Bill heads to conference committee to sort out differences between House and Senate versions.
RICHMOND-The Virginia General Assembly is one vote away from banning no knock warrants. The Senate signed off on the concept Friday mainly on party lines, roughly a month after the House did the same. The only problem is that the two versions have some key differences, which will have to be hammered out in conference committee before the bill goes to Gov. Ralph Northam.
As it stands, HB5099 would significantly change the way law enforcement agencies handle warrants. First, the entire “no knock” practice would be banned. Law enforcement officers would have to clearly state who they are and why they’re outside. That means giving their name, the agency they work for and making it clear they have a search warrant before entering the building. Beyond that, there would be a time constraint.
“[The warrant] shall be executed only in the daytime unless a judge or magistrate, if a judge is not available, authorizes the execution of such search warrant at another time,” the bill states.
The version adopted Friday gets specific with a timeframe. Unless officers can convince a judge otherwise, all search warrants would have to be served between the hours of 8 am and 5pm.
Now let’s be clear: we said search warrants. This does not change anything for arrest warrants. There is an interesting exemption, however. If a search warrant is for “the withdrawal of blood,” the time limit doesn’t apply, according to the bill.
“A search warrant for the withdrawal of blood may be executed at any time of day,” it states.
If you’re wondering about that last sentence, think about DUI arrests. Officers need a signed search warrant in order to get a blood sample in those cases.
Members Dispute Need For No Knock
The main argument Friday focused on if these restrictions were necessary. Republicans argued this would handicap police, while Democrats said it would help police and residents. Republicans also argued that officers should be allowed to serve warrants with no time limit.
“For the most part, [night’s] when the criminal activities are taking place,” said Sen. William DeSteph (R-Virginia Beach). “That’s when the warrant needs to be served, if you’re going to catch the criminals conducting that activity. This is going to be putting more law enforcement officers in danger.”
Sen. John Edwards (D-Roanoke City) responded that nighttime raids are more dangerous. However, he pointed out the bill does allow for nighttime events, as approved by a local judge.
Edwards referenced the Breonna Taylor case in Kentucky. Police officers killed Taylor in March when executing a warrant. She was asleep in bed when police broke down the door. Her boyfriend, believing these plainclothes officers were robbers, opened fire. The officers fired back and ended up killing Taylor.
“This doesn’t happen often but it does happen,” Edwards said. “The reason for this bill is to make sure it doesn’t happen in Virginia.”
Where did no knock come from?
In most cases, law enforcement officers have to announce their presence before entering. The Supreme Court made this clear in the 1958 case Miller vs. United States. But the federal government stepped in and made an exception in the 1970s, arguing 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.” That quote comes from a paper written in 2002 by Patrick Philbin, then the Deputy Assistant Attorney General at the US Department of Justice. By 1974, however, Congress scrapped the practice. It was repealed by a Senate amendment to an appropriations bill.
The no knock concept didn’t stay dead for long, as Congress revived it in the 1980s as part of the war on drugs. While it’s hard to trace all cases from the ‘80s until now, a look at records from 1999 to 2020 show 16 controversial events involving no knock warrants and at least 40 deaths, including police and civilians.
Opponents say bill is too subjective
As debate stretched through Friday afternoon, lawmakers argued the bill was too subjective. Sen. Bryce Reeves (R-Spotsylvania), one of the only active senators who served in law enforcement, argued you can’t always announce yourself as an officer. At certain points, that causes problems, he said. Reeves related one of his cases as an example. Two informants told police that the drug dealers inside the house were heavily armed. If police come through the door, they would be shot, the informants said.
“If we stood at the front of that door, knocked on the door and said ‘police, search warrant,’ I [would] fully expect to take a .762 to the chest,” Reeves said. “I understand why they don’t want no knock warrants. I certainly understand that. But I don’t think this bill is ready for primetime.”
Reeves asked fellow Republican senator Bill Stanley to weigh in about another part of the legislation, which states the police have to announce themselves loud enough “for all to hear.” Reeves asked if Stanley, who is a defense attorney, would be able to get a warrant like that tossed.
“Because of how this is written, it is a subjective standard,” Stanley said. “[It says] audible for all to hear. What is that, behind the door? In the backyard? It probably gives me a better than 50 percent chance of winning.”
Sen. Scott Surovell (D-Eastern Fairfax County) pointed out there was a way to avoid any questions about what happens in such a situation.
“A smart agency would wear body cameras so there’s no dispute as to what happened when they knocked on the door,” Surovell said.
Senate rejects House addition
The Senate tossed one part of the bill. The House version forces police to announce their presence, then wait 30 seconds before entering. Senate members argued that would give drug dealers enough time to flush their product down the toilet, along with any other contraband. Even though the bill passed, since that portion from the House got removed, it now goes to conference committee. Any disputed bills go before the committee, which negotiates a final version to send to the governor.