Texas House Overwhelmingly Approves Restrictions on No-Knock Warrants
Conservatives who support the bill recognize the conflict between unannounced home invasions and the Second Amendment.
The Texas House of Representatives last week overwhelmingly approved a bill that would sharply restrict the use of no-knock search warrants, which the state Senate is now considering. Both chambers are controlled by Republicans, and the bipartisan support for the bill suggests that many conservatives recognize the potentially lethal hazards of routinely allowing police to enter people's homes without warning. That practice pits law enforcement priorities against the right to armed self-defense in the home, which the Supreme Court has recognized as the "core" of the Second Amendment.
H.B. 504, which state Rep. Gene Wu (D–Houston) introduced last November, passed the House by a vote of 104–33. It would require that all applications for no-knock warrants be approved by the police chief or a supervisor he designates. Municipal court judges who are not state-licensed attorneys generally would not be allowed to approve no-knock warrants. The officers serving the warrant would have to be in uniform or "otherwise clearly identifiable" as police. If the bill passes the state Senate and is signed by Gov. Greg Abbott, Texas will join Florida, Virginia, and Oregon in restricting this type of warrant.
"No-knock warrants are really dangerous," Wu told Houston Public Media. "They're just a bad policy. There's no reason that you can't announce that it's the police coming into your door in the middle of the night." He said Texas conservatives "understand that you don't really have a right to defend your home if you don't know who is coming in."
That point was vividly illustrated by the 2019 raid that killed Dennis Tuttle and Rhogena Nicholas, a middle-aged Houston couple falsely implicated in heroin dealing. The warrant to search their house on Harding Street was based on a fraudulent affidavit, which led to state and federal charges against Gerald Goines, the veteran narcotics officer who submitted it. But beyond the problems with the warrant, the cops who served it did so in a reckless manner that invited confusion and violence.
Members of the Houston Police Department's Narcotics Division broke into the house without warning in the early evening, when Tuttle and Nicholas reportedly were napping, and immediately used a shotgun to kill the couple's dog. Tuttle responded by grabbing a revolver and firing at the intruders, which prompted a hail of bullets that killed him and his wife. "Once the homeowners thought that their doors were being kicked down by home invaders, they started firing, and the police responded in kind," Wu noted. "We simply can't have that."
That deadly raid prompted Art Acevedo, then Houston's police chief, to start requiring approval for no-knock warrant applications from a high-level supervisor, which is similar to the main element of Wu's bill. But lax supervision was just one of the problems revealed by this appalling incident.
Houston Municipal Court Judge Gordon Marcum approved the warrant hours after a confidential informant supposedly had bought heroin from "a white male, whose name is unknown," at the Harding Street house. Goines later admitted he had invented that transaction. While Marcum did not know that, he ignored an obvious red flag: Although Goines claimed he had been investigating Tuttle and Nicholas for a couple of weeks, he did not know their names.
In addition to concluding that Goines had established probable cause to believe that police would find evidence of drug dealing, Marcum agreed that Goines had met the criteria for a no-knock warrant. That judgment likewise was questionable.
In the 1997 case Richards v. Wisconsin, the U.S. Supreme Court held that the Fourth Amendment does not allow "a blanket exception to the knock-and-announce requirement" for drug cases. Rather, the Court said, police must have case-specific evidence that an unannounced entry is reasonable in light of concerns about "a threat of physical violence" or destruction of evidence. Yet Goines offered little more than boilerplate language about the general possibility of violent resistance and evidence destruction when police serve a drug warrant.
According to Goines' affidavit, there was probable cause to believe that "knocking and announcing would be dangerous, futile, or would inhibit the effective investigation of the offense" in light of two facts. First, "heroin was purchased from the location and additional substance was observed at the above residence in question by the confidential informant." Second, the informant had seen "a semi-auto hand gun of a 9mm caliber" at the home.
All of those assertions were lies. There was no confidential informant, no heroin, and no 9mm handgun. And it turned out that Goines had a long history of fabricating evidence against drug suspects, including fictional transactions and firearms that supposedly were observed but were not recovered during searches. Again, Marcum did not know that Goines was making the whole thing up. But he accepted Goines' contention that the combination of contraband, which is characteristic of all drug cases, and gun ownership, which is common in Texas, was enough to justify a no-knock warrant.
Goines, who by his own account did not even know Tuttle's name, presented no evidence that the unidentified suspect had a history of violence or any other information to support his claim that "knocking and announcing would be dangerous." Marcum nevertheless concluded that Goines "has established sufficient reason to believe that to knock and announce their purpose by the officers executing this warrant would be futile, dangerous, and otherwise inhibit the effective investigation of the offense."
Marcum, who retired a month after police killed Tuttle and Nicholas, issued many no-knock warrants during more than two decades on the bench. In a 2021 interview with The Washington Post, he defended his approval of the Harding Street warrant, which he said was based on his assumption that Goines was telling the truth.
"Of all the years that I've signed them, I never had a police officer ever proven that they had lied," Marcum told the Post. "That's the first one." He said he took seriously his responsibility to scrutinize affidavits and prevent unjustified searches. But he said it was not his job to assess an affiant's credibility based on prior allegations of perjury or a pattern of searches that failed to discover drugs or guns.
"It wasn't my job to do that," Marcum said. "It's the officer who's in charge. The police officer, the supervisor, the captain, the department director, and all of them who have access to those things."
At the same time, Marcum said he had reconsidered his belief that no-knock warrants protect police officers. That demonstrably was not true in the Harding Street raid, during which four officers, including Goines, were injured by gunfire. After that incident, "I would think that you really just couldn't sign a no-knock anymore," Marcum said. "I wouldn't sign one," he added, because "there's a possibility of so many officers being hurt and killed," and "there's no reason to put them in harm's way."
Banning or restricting no-knock warrants is only a partial solution to the dangers posed by invading people's homes in search of drugs. Even when police do knock and announce themselves, they often do so immediately before breaking in, providing little time for residents to understand what is happening. That creates a risk of potentially deadly confusion, especially when warrants are served in the middle of the night.
When Louisville police killed Breonna Taylor in 2020, for example, they had a no-knock warrant, which Jefferson County Circuit Judge Mary Shaw hastily approved without enough evidence to establish probable cause to believe that drugs would be discovered, let alone evidence that the officers faced "a threat of physical violence." Despite the no-knock warrant, the cops banged on the front door around 12:40 a.m., and they said they also announced themselves. Neighbors disputed that claim. But even if the cops did identify themselves, any such warning could easily have been missed in the circumstances.
Taylor's boyfriend, Kenneth Walker, said he heard no announcement and had no idea the men breaking into the apartment were police officers. Like Tuttle, he grabbed a gun and fired at the intruders, with consequences similar to what had happened in Houston the year before. Walker fired a single round, striking an officer in the leg. Three officers responded by firing 32 rounds, several of which struck Taylor, who was unarmed and standing near Walker in a dark hallway.
Local prosecutors, who initially charged Walker with attempted murder, dropped that charge two months later, implicitly recognizing the strength of his self-defense claim. Kentucky Attorney General Daniel Cameron later concluded that the officers also had acted in self-defense—a judgment that underlined the risks that such raids pose to officers as well as residents.
Taylor's senseless death, like the raid that killed Tuttle and Nicholas, prompted local restrictions on no-knock warrants. But that reform, while a step in the right direction, does not address the fundamental problem: drug laws that authorize violence in response to peaceful conduct that violates no one's rights.