Rise of the Warrior Cop (36 page)

T
HE ELECTION OF
B
ILL
C
LINTON IN
1992
GAVE HOPE TO
some in the drug reform community that an admitted pot smoker who had some ties to the counterculture during his college days might bring a less aggressive and less militaristic approach to federal drug policy. Those hopes were dashed pretty quickly.

Clinton and his appointees weren’t as bellicose as Reagan and Bush or Meese and Bennett, but the policies that Clinton implemented showed little understanding or appreciation of the Symbolic Third Amendment. In 1993, for example, the Justice Department and the Defense Department entered into a formalized technology and equipment sharing agreement. Not only were American police forces becoming more militarized, the thinking went, but in places like Korea the US military was taking on more of a policing role. It only made sense for the two institutions to work more closely together. Attorney General Janet Reno explained this strategy in a speech to defense and intelligence specialists. “So let me welcome you to the kind of war our police fight every day,” Reno said. “And let me challenge you to turn your skills that served us so well in the Cold War to helping us with the war we’re now fighting daily in the streets of our towns and cities across the nation.”

In 1997 the resulting Department of Justice and Department of Defense Joint Technology Program released a report on the new agency’s anniversary. Many of the projects the program developed seem relatively innocuous, such as using police and military experience
to develop better body armor or developing technology to locate snipers, which could be of benefit to both institutions. But the report also includes some more troubling projects, such as developing “less lethal, faster acting pyrotechnic devices such as flash-bang grenades” and “a gas-launched, wireless, electric stun projectile with a self-contained power supply” that “adheres to clothing and imparts a strong electric shock.” The report discusses developing sound cannons for use in crowd control and a project to develop “miniature, low-cost, wireless, modular devices that can locate, identify, and monitor the movement of selected individuals.”

Most concerning, however, is the language in which the report describes the relationship between the police and the military. While acknowledging at the outset that the two institutions have very different roles, the report asserts that those distinctions are eroding, particularly with respect to the war on drugs and the war on terrorism.

In one particularly troubling passage, the report cautions that both institutions need to be
less transparent
about the use of force. Another factor in how the military and law enforcement apply force, the report notes, is the greater presence of members of the media, who are observing, if not recording, situations in which force is applied. Even the lawful application of force can be misrepresented to or misunderstood by the public. More than ever, the report concludes, the police and the military need to be highly discreet to keep applications of force out of the public eye.
²⁷

There were other indications that Clinton didn’t appreciate the distinction between the military and civilian policing. He nominated Barry McCaffrey—an actual retired general—to be his drug czar. There was also his “troops to cops” program, which subsidized police departments for hiring returning veterans. While there is nothing inherently wrong with allowing veterans to apply to become police officers, providing a federal grant enabling them to do so risked incentivizing police departments to give a pass to vets hardened or traumatized by war who might be psychologically unfit for the job. But more broadly, the program demonstrated a belief that the two jobs are similar—that because both troops and cops carry guns, wear
uniforms, and are authorized to use force, anyone trained as a soldier naturally makes a good cop. This is certainly possible. But there’s little about military service that would make a soldier a better candidate to become a police officer than other applicants—at least as the job of police officer is properly understood. And there’s a good argument to be made that soldiers who have seen combat ought to get
extra
scrutiny before they’re given a badge and a gun.

Clinton was also responsible for one policy in particular that not only encouraged paramilitary raids on low-level offenders—even users—but by its very nature also directed such raids
only
at the poor. In March 1996, an ABC News crew went along on a no-knock SWAT raid in Toledo, Ohio. The fourteen-member squad performed a “dynamic entry” into the house, threw its occupants to the ground at gunpoint, then tore the place apart in a drug search. They found less than an ounce of pot in the bedroom of a teenager who lived in the house with his family. You might think that ABC News broadcast the raid to show an abuse of police power, that the raiding SWAT team felt embarrassed about using such force for such a petty crime. But in fact the raid was broadcast because it was considered a successful enforcement of a new federal policy.

The home the police had raided was public housing. Under the Clinton administration’s new “one strike and you’re out” policy, any drug offense—even a misdemeanor—committed in public housing supported by federal funding was grounds for eviction. The policy applied even if the drug offense was committed by someone who didn’t live in the home or was committed without the tenant’s knowledge.
²⁸
It was a popular idea. After all, why should taxpayers subsidize the drug habits of people on public assistance? Of course, there was no similar policy for recipients of corporate welfare, or for elected officials who received government paychecks. No matter. The ABC News report characterized the raid as a small victory in the war on drugs.
²⁹

P
RIOR TO
1995,
THE
US S
UPREME
C
OURT HAD ALWAYS
considered cases involving the knock-and-announce rule (and there
hadn’t been very many of them) either under the rule’s common-law tradition or under the section of the US Criminal Code describing the conditions under which a federal agent is permitted to force his way into a private residence.
³⁰
Though the knock-and-announce requirement is included in that law, the Court had yet to state that the rule—and thus the Castle Doctrine—was included in the protections against unreasonable search and seizure afforded by the Fourth Amendment. Justice Brennan had argued for that position in
Ker v. California
but fell one vote short of getting a majority.

In the 1995 case
Wilson v. Arkansas
, the Court unanimously ruled that the rule is part of the tapestry of the Fourth Amendment.
³¹
Justice Clarence Thomas relayed the long common-law history of the rule, as well as the events prior to the American Revolution that gave rise to the Fourth Amendment. But Thomas also noted the common-law exceptions to the rule—exceptions that, as Brennan pointed out in
Ker
, didn’t really exist prior to 1962 but that US courts, Congress, and state legislatures had since recognized anyway. Thomas cautioned that the Court’s ruling “should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Here he was referring to the two most widely recognized “exigent circumstances” that allow police to ignore the knock-and-announce rule: destruction of evidence and the threat of harm to police officers. After waxing historic on the long and storied tradition of the Castle Doctrine and the knock-and-announce rule, Thomas had finally ruled—with unanimous agreement from his colleagues—that the rule is part and parcel of the Fourth Amendment . . . but then took note of the exceptions to the rule that would allow police to all but ignore it.

Thomas didn’t get into specifics about the conditions that would qualify as exigent circumstances, but in a series of cases over the next ten years the Court would begin to hash them out. The next case to address the issue was
Richards v. Wisconsin
in 1997. After
Wilson
, several states gave police permission to conduct no-knock raids in
any
narcotics investigation, on the theory that drugs were easy to destroy in a hurry, generally by flushing them down the toilet. In
Richards
,
the Wisconsin Supreme Court ruled just that—narcotics cases by their very nature merit a blanket exception to the knock-and-announce rule on the theory that all drugs can be easily and quickly disposed. The Supreme Court overruled, but the opinion by Justice John Paul Stevens was narrowly written. Stevens came up with a couple of examples of cases where the destruction of evidence rule wouldn’t apply, such as “a search . . . conducted at a time when the only individuals present in a residence have no connection with the drug activity and thus will be unlikely to threaten officers or destroy evidence,” or when “police could know that the drugs being searched for were of a type or in a location that made them impossible to destroy quickly.”
³²
The first scenario seems unlikely. Police usually say that they need to serve warrants when the suspect is home in order to tie him to the drugs. It also makes it easier to make an arrest. Ironically, the second scenario gives more protection to major drug dealers than to small-time dealers or people who possess drugs for personal use. Cases involving drugs “of a type” unlikely to be quickly disposable would be cases involving large quantities of drugs. And drugs “in a location” that makes them impossible to destroy quickly would probably be drugs that aren’t in a building with a toilet or sink nearby. As a result, Stevens’s opinion offered more protection for people suspected of storing drugs in warehouses or businesses than for people suspected of storing them in their homes. The Court rejected a blanket narcotics exception to knock-and-announce, but Stevens’s opinion seemed to indicate that only a small selection of drug cases could fall outside the exception. (The Court actually upheld the conviction against Richards.)

The Court also put some limits on judicial oversight over forced-entry raids, ruling that “a magistrate’s decision not to authorize a no-knock entry should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a non-knock entry at the time the warrant is being executed.” So even when denied a no-knock warrant, police could go ahead and decide at the scene to do a no-knock raid anyway. The Court also ruled that police only need to have “reasonable suspicion” that one
of the three exigent circumstances exists in order to dispense with the announcement requirement, and that the standard of evidence for that reasonable suspicion is “not high.” Like
Wilson, Richards
appeared to be another “victory” for the Castle Doctrine that also threatened to ruin it.

After
Richards
, state courts fell back on the “particularity approach” to determine when a no-knock raid was or wasn’t merited. Judges determined whether a suspect was likely to destroy evidence on a case-by-case basis. There was no reliable, predictable standard. As we’ve seen, in the absence of such guidelines, and as judges were increasingly swamped with drug cases and drug warrants, the default position tended to defer to the judgment of police, even when the language in search warrant affidavits began to look like boilerplate.

It’s worth noting here that on the rare occasions when warrants are challenged, the challenges necessarily occur, of course,
after
the warrant has been served. It would be ludicrous to notify a suspect of a surprise search warrant ahead of time so that he could challenge its legitimacy in court. But it’s also worth remembering that these warrants give police permission to mete out extraordinary violence on people still only
suspected
of nonviolent crimes. When police get the right house with a questionable warrant, at worst the evidence they collect will be ruled inadmissible. In cases where questionable warrants lead to wrong-door raids, mistaken shootings, or some other calamitous outcome, the suspect’s opportunity to challenge the warrant comes only
after
the harm has been done. That augurs for a system in which judges play an enormously important role in ensuring the validity and soundness of warrants, as well as for a clear set of guidelines and high evidentiary standards under which they would make those decisions. Instead, the Supreme Court has consistently ruled that judges should err on the side of putting their faith in the police.