Rise of the Warrior Cop (48 page)

In 2003 the Supreme Court unanimously ruled that fifteen to twenty seconds is sufficient time for police to wait after knocking before forcing entry, though they conceded that it was a “close call.” The search warrant for Banks was served on a Wednesday afternoon, a time of day when fifteen to twenty seconds might seem like enough time. But a warrant served at night, while everyone is asleep—most likely in a bedroom removed from the front door (where bedrooms usually are)—would be quite a bit different. The opinion, written by Justice David Souter, made no such distinction. Souter also indicated that even shorter wait times might be justified in narcotics cases because of the disposableness of the evidence. Here again, a US Supreme Court opinion had taken a position that makes it easier to use violent dynamic-entry tactics on low-level drug offenders than major ones (because smaller quantities are easier to destroy than larger ones) and for nonviolent offenses like drugs or gambling (where the incriminating evidence is generally disposable) than for crimes like weapons violations or murder (guns and bodies being tougher to destroy quickly).

By Souter’s analysis, “what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or
kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. . . . It is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter.”

As discussed earlier, the knock-and-announce rule arose out of the common-law tradition and the Castle Doctrine valued so highly by the American Founders. To protect the sanctity of the home, the police were obligated to give a homeowner the opportunity to grant them entrance in order to prevent a violent confrontation, the destruction of his door and property, and the infliction of terror upon him and his family. Souter’s direction to police to consider
disposal time
instead of the time it would take an occupant to come to the door not only does away with the notion that the purpose of the knock-and-announce rule is to give citizens the opportunity to avoid a violent confrontation, it also presupposes that
all
drug suspects are guilty. Souter’s
only
concern was with making sure the knock-and-announce requirement doesn’t give drug offenders the opportunity to destroy evidence. And every other justice agreed with him.

In
Banks,
a unanimous Court decided that preserving the evidence needed to convict people suspected of nonviolent, consensual drug crimes was more important than protecting innocent people from the violence of a paramilitary-style police raid. Thirty years after it began, the modern drug war had finally killed the Castle Doctrine.

Next up was the 2006 case
Hudson v. Michigan,
in which the Supreme Court effectively erased its own recognition of the knock-and-announce requirement ten years earlier.
²⁵
By a 6–3 vote, the Court decided that even when police conduct a clearly illegal no-knock raid, any illegal evidence they seize can still be used against the defendant at trial. Writing for the majority, Justice Antonin Scalia took aim at that old conservative nemesis, the Exclusionary Rule. Scalia wrote that the rule is excessive and inappropriate in such cases. He added that there are other ways of holding police officers accountable when they violate the knock-and-announce requirement. Scalia
explained that police management and internal affairs departments could, for instance, bring disciplinary action against offending officers, or innocent victims of illegal raids could sue the offending officers in court. He also cited the existence of civilian review boards. If you’ve read this far into this book, it should be clear that those solutions haven’t been particularly effective at preventing these abuses.

In pointing to these other possible remedies for knock-and-announce violations, Scalia cited the work of criminologist Sam Walker, who has done extensive research on the development of police professionalism. In the study Scalia cited, Walker concluded that there has been enormous progress “in the education, training and supervision of police officers.”
²⁶
Scalia argued that this progress was gradually making the Exclusionary Rule obsolete. But Walker’s thesis was that this progress has come about in part
because
of Supreme Court decisions applying the Exclusionary Rule, particularly during the Warren years.

Walker was horrified. Shortly after the
Hudson
decision came down, in an op-ed in the
Los Angeles Times
headlined “Thanks for Nothing, Nino” (Nino is Scalia’s nickname), Walker wrote:

Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.
²⁷

The Court wasn’t finished. In 2011, another 8–1 vote found that police officers may forcibly enter a home without a warrant if exigent circumstances exist even if police create the exigent circumstance themselves. In the case before the Court, an informant had conducted a cocaine buy while working for police in Lexington, Kentucky. The police then followed their suspect into an apartment complex, at which point they lost him. They claimed, however, that
while they were there they smelled marijuana coming from an unrelated apartment. They knocked, and when they heard “rustling” inside, kicked down the door. Inside, they found marijuana and cocaine. The Kentucky Supreme Court threw out the conviction, writing that in this case “police have created their own exigency, and cannot rely on the fear of evidence being destroyed as a justification for a warrantless entry.”
²⁸

The US Supreme Court disagreed. Writing for the majority, Justice Samuel Alito found that so long as the police conduct itself is lawful before the exigent circumstances manifest, the subsequent search is legal.
²⁹
The Court has a history of assuming good intent on the part of police officers (see the “good-faith exception” to the Exclusionary Rule). But as the lone dissenter, Justice Ruth Bader Ginsburg, explained, decisions like these can become a how-to guide for cops to undermine the Fourth Amendment. “The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”
³⁰

THINGS WERE GETTING BAD IN
N
EW
Y
ORK
C
ITY
. B
Y
2002, the New York Police Department (NYPD) was conducting over 450 drug raids per month, the vast majority under no-knock warrants. In October 2002, Norman Siegel, former director of the New York Civil Liberties Union, held a press conference to announce that he was representing the victims of three such raids—all of them involving raids on wrong addresses—in a lawsuit against the city. Siegel pleaded with police to use more caution. “We must do a better job of no-knock search warrants,” he warned. “Otherwise, someone might wind up dead as a result of how we implement this procedure.” Less than a year later, his prediction came to pass.

On May 16, 2003, a dozen New York City police officers stormed an apartment building in Harlem on another no-knock warrant.
They were acting on a tip from a confidential informant who told them a convicted felon was dealing drugs and guns from the sixth floor. But there was no felon. The only resident in the building was Alberta Spruill, a fifty-seven-year-old city employee described by friends as a “devout churchgoer.” Before breaking in, the raid team set off a “flash-bang” grenade—a nonlethal weapon that emits a bright flash and deafening thud used to shock and disorient criminal suspects or the enemy in combat situations. The explosion of bright white light and accompanying thunderous boom stunned Spruill. She fell to the ground. Once the police figured out their mistake, an officer attempted to help Spruill to her feet. But she went limp and slipped into cardiac arrest. She died two hours later.

The ensuing investigation found that the NYPD’s informant had flat-out lied and that the officers who conducted the raid had done no investigation whatsoever to corroborate the tip. A police source later told the
New York Daily News
that, in fact, the informant’s record was so poor, he was due to be dropped from the city’s informant list.
³¹
Yet somehow an uncorroborated tip from an informant with a prior success rate somewhere around 0 percent was still enough to get the Manhattan district attorney’s office and a state magistrate to sign off on a no-knock warrant. The entire process—from the conversation with the informant until the moment Alberta Spruill’s heart stopped beating—took only a matter of hours. In an article the following June, the
New York Times
noted another horribly botched raid, on Timothy Brockman, a frail, sixty-eight-year-old former Marine. The raid was so violent that “next-door neighbors, afraid that the building had been bombed by terrorists, fled with their pajama-clad children.” The police had the wrong house. Sources interviewed by the paper said the operation was “muddled by erroneous information” and “the belief in a phantom informant.” The assault on Brockman’s home illustrated “not only the ways that aggressive police work can go wrong, but also the willingness—or hesitance—of the authorities to take responsibility for preventing such errors. At the time, the incident received no publicity and no serious attention
from the police leadership.” Brockman was raided two days before Alberta Spruill.
³²

In its own follow-up piece, the
Village Voice
found that reports of botched no-knocks had been pouring into the NYPD for years. “Until Spruill’s death, the NYPD had done nothing to stem the number of incidents,” the
Voice
wrote, “despite receiving a memo from the Civilian Complaint Review Board in January noting the high number of raid complaints. Last March, the NAACP also approached NYPD commissioner Raymond W. Kelly about the raids.” The raids were straining already tense relations between police and minority communities. One of the wrongly raided, Orlando Russell, told the
Voice
that while he had once been an “upstanding citizen,” he was fed up with the number of no-knock raids on low-income and minority communities. “Any cop walking [into his home] without an invitation better have a body bag.”
³³

That 1998
New York Times
story ran under the headline “As Number of Police Raids Increase, So Do Questions.” The article noted that the number of narcotics search warrants issued in New York City had doubled from 1994 to 1998, from 1,447 to 2,977. And most of these raids, according to the
Times,
were drug raids done with no-knock warrants.

Despite ongoing media reports of “wrong-door” raids throughout the late 1990s, city officials continued to insist that such incidents were uncommon and nothing to be alarmed about. And yet, in February 1998, the NYPD circulated a memo among the city’s police officers instructing them on how to contact locksmiths and door repair services should they break down in the wrong home. Outwardly, the claim was that these were isolated incidents, rare as a lightning strike. Inwardly, the department knew they were common enough that officials had established procedures for fixing wrongly raided doors.

Though complaints about botched raids came in regularly, the city’s Civilian Complaint Review Board (CCRB) could do little to stop them. The board was hamstrung by bureaucracy, limited jurisdiction, and antagonism from the police union. The review board was only permitted to review cases in which the raiding cops themselves
had acted improperly. It couldn’t look at the substance of an individual warrant to determine, for example, if it was proper for a judge to have issued it in the first place. The board also couldn’t give victims the information they needed to seek compensation—or even an official apology and admission of error, which some needed to appease landlords or employers who were unpersuaded by their protestations of innocence. And so, as the number of no-knock raids in New York City soared, NYPD officials would tell victims that their only recourse was the CCRB, knowing full well that there was little the CCRB could actually do. With its jurisdiction limited to the conduct of police in specific raids after the warrant was issued, the review board not only was unable to investigate whether a raid should ever have been conducted in the first place, it also couldn’t look into the use and abuse of informants, whether the same cops were conducting too many raids, or whether the same raid teams were making the same mistakes.