Wickware, Gregory Charles v. State ( 1999 )

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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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.