must not under any circumstances participate in
                        a search warrant execution that fails to comply with the knock and
                        announce requirement unless they are aware of specific facts that
                        demonstrate that their safety will be compromised or evidence will
                        likely be destroyed if they do not effect an immediate, unannounced
                        entry to the residence.

             DEA Agents Manual § 6653.2.C. This language suggests that DEA agents have an
             independent responsibility to evaluate the circumstances existing at the time of

                 5
                     Rule 41(a) provides in relevant part:
                        (a) Authority to Issue Warrant. Upon the request of a federal law enforcement officer
                        or an attorney for the government, a search warrant authorized by this rule may be
                        issued (1) by a federal magistrate judge, or a state court of record within the federal
                        district, for a search of property or for a person within the district and (2) by a federal
                        magistrate judge for a search of property or for a person either within or outside the
                        district if the property or person is within the district when the warrant is sought but
                        might move outside the district before the warrant is executed and (3) in an investiga-
                        tion of domestic terrorism or international terrorism (as defined in section 2331 of title
                        18, United States Code), by a Federal magistrate judge in any district in which activi-
                        ties related to the terrorism may have occurred, for a search of property or for a person
                        within or outside the district.
             Fed. R. Crim. P. 41(a). Although Rule 41(a)’s authorization refers only to “federal magistrate
             judge[s],” courts have “uniformly assumed” that the authorization extends to U.S. District Judges as
             well. See United States v. Torres, 751 F.2d 875, 878 (7th Cir. 1984).




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         execution of every warrant to determine whether any emergency exists to justify
         entry without knocking. They may not, in other words, simply rely on the issuance
         of a no-knock warrant itself, according to the guidance of the Agents Manual.

                                                      B.

             We first address whether it is constitutionally permissible for courts or magis-
         trates to issue no-knock warrants.
             The Supreme Court first addressed no-knock warrants in Richards v. Wiscon-
         sin, 520 U.S. 385 (1997). There, the Court addressed the legality of a search
         conducted pursuant to a warrant (not a no-knock warrant) where the officers
         executing the warrant determined that the situation required a no-knock entry. The
         Court held that the Fourth Amendment does not permit a “blanket exception” to
         the knock-and-announce requirement in the case of all warrants executed in felony
         drug investigations. At the same time, the Court upheld the constitutionality of the
         particular no-knock entry at issue. More importantly for present purposes, the
         Court in dicta specifically expressed its approval of state court magistrates issuing
         no-knock warrants when they are authorized to do so under state law. As the Court
         explained:

                      A number of States give magistrate judges the authority to issue
                  “no-knock” warrants if the officers demonstrate ahead of time a rea-
                  sonable suspicion that entry without prior announcement will be
                  appropriate in a particular context. The practice of allowing magis-
                  trates to issue no-knock warrants seems entirely reasonable when
                  sufficient cause to do so can be demonstrated ahead of time. But, as
                  the facts of this case demonstrate, a magistrate’s decision not to
                  authorize a no-knock entry should not be interpreted to remove the
                  officers’ authority to exercise independent judgment concerning the
                  wisdom of a no-knock entry at the time the warrant is being execut-
                  ed.

         Id at 396 n.7 (emphasis added). In holding that the magistrate’s refusal to include
         “no-knock” authorization in the warrant did not itself render the officers’ subse-
         quent no-knock entry constitutionally unreasonable, the Richards Court empha-
         sized that, for Fourth Amendment purposes, “the reasonableness of the officers’
         decision . . . must be evaluated as of the time they entered” the premises to be
         searched, id. at 395.
            Following Richards, there is extensive federal case authority supporting the
         constitutionality of the issuance and use of no-knock warrants. In United States v.
         Ramirez, for example, the Supreme Court upheld the execution of a no-knock
         warrant obtained by federal officers against claims that the executing officers had
         violated both the Fourth Amendment and federal statutory restrictions. 523 U.S.



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             at 65. In so holding, the Court gave no suggestion that the issuance and use of the
             no-knock warrant was inappropriate or invalid. Numerous other federal cases have
             expressly cited and relied upon the above-quoted statement from Richards v.
             Wisconsin in upholding the constitutionality and legality of searches conducted
             pursuant to no-knock warrants. See, e.g., United States v. Tisdale, 195 F.3d 70, 72
             (2d Cir. 1999) (“Richards approved the issuance of no-knock warrants.”); 6 United
             States v. Spry, 190 F.3d 829, 833 (7th Cir. 1999) (upholding search conducted
             pursuant to no-knock warrant), cert. denied, 528 U.S. 1130 (2000); United States
             v. Mattison, 153 F.3d 406, 409 n.1 (7th Cir. 1998) (“A ‘no-knock’ search warrant
             allows the police to enter the residence without knocking and announcing their
             presence and purpose before entering the residence.”); United States v. Winters,
             No. 2:00-CR-590C, 2001 WL 670924 (D. Utah May 9, 2001) (issuance of a no-
             knock search warrant did not violate the Fourth Amendment); United States v.
             Penman, No. 2:00-CR-192C, 2001 WL 670922 (D. Utah May 3, 2001) (same);
             United States v. Mack, 117 F. Supp. 2d 935 (W.D. Mo. 2000) (upholding the
             validity of a search performed pursuant to a Missouri no-knock warrant based
             upon an affidavit establishing exigent circumstances for the search; the court also
             specifically held that the no-knock provision of the search warrant was constitu-
             tionally supported by reasonable suspicion). 7
                 In light of the clear authority in Richards v. Wisconsin and ensuing cases, we
             conclude that nothing in the Fourth Amendment prohibits federal magistrates from
             issuing, and law enforcement officers from seeking, a no-knock warrant when
             there are reasonable grounds to believe that circumstances justifying no-knock
             entry will exist at the time the warrant is to be executed.

                                                               C.

                Although Richards and ensuing cases confirm that the Fourth Amendment
             places no constitutional prohibition on no-knock warrants as a general proposition,
             they do not specifically address whether federal courts are authorized or permitted
             to issue such warrants under the powers assigned to them by federal law. The
             precedents discussed above generally involve warrants issued by state courts or




                 6
                   In Tisdale, the court also held that, even assuming that the exigent circumstances required for a
             no-knock search warrant were not present, the police officers’ reliance on the no-knock provision of the
             warrant was not objectively unreasonable, thus precluding suppression of the evidence seized during
             the no-knock search. See 195 F.3d at 71.
                 7
                   Other federal court decisions recognized the constitutionality of no-knock warrants prior to the
             Richards opinion. See, e.g., United States v. Singer, 943 F.2d 758, 759 & n.1 (7th Cir. 1991) (no-knock
             warrants held permitted under Wisconsin law because no statute specifically prohibited them).




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         magistrates, 8 and do not address whether, or to what extent, federal statutes
         authorize or permit the issuance of no-knock warrants by federal magistrates.
             1. 18 U.S.C. § 3109. We first consider whether 18 U.S.C. § 3109’s provisions
         authorizing officers to “break open any outer or inner door or window of a house”
         in executing warrants under certain defined circumstances should be construed to
         prohibit (by negative implication) the issuance or use of federal no-knock warrants
         in circumstances not encompassed by section 3109. Section 3109 expressly limits
         its door-and-window-breaking authorization to circumstances where either (a) the
         officers have been refused admittance after announcing their authority and
         purpose; or (b) forcible entry is necessary to “liberate” the officers or those
         assisting them in the execution of the warrant. We do not believe this statute’s
         particularized authorization for officers to break open doors and windows is
         properly construed as a prohibition against warrants authorizing no-knock entries.
         As the Supreme Court emphasized in United States v. Ramirez, section 3109 “by
         its terms prohibits nothing. It merely authorizes officers to damage property in
         certain instances.” 523 U.S. at 72. 9 As further held in Ramirez, moreover, to the
         extent that section 3109 might be construed to include an implied prohibition or
         restriction, it should also be construed as subject to the same “exigent circum-
         stance” exceptions applicable with respect to Fourth Amendment restrictions. Id.
         at 73. See also United States v. Tisdale, 195 F.3d at 73 (standards governing
         section 3109 and constitutional Fourth Amendment standards are the same). It
         follows that since the Fourth Amendment does not bar the issuance and use of no-
         knock warrants where exigent circumstances (defined under the standard adopted
         in Richards, see 520 U.S. at 394) are established, neither does 18 U.S.C. § 3109.
             2. 21 U.S.C. § 879. Both DEA’s and the Criminal Division’s submissions note
         that an earlier version of the “24-hour drug search” statute, 21 U.S.C. § 879, had
         expressly authorized the issuance and use of warrants authorizing officers to break
         open doors and outer windows without prior announcement of authority or
         purpose in certain searches for illegal drugs. See Comprehensive Drug Abuse
         Prevention and Control Act of 1970, Pub. L. No. 91-513, § 509, 84 Stat. 1236,
         1274, previously codified at 21 U.S.C. § 879(b) (1970). However, subsection (b)
         of the earlier statute, the portion that expressly authorized issuance of no-knock
         warrants and door-breaking authority under enumerated circumstances, was
         repealed in 1974 by a Senate amendment to an appropriations bill. See Pub. L. No.


              8
                In United States v. Ramirez, neither the Supreme Court’s opinion nor that of the Ninth Circuit
         specifies whether the warrant issued to the Deputy U.S. Marshal was issued by a federal or state court.
              9
                The Seventh Circuit made a similar point in United States v. Torres, 751 F.2d 875 (7th Cir. 1984).
         In upholding a federal district court’s power to issue a warrant authorizing television surveillance of
         terrorist “safehouses” despite the lack of explicit statutory authority to do so, the court observed: “It
         does not follow, however, that because Title III does not authorize warrants for television surveillance,
         it forbids them. The motto of the Prussian state—that everything which is not permitted is forbidden—
         is not a helpful guide to statutory interpretation.” Id. at 880.




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             93-481, § 3, 88 Stat. 1455 (1974). As pointed out in the DEA Memorandum, there
             is some indication in the legislative history of this repeal provision that at least its
             Senate sponsor intended the repeal to prohibit the issuance of no-knock warrants.
             See 120 Cong. Rec. 19,910, 19,911 (1974) (remarks of Sen. Ervin).10
                 This raises the question whether congressional removal of the special authori-
             zation for the execution of certain drug-search warrants contained in former 21
             U.S.C. § 879(b) (1970) should be equated with a general prohibition against no-
             knock warrants. We reject such an interpretation. Former section 879(b) was a
             narrow and carefully framed authorization respecting the execution of search
             warrants, limited to offenses involving controlled substances, that included
             authority to break open doors and windows under certain described circumstances.
             Like 18 U.S.C. § 3109, as recognized by the Supreme Court in Ramirez, section
             879(b) was an authorizing statute that by its terms “prohibit[ed] nothing.” 523 U.S.
             at 72. Given that fact, and particularly in light of the specialized and restricted
             nature of that statutory provision, we do not conclude that its repeal can be equated
             with, or construed as, a general statutory prohibition on no-knock search warrants.
             Cf. United States v. Torres, 751 F.2d at 880.
                 The actual issue, instead, is whether an express statutory authorization is even
             required for federal magistrates to include constitutionally permitted “no-knock”
             provisions in search warrants they are otherwise authorized to issue.
                 Existing judicial authority does not appear to specifically address this point. In
             United States v. Ramirez, for example, the Supreme Court upheld the execution of
             a no-knock warrant that was “sought and received” by a Deputy United States
             Marshal, see 523 U.S. at 68, but did not address the question of federal statutory
             authority for a court to issue such a no-knock warrant. In United States v. Singer,
             943 F.2d 758 (7th Cir. 1991), the court upheld the issuance and execution of a no-
             knock warrant issued by a state court. Although the court applied federal law
             because the case was a federal prosecution, it suggested that no-knock warrants
             were permitted under Wisconsin law because no statute prohibited them. Id. at 759
             & n.1 (“while the language of the [Wisconsin] statute does not specifically
             authorize no-knock warrants, it does not prohibit them either”). There would seem
             to be no apparent reason why a different rule of statutory construction would apply
             with regard to federal law. Similarly, in United States v. Mack, 117 F. Supp. 2d
             935, 941 (W.D. Mo. 2000), the court acknowledged that there was no Missouri
             statute expressly authorizing no-knock search warrants. Nonetheless, the court
             proceeded to uphold the validity of the no-knock provisions of a search warrant
             issued by a Missouri judge on the grounds that it was fully compliant with

                 10
                    The House Conference Report on the legislation also stated that it would “repeal the authority of
             a judge or magistrate to issue a search warrant (relating to offenses involving controlled substances)
             which authorizes, under certain circumstances, an officer to break and enter a building in the execution
             of the search warrant without giving notice of his authority and purpose.” H.R. Rep. No. 93-1442, at 4
             (1974) (Conf. Rep.), reprinted in 1974 U.S.C.C.A.N. 5974, 5976.




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         Missouri law and federal constitutional requirements. Id. at 942-43. As the
         Criminal Division points out, however, state courts are divided on the issue of
         whether judges or magistrates may issue no-knock warrants without explicit
         statutory authority.11
            Although we find no federal opinions resolving this precise issue, we conclude
         that a federal judge’s or magistrate’s general authority to issue warrants under
         Rule 41 of the Federal Rules of Criminal Procedure is sufficiently flexible to
         encompass no-knock authorizations. Indeed, there is substantial support in existing
         case law for such an understanding of the flexible authority provided by Rule 41.
            In United States v. New York Telephone Company, 434 U.S. 159 (1977), the
         Supreme Court held that a federal district court had the power to authorize the
         installation of pen registers (used to record the numbers dialed on a telephone
         without overhearing conversations) even though neither Rule 41(b) nor Title III of
         the Omnibus Crime Control and Safe Streets Act of 1968 specifically authorized
         such measures. After reciting Rule 41(b)’s express (but limited) authorizations for
         the search and seizure of property and contraband, the Court explained:

                  This authorization is broad enough to encompass a “search”
                  designed to ascertain the use which is being made of a telephone
                  suspected of being employed as a means of facilitating a criminal
                  venture and the “seizure” of evidence which the “search” of the tele-
                  phone produces. Although Rule 41(h) defines property “to include
                  documents, books, papers and any other tangible objects,” it does not
                  restrict or purport to exhaustively enumerate all the items which may
                  be seized pursuant to Rule 41. Indeed, we recognized in Katz v.
                  United States, which held that telephone conversations were protect-
                  ed by the Fourth Amendment, that Rule 41 is not limited to tangible
                  items but is sufficiently flexible to include within its scope electronic
                  intrusions authorized upon a finding of probable cause.

                     Our conclusion that Rule 41 authorizes the use of pen registers
                  under appropriate circumstances is supported by Fed. Rule Crim.
                  Proc. 57(b), which provides: “If no procedure is specifically pre-
                  scribed by rule, the court may proceed in any lawful manner not in-
                  consistent with these rules or with any applicable statute.”

         434 U.S. at 169-70 (citations and footnotes omitted).12


             11
                Compare State v. Cleveland, 348 N.W.2d 512, 518-19 (Wis. 1984) (no-knock warrants may be
         issued without express statutory authority), with State v. Bamber, 630 So. 2d 1048, 1050-51 (Fla. 1994)
         (no-knock warrants must be expressly authorized).
             12
                Rule 57(b), as invoked by the Court in New York Telephone in support of a federal court’s power
         to authorize procedures (such as the use of pen registers) not expressly authorized by the applicable




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                 A similarly flexible construction of the scope of judicial authority to issue
             special warrant provisions was adopted by the Seventh Circuit (per Judge Posner)
             in United States v. Torres. In Torres, the court held that a federal district court had
             authority to issue a warrant authorizing television surveillance of terrorist
             “safehouses” despite the absence of express statutory authority for that procedure
             in Rule 41 or federal statutes such as Title III. Noting that Congress’s overhaul of
             the federal criminal code in 1948 left the matter of search warrants “to be gov-
             erned by rule of court,” the Seventh Circuit stated: “This broad delegation suggests
             that Congress views the issuance of federal search warrants as standing on a plane
             with other procedural powers that courts traditionally have exercised without
             explicit legislative direction.” 751 F.2d at 879. Although the court cautioned that it
             “shall not pretend greater certainty than we feel” on the issue, the court concluded
             that federal courts may issue warrants for television surveillance and other “new
             types of search” without express statutory authorization. Id.
                 Although the issue is not entirely free from doubt, we believe the foregoing
             holdings and principles support the view that express statutory authority is not
             required for federal magistrates to issue search warrants authorizing no-knock
             entries when the government makes an adequate showing of exigent circumstanc-
             es.

                                                                D.

                Finally, we consider an additional question suggested by your inquiry and by
             the provisions of the DEA Agents Manual—namely, to what degree, if any, does
             the issuance of a no-knock warrant relieve officers of the necessity of determining
             whether the circumstances that justified inclusion of the no-knock provision still
             exist at the time of actual execution? As noted above, the DEA Agents Manual
             essentially takes the view that the issuance of no-knock warrants has no effect on
             an officer’s obligation to knock and announce before execution of a warrant unless
             the officer independently determines that circumstances existing at the time of
             execution satisfy constitutional prerequisites for an unannounced entry.
                In United States v. Singer, 943 F.2d 758 (7th Cir. 1991), where the court upheld
             a no-knock entry undertaken pursuant to a state no-knock warrant, the court
             framed and addressed this issue as follows:

                      Singer maintains that the officers’ execution of the warrant was
                      unconstitutional because the police officers were aware of facts sug-


             rule, has been slightly amended since that decision and now provides: “A judge may regulate practice
             in any manner consistent with federal law, these rules, and local rules of the district.” Fed. R. Crim. P.
             57(b). Rule 57(b) provides further support for federal no-knock warrant authority in that such authority
             appears to be “consistent with federal law”—i.e., consistent with the numerous federal court opinions
             upholding the constitutionality of no-knock warrants.




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                    gesting that no exigent circumstances existed to justify their unan-
                    nounced entry. To support this argument, he makes much of what the
                    officers did not encounter when they arrived at his home to conduct
                    the search. . . . As our previous discussion concluded, the officers’
                    no-knock entry was permissible because Singer’s possession of fire-
                    arms posed a threat to the safety of the officers. If, during the inter-
                    vening period between the warrant’s issuance and execution, the
                    police received reliable information that Singer no longer possessed
                    any firearms, then they would have been required to reevaluate their
                    plan to forcibly enter Singer’s home without first knocking and
                    announcing.

         Id. at 763 (emphasis added).13
             Although the Singer opinion indicates that the force of a no-knock warrant may
         be undercut by the police’s actual receipt of reliable information negating the
         existence of exigent circumstances, it does not follow that officers in possession of
         such warrants must necessarily and invariably undertake an independent re-
         investigation of those circumstances prior to execution of the warrant. Thus, in
         United States v. Spry, the Seventh Circuit held that “the district court correctly
         determined that the law does not require officers, after obtaining a no-knock
         warrant, to make an independent determination of the exigent circumstances at the
         time of entry.” 190 F.3d at 833 (emphasis added). Other cases emphasize that
         officers are generally entitled to rely on the validity of a warrant authorizing no-
         knock entry, including its underlying finding that exigent circumstances exist. See
         United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998) (“The matter was
         submitted to the judgment of a judicial officer who passed upon facts submitted,
         the existence of which has not been questioned. Under these circumstances the
         executing officers were clearly entitled to rely on the validity of the warrant.”)
         (citing United States v. Leon, 468 U.S. 897 (1984); United States v. Mack, 117
         F. Supp. 2d 935, 942 (W.D. Mo. 2000) (observing that “[t]he issuance of a no-
         knock search warrant potentially insulates the police against a subsequent finding
         that exigent circumstances, as defined by Richards, did not exist”); United States
         v. Rivera, No. CRIM. 00-6-B-C, 2000 WL 761976 (D. Me. May 15, 2000) (“The


             13
                  See also State v. Cleveland, 348 N.W.2d at 519, where the court stated:
                    But such prior authorization is in effect conditional; a magistrate cannot absolutely
                    authorize no-knock entry. A search warrant may be executed within five days after
                    issuance. Circumstances which justify noncompliance with the rule of announcement
                    when the warrant was obtained might change after the judge’s evaluation and before
                    the officer’s entry. If the warrant authorizes a no-knock entry, officers may forego
                    announcement unless between the time of the issuance of the warrant and its execu-
                    tion new information has come to the officers’ attention that would obviate the need to
                    enter without complying with the rule of announcement.




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                      Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants


             First Circuit has held that when a judicial officer issues a no-knock warrant, Leon
             is applicable. See United States v Hawkins, 139 F.3d 29, 32 (1st Cir. 1998).
             Specifically, the Court will not exclude evidence discovered pursuant to a no-
             knock warrant if the executing officers are objectively reasonable in their reliance
             on such a warrant, even if the judicial officer should have required a more
             particularized showing of exigent circumstances.”).
                Although it might be argued that there is some tension between the above-
             quoted holdings in Singer (a no-knock warrant’s authority can be vitiated by the
             officers’ intervening receipt of reliable information that the factual basis for
             exigent circumstances no longer exists) and Spry (officers are not obligated to
             make an independent determination of exigent circumstances when they execute a
             no-knock warrant), we think the decisions are easily reconcilable and that the
             distinctions drawn by the cases are reasonably clear. Although officers need not
             take affirmative steps to make an independent re-verification of the circumstances
             already recognized by a magistrate in issuing a no-knock warrant, such a warrant
             does not entitle officers to disregard reliable information clearly negating the
             existence of exigent circumstances when they actually receive such information
             before execution of the warrant.14

                                                                    PATRICK F. PHILBIN
                                                                Deputy Assistant Attorney General
                                                                    Office of Legal Counsel




                 14
                    Our conclusion is consistent with the Supreme Court’s observations in Leon regarding an
             officer’s permissible reliance on a magistrate’s determination of probable cause when executing a
             search warrant. As the Court stated: “In the ordinary case, an officer cannot be expected to question the
             magistrate’s probable cause determination . . . . ‘[O]nce the warrant issues, there is literally nothing
             more the policeman can do in seeking to comply with the law.’” 468 U.S. at 921 (quoting Stone v.
             Powell, 428 U.S. 465, 498 (1976)). The Court added, however, that the officer’s reliance on the
             magistrate’s probable cause determination must be “objectively reasonable” for purposes of the good-
             faith exception to the exclusionary rule. Id. at 922.




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