Rise of the Warrior Cop (10 page)

Justice Brennan was in the minority in
Ker
, and his dissent bristled with indignation. He began with a thorough history of the Castle Doctrine, even quoting James Otis. He made the point that the writs of assistance that helped inspire the American Revolution
were less odious, in at least a couple of ways, than the search of George Ker: such writs could only be served in daylight hours, and they required a knock and announcement before entry.
³
Brennan also questioned Clark’s assumption that the common law provided exceptions to the knock-and-announce requirement. “I have found no English decision which clearly recognizes any exception to the requirement that the police first give notice of their authority and purpose before forcibly entering a home,” he wrote. The only exception Brennan found that was possibly in contradiction of the Castle Doctrine’s intent was one allowing police to enter unannounced if they believe someone inside is in imminent danger of bodily harm.
⁴

It is generally accepted today even by critics of forced-entry police raids that officers should be allowed to enter a building or residence unannounced if the suspect is believed to be armed and likely to resist arrest if given the opportunity. After
Ker v. California
, it would soon be accepted by most policymakers that police should also be exempted from the knock-and-announce requirement if they believe that a knock and announcement would allow the suspect to destroy evidence. The courts have since held that police may enter at the scene of a search without announcing even with a regular warrant if they hear or see activity inside the residence that merely suggests someone is destroying evidence.

Brennan thoroughly rebuts all of those assumptions in his dissent. Though the principles he defends are backed by centuries of Anglo-American common law, his
Ker
opinion was one of the last times someone as prominent as a Supreme Court justice would articulate them. His first point is that to allow an exception for the possible destruction of evidence or out of fear for the safety of police officers is to “do obvious violence to the presumption of innocence.” In fact, Brennan writes, allowing for those exceptions violates the presumption of innocence twice: first by assuming the suspect is guilty of the crime for which he is suspected, and second by assuming he will attempt to escape, violently confront the police, or attempt to destroy evidence if the police are required to announce themselves.

Second, Brennan points out that to allow police to enter a home because they hear “loud noises” or “running” is to allow them to forcibly enter a home without announcement based on conduct that not only isn’t criminal, but is ambiguous. Since the police wouldn’t be permitted to prosecute someone for obstruction of justice based only on such sounds, so Brennan objected to the idea that the same sounds could be enough to allow police to enter a home without announcing.

But even accepting an exception that allows the police to enter unannounced if they hear or see activity suggesting that the suspect is destroying evidence, there was no evidence of such activity in the
Ker
trial record. The exception is based only on the officers’ testimony that narcotics suspects often attempt to destroy evidence when they realize the police are at the door. This, Brennan notes, was enough to create an exception to the knock-and-announce rule for any narcotics search—indeed, any search related to a crime involving evidence that can be easily and quickly destroyed. “The recognition of exceptions to great principles always creates, of course, the hazard that the exceptions will devour the rule,” Brennan writes.

Brennan also touches on a number of practical problems with the repercussions of the ruling. He points out the problem of mistaken identity in criminal investigations, warning that “innocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion.” That was a glimpse of the hundreds of “wrong-door” raids that would go down in the years to come. Brennan also points out the explicit danger that unannounced entries pose to
police
, writing that one common-law reason for the announcement requirement was “to protect the arresting officers from being shot as trespassers.” Here too he would be proven correct in the coming decades: dozens of police officers would be shot, maimed, and killed during unannounced raids—often by citizens who could plausibly claim that they thought they were firing at criminal intruders.

Those tragedies transpired because in the coming decades the Court would adopt Clark’s reading of the exceptions into statutes that didn’t mention them, and eventually into the Fourth Amendment
itself. The exceptions would be expanded to the point where, perversely, the Court’s interpretation of the Fourth Amendment in regard to the knock-and-announce rule would put more emphasis on preserving evidence and protecting law enforcement than on the Castle Doctrine and protecting the home from violence.

Interestingly, it’s far from clear that a majority of the justices in
Ker
actually backed Clark’s interpretation of the Castle Doctrine. Although the vote was 5–4 in favor of upholding Ker’s conviction, Justice John Harlan II voted with the majority only in the outcome. Harlan didn’t agree with incorporating the Fourth Amendment’s reasonableness requirement to the states. Instead, he thought the California law under which the Kers were convicted should be evaluated under the Due Process Clause of the Fourteenth Amendment, which he described as “more flexible” than the Fourth Amendment standard applied to federal law enforcement. Harlan didn’t expressly write that the
Ker
search violated the Fourth Amendment. If that was indeed what he believed, then a majority of justices believed that, had the
Ker
search been carried out by federal agents, it would have been unconstitutional. And a majority had already indicated that the Fourth Amendment should be incorporated to the states. That would seem to suggest that there’s at least a chance that the decision in
Ker
, while bad for the Kers, actually narrowly
upheld
the Castle Doctrine protections in
Miller
.

But that isn’t the way the decision was interpreted. When lawmakers, academics, and the media discussed and debated the knock-and-announce rule over the next twenty years,
Ker
would be referenced as accepted law, even by civil liberties advocates.

A year after
Ker
, in 1964, New York governor Nelson Rockefeller pushed two laws that would give police in the state sweeping new powers: the “no-knock” bill and the “stop-and-frisk” bill. (Nine years later he would push through some of the most draconian antidrug laws in the country, collectively known as the Rockefeller Drug Laws.)

The no-knock bill allowed police to get a special search warrant authorizing them to ignore the knock-and-announce requirement, so
long as a state judge agreed that one of the exigent circumstances that Justice Clark laid out in
Ker
was present. The stop-and-frisk bill allowed police to stop, detain, and pat down anyone in a public space whom they found suspicious. The no-knock bill passed with overwhelming support from the New York Assembly and State Senate. The stop-and-frisk bill passed by narrower margins.
⁵

There was at least some opposition. Civil rights groups like the NAACP and the Congress of Racial Equality (CORE) held rallies in protest of both bills.
⁶
The Association of the Bar of the City of New York protested the stop-and-frisk bill but supported the no-knock searches. The New York State Bar Association opposed both and argued that the no-knock bill “flies in the face of a long-established policy that ‘a man’s home is his castle,’ and for the state to invade it, it must strictly comply with safeguards which have been found to be important over the years.” Rockefeller and other supporters emphasized that officers still had to get a warrant. A judge had to be first “satisfied by proof under oath that notice will endanger the safety of the officer or another person, or that the evidence may be readily destroyed.” The bar association answered that “experience has shown that the supposed safeguard of a special oath to the magistrate issuing the warrant would speedily become a boiler-plate routine.”
⁷
That too was a concern that Brennan had expressed in
Ker
. As we’ll see, both Brennan and the New York State Bar Association would be proven correct.

In the short term, Rockefeller’s no-knock law had surprisingly little impact. The
New York Times
later reported, in 1970, that while the law “score[d] points with the law-abiding public,” it had almost no impact on how warrants were served in the state. The paper reported that in a “recent” year since the law had been passed (the precise year wasn’t specified), “the New York State Police used the law only 12 times in 1,847 narcotics cases.”
⁸
There were probably more no-knock raids than that. A cop could still decide at the scene that exigent circumstances had materialized after he had obtained a regular search warrant. (It would then be up to a court to decide if that assessment had been correct.)

Nevertheless, there was little indication that the police even wanted the law, and the fact that they used it so little after it was passed suggests that it was more of a political statement than an essential law enforcement tool. Police departments in New York didn’t even appear to find this tool
useful
, much less essential. Perhaps they found the tactic unnecessarily invasive and aggressive. Perhaps they feared that barreling into a home unannounced was more likely to invite violent retaliation than prevent it. But the law didn’t come with any accompanying public or political cries for New York cops to get more aggressive and confrontational with suspected drug offenders.

Richard Bartlett, one of the bill’s sponsors in the legislature, was serving on a state penal law commission at the time. The commission was charged with interviewing law enforcement officials, criminologists, and other experts, then recommending laws to improve the state’s criminal justice system. Bartlett says that the no-knock law was not the product of his commission’s research. “It was just something one of these groups—I think it was the district attorneys’ association—came up with that picked up political momentum. But it wasn’t anything we studied on the commission.”
⁹

If the police seldom used the no-knock law after it passed, that may have been because crime wasn’t yet the demagogic issue it would soon be. Rockefeller’s push for the laws didn’t come with the war imagery and apocalyptic rhetoric that would soon emanate from Nixon and the cadre of crime-fighting Republicans elected to Congress several years later.

The most lasting effect of the Rockefeller’s push in 1964 was to legitimize no-knock raids. Prior to the law, police only occasionally raided a residence without an announcement. Sometimes they got away with it, sometimes they didn’t. According to the
Oxford English Dictionary
, the first public appearance of the phrase “no-knock raid” came in 1964. That’s also the first time the phrase appears in the archive of the
New York Times
. Rockefeller made the no-knock raid a policy, and he gave it a name. No longer merely a decision that cops sometimes make in the heat of the moment, it was now
a tactic and an issue. It was something that everyone was either for or against.

I
N THE SUMMER OF
1965, L
OS
A
NGELES ENDURED A SUFFOCATING
heat wave. Few in the city had air conditioning, particularly in the poorer neighborhoods, so the heat collected in homes during the day, sending residents outside in the evenings in search of a breeze.

California Highway Patrol officer Lee Minikus was headed north on Avalon Boulevard in the Watts neighborhood on his motorcycle on an August evening that summer when a motorist pulled up beside him to indicate that the 1955 Buick Special ahead had been weaving, and the driver might be intoxicated. Minikus pulled over the driver, twenty-one-year-old Marquette Frye. After discovering that Frye had no driver’s license, Minikus asked him to perform a sobriety test.
¹⁰
Frye put on a bit of shtick, and the two men exchanged jokes and banter. Amused passersby stopped and began to accumulate.

Minikus called to have Frye’s car impounded, and Frye appeared ready to comply with his imminent arrest. But when Frye’s mother, Rena Frye, arrived at the scene, the tenor of the arrest changed. Frye’s mother excoriated him in front of the growing crowd. Frye grew embarrassed, then angry. When Minikus tried to put him into the car, he resisted. When another officer who had arrived swung to hit Frye in the arm with his baton, Frye ducked, and it struck him in the eye. Ronald Frye, Marquette Frye’s brother, then punched Minikus in the kidney and Rena Frye jumped on his back. More Los Angeles police officers arrived. After more scuffling, all three members of the Frye family were arrested. The crowd turned angry. As the police put the Fryes into the backs of squad cars, a member of the crowd allegedly spit on one of the police officers. She too was arrested. According to the police, she too resisted. That only further angered the crowd. As they drove away, Marquette Frye would later say, a friend of his who had joined the crowd shouted to him, “Don’t worry, we’re going to burn this mother down.”