Author: Matthew Schleehauf (USQ JD student)

Introduction

The shocking events of 2020 have shed a powerful light on the overreaching powers of police to interfere with the lives of the common people. The notoriously well-known example of George Floyd and the call to arms — ‘I can’t breathe’ — not only shone a light on police brutality and racism, but also on the police’s overreaching powers. The US Congress recently debated the issue of police powers and passed a new piece of legislation in the Senate known as the George Floyd Justice in Policing Act of 2020[1] (‘George Floyd Act’), one of the aims of which is to ban the ‘no-knock warrant’, an ability which previously allowed law enforcement officers to break into a person’s home without warning or notice. Join me as we explore together the history of the no-knock warrant,[2] going as far back as 17th century England with the landmark decision in Semayne v Gresham (‘Semayne’s Case’),[3] which set the foundation of a person’s right to call their home their castle, thereby limiting the power of authorities to gain entry.  This historical case will then be examined to establish its effect on modern legal principles in Australia and how it continues to shape the law in the common law world.

Semayne’s Case

Our story starts in 17th century England, the year 1604, the landmark decision of Semayne’s Case has just been laid down in the Court of the King’s Bench in favour of the defendant, Mr Richard Gresham, upholding his right to refuse entry to his house to law enforcement.[4]

‘The house of every one is his castle…’[5]

Sir Edward Coke in Semayne’s Case

Richard Gresham was a joint tenant of a house in Blackfriars, London, with George Berisford in the late 16th century.[6]  George Berisford owned items at the time which were inside the house.[7] Upon George Berisford’s death, the possession of the items, which remained in the house, were transferred over to the defendant through survivorship.[8] The plaintiff, Peter Semayne, obtained a writ of extent, a document allowing him to seize all of George Berisford’s items to settle a debt owed to him by Berisford at the time of his death.[9] Semayne delivered the writ to the sheriffs of London, who agreed to carry out the requirements of the writ and attend the place where Berisford’s items were held and seize them for Semayne.[10] Upon arrival at Richard Gresham’s house, the defendant prevented the sheriff from accessing the house by closing the door, thereby preventing the plaintiff from recovering the debt.[11] The decision of the King’s Bench explored situations when a person could lawfully prevent the King’s men (the sheriff) from entering their home.[12]

The King’s Bench examined the difference primarily from a criminal and civil point of view[13] given its jurisdiction included, after the 15th century, matters involving non-payment of debt.[14]  The Court found that in all cases where the King is a party, such as that of criminal matters, then the sheriff (or King’s person) has the authority to break a person’s door in order to undertake the arrest or the King’s process.[15] The Court, however, added a qualification that ‘before he breaks it [the door], he ought to signify the cause of his coming, and to make request to open doors’.[16] The Court weighed up the impasse and inconvenience the breaking of the door would cause to the person, as well as the fact that the person could be arrested elsewhere rather than in the safety of their own home.[17] The Court, however, concluded that if there was a suspicion of a felony, then the King’s officer may break the house, after notice is given, to apprehend the felon for two reasons: first, that it is the role of the Commonwealth to apprehend felons; and secondly, that the privilege bestowed upon persons that they have liberty inside their house does not hold against the King.[18] Furthermore, the Court found that in all cases (criminal or civil) if the door is open, then the sheriff may enter the house.[19]

The Court took a very different approach with that of civil cases, such as that of Semayne’s Case, where the King was not a party to the case. The Court held that the house of every one is his castle[20] and that for a common person to break the house to execute a process would be of great inconvenience, in addition to a loss of liberty to the person whose house had been broken.[21] It was therefore found that a sheriff may not break into a person’s house in the execution of a civil matter, even after a request or notice of entry was made (although see matters involving protection not being extended to third parties and real action where this rule does not apply).[22] Furthermore, the Court even said that if the sheriff did break the house then this could constitute trespass on the part of the sheriff.[23] The Court therefore found that the defendant in this case was within his legal rights to shut the door to the sheriff and the sheriff had no right to break the door of Mr Gresham’s castle.[24]

The Broader Historical Context of Semayne’s Case

Semayne’s Case[25] established this precedent of the knock and announce principle which had a profound effect on historical English and American cases. For example, the 1757 English case of Richard Curtis confirmed that the knock and announce principle did also apply to criminal matters, allowing the sheriff to break open doors only after giving notice of the warrant allowing them to do so.[26] The Fourth Amendment to the American Constitution also highlights the historical importance of Semayne’s Case:[27] the amendment required police officers to announce their purpose prior to breaking into an individual’s home.[28] An example which discussed this amendment was Miller v United States[29] in 1958 which also confirmed in the common law that a police officer was required to comply with the knock and announce principle, solidifying Semayne’s Case in American law.[30] Later cases, such as Ker v California[31]in 1963, appear to have relaxed this rule establishing exceptions to when police can break into a premises without notice, such as when there is a risk of evidence being destroyed.[32] This led to the US Government enacting laws in 1970 legalising the ‘no knock warrant’ in certain cases,[33] which lead to controversial and disastrous occurrences of violence during such cases.[34] As a result, the American Government repealed the legislation in 1974.[35]

Modern Application of Semayne’s Case

Semayne’s Case has also had a profound effect on the Australian legal system. The case of Gardiner v Marinov[36] is a prime example. The appellant in this case, Gardiner, was ordered to pay costs by the court for a previous matter.[37] Gardiner did not pay within the stipulated period, resulting in a warrant of distress being issued to seize her goods to satisfy the debt.[38] A bailiff attended her property and attempted to enter when Gardiner refused entry.[39] The bailiff requested police assistance who attended the property and entered her premises with the bailiff.[40] Gardiner sued for trespass.[41] Citing Semayne’s Case,[42] the Court found that because this was a civil matter, it did not permit the police or the bailiff to enter the premises as entry was not authorised by the occupant.[43] As such, this case reaffirmed the role of Semayne’s Case and the knock and announce principle in Australia.

Conclusion

In conclusion, Semayne’s Case still stands as the leading common law authority regulating entry into a person’s home with it not only applying to Australian jurisdictions but, as explored above, still having a profound effect on other jurisdictions such as the United States. Now that you are armed with this knowledge, I implore you to go forth and learn about the George Floyd Act[44] and whether the principles in this Act can be applied to the Australian jurisdiction to curb the powers of police.

[1] George Floyd Justice in Policing Act of 2020, HR 7120, 116th Congress (2020) (‘George Floyd Act’).

[2] Todd Witten, ‘Wilson v Arkansas: Thirty Years after Ker the Supreme Court Addresses the Knock and Announce Issue’ (1996) 29(2) Akron Law Review 447, 449–50, citing Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194, 194–95.

[3] Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194 (‘Semayne’s Case’).

[4] Ibid 199.

[5] Ibid 194.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid 194–5.

[10] Ibid.

[11] Ibid.

[12] Ibid 194.

[13] Note, ‘Right of Sheriff to Break and Enter Outer Door to Execute Process in Virginia’ (1933–1934) 20(5) Virginia Law Review 592, 596–7 (‘Virginia Law Review’).

[14] Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 3rd ed, 2013) 70–1.

[15] Semayne’s Case (n 3) 195–6.

[16] Ibid 195.

[17] Ibid 198.

[18] Ibid 197.

[19] Ibid.

[20] Ibid 194.

[21] Ibid 198.

[22] Ibid 194, 199. Also see Virginia Law Review (n 13) 598–99.

[23] Semayne’s Case (n 3) 198.

[24] Ibid 199.

[25] Ibid.

[26] Witten (n 2) 450, citing Curtis’s Case (1757) 168 ER 67.

[27] Semayne’s Case (n 3).

[28] Witten (n 2) 452, citing Ker v California, 374 US 23, 49 (1963).

[29] Miller v United States, 357 US 301(1958).

[30] Witten (n 2) 452, citing Miller v United States, 357 US 301, 313 (1958). Also see Robert J Driscoll, ‘Unannounced Police Entries and Destruction of Evidence after Wilson v Arkansas’ (1995) 29(1) Columbia Journal of Law and Social Problems 1, 16, citing Miller v United States, 357 US 301 (1958).

[31] Ker v California, 374 US 23 (1963).

[32] Driscoll (n 30) 16, citing Miller v United States, 357 US 301 (1958).

[33] Witten (n 2) 456, citing Comprehensive Drug Abuse Prevention and Control Act of 1970, HR 18583, 91st Congress (1970).

[34] Witten (n 2) 456–57, citing Charles P Garcia, ‘The Knock and Announce Rule: A New Approach to the Destruction of Evidence Exception’ (1993) 93(3) Columbia Law Review 685, 705. Also see Driscoll (n 30) 1–3.

[35] Ibid.

[36] Gardiner v Marinov (1998) 7 NTLR 181.

[37] Ibid 181.

[38] Ibid 183.

[39] Ibid 184.

[40] Ibid.

[41] Ibid 181.

[42] Ibid 189–90, citing Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194, 197–98.

[43] Ibid 189–91.

[44] George Floyd Act (n 1).