            IN THE COURT OF CRIMINAL APPEALS
                                     OF TEXAS

                                       NO. 1437-98




                   GREGORY CHARLES WICKWARE, Appellant

                                             v.



                                THE STATE OF TEXAS


        ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
                     FROM THE FIFTH COURT OF APPEALS
                             DALLAS COUNTY



       Per Curiam.



                                       OPINION



       On appeal from his conviction for possession with intent to deliver more than 400

grams of cocaine, the appellant presented apoint of error that the police officers' entry into
his residence violated the Fourth Amendment because they did not knock and announce their

entry. See generally Wilson v. Arkansas, 514 U.S. 927 (1995).
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                                                                                 Wickware - 2

      The Court of Appeals placed the burden on the appellant to show that the police

conduct in knocking down his door as they shouted, "Police," was unreasonable. Wickware

v. State, No. 05-95-01767-CR, slip op. at 7 (Tex. App. — Dallas June 17, 1998) (not

designated for publication). The court held that the appellant had not satisfied his burden

since an officer gave two reasons for this method of entry: to protect the officers and to

preventthe drugs from being hidden or flushed down the toilet. Id. at 8.

       In making these holdings, the court did not take account of the more recent decision

of the Supreme Court in Richards v. Wisconsin, 520 U.S. 385 (1997). The Richards Court

disapproved aper se exception to the "knock and announce" factor of the Fourth Amendment

for all drug searches. The Court said:

               [I]n each case, it is the duty of a court confronted with the question to
       determine whether the facts and circumstances of the particular entry justified
       dispensing with the knock-and-announce requirement.
               In order to justify a "no-knock" entry, the police must have a reasonable
       suspicion that knocking and announcing their presence, under the particular
       circumstances, would be dangerous or futile, or that it would inhibit the
       effective investigation of the crime by, for example, allowing the destruction
       of evidence. This standard — as opposed to a probable cause requirement —
       strikes the appropriate balance between the legitimate law enforcement
       concerns at issue in the execution of search warrants and the individual
       privacy interests affected by no-knock entries. Cf. Marylandv. Buie, 494 U.S.
       325, 337 (1990) (allowing a protective sweep of a house during an arrest
       where the officers have "a reasonable belief based on specific and articulable
       facts that the area to be swept harbors an individual posing a danger to those
       on the arrest scene"); Terry v. Ohio, 392 U.S. 1, 30 (1968) (requiring a
       reasonable and articulable suspicion of danger to justify a pat-down search).
       This showing is not high, but the police should be required to make it
       whenever the reasonableness of a no-knock entry is challenged.

Id, at 394-95 (emphases added).
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       The appellant's petition for discretionary review is granted, the judgment of the Court

of Appeals is vacated, and the case is remanded to the Court of Appeals for further

consideration of this point of error.



En banc.


Delivered January 13, 1999.

Do not publish.
