No-knock, no-knock, who's there?
Two weeks ago, a SWAT team broke down the door of a house in a high-crime Atlanta neighborhood. It was the home of Kathryn Johnston, an 92-year-old so afraid of intruders that she required the neighbors who brought her groceries to leave them on the porch rather than enter the house. The police officers pried off her security door, and as they broke down the wooden door into the house, Johnston opened fire with a rusty revolver, striking three of them before they returned fire and killed her.
Normally, the police must knock and announce their presence before executing a search warrant. The warrant in Johnston's case contained a "no-knock" provision excusing this requirement. The sole basis for the warrant itself was the allegation that a "confidential informant" had purchased $50 worth of cocaine from a black male named "Sam" that afternoon. The only additional basis for the "no-knock" provision was the claim that the informant had told them that surveillance cameras were mounted around the outside of the house. This could have been confirmed prior to entry. Or disproved; no cameras in fact existed.
Neither did much of anything else. No one knows who "Sam" is or where he's gone. Only a small amount of marijuana was found in the house; no other drugs or drug paraphernalia, let alone the "computers and scales" which the warrant claimed were there, turned up. The informant now says that he never purchased drugs from the house. The police, who used his credibility to obtain the warrant, say he shouldn't be believed.
The real tragedy is that what happened here is not unusual by any stretch. Radley Balko of the libertarian Cato Institute has written a paper, Overkill: The Rise of Paramilitary Police Raids in America, which contends that as many as 40,000 of these no-knock drug raids take place every year, often with similarly tragic results. The paper can be downloaded here.
It's not a short read, just over 100 pages, but it's worthwhile. You'll get to meet people like Anthony Diotaiuto. Actually, you won't get to meet him. He's dead; after a police raid on his home based upon a single sale of an ounce of marijuana, the 23-year-old Diotaiuto's next stop was not the jailhouse, but the morgue, where the coroner extracted ten bullets from his body. The net result of the raid, besides a dead man whose prior record of violence and crime consisted of a marijuana possession charge at age 16, was the recovery of two ounces of the demon weed.
Edwin and Catherine Bernhardt fared better. The police broke down their door in a late-night raid, then threw the two of them to the floor and held them at gunpoint while the officers searched the house. Edwin had been nude, so the police made him wear a pair of his wife's panties. The couple was then taken to jail, and sat there for several hours until the police realized they had the wrong address.
All of this is made more interesting by the Supreme Court's decision this year in Hudson v. Michigan, where the Court voted 5-4 that the exclusionary rule would no longer be applied to violations of the knock and announce rule. The majority opinion, penned by Justice Scalia -- quelle surprise -- was rather dismissive of the interests protected by the rule, referring to them at one point as giving "the opportunity to collect oneself before answering the door" and at another as "the right not to be intruded upon in one's nightclothes."
Even before Hudson, the case law indicated a ready willingness of the courts to dispense with the knock and announce requirement, and to permit no-knock raids on the flimsiest of justifications. Initially, the knock and announce requirement, which predates the adoption of the 4th Amendment, could be excused only if there were "exigent circumstances," such as a dangerous defendant holed up, often with a hostage, in a situation where surprise might be necessary to capture him. The drug war led to relaxation of that rule; in 1995 the Supreme Court held that knock and announce wasn't necessary with if there was a danger that the drugs could be destroyed.
Oftentimes, not much more than that is offered as a rationale for seeking a no-knock warrant. That's not much of a standard; it's true of virtually every drug search. Sometimes the police offer the additional reason that there are known to be guns in the house. (Diotaiuto, for example, had a concealed weapons permit.) Actually, a no-knock raid in that situation can heighten the dangers to the police; as even the Hudson Court acknowledged, one of the reasons for the knock and announce rule is that "unannounced entry may provoke violence in supposed self-defense by the surprised resident."
The knock and announce requirement is not the only 4th Amendment casualty of our War on Drugs, now entering its fifth decade. Forfeiture laws have expanded greatly despite almost universal condemnation of their unfairness. Police regularly violate the privacy of drivers, pulling them over for traffic infractions which are acknowledged by everyone to be mere pretexts for fuller detentions and possibly searches. People in the inner city are routinely stopped and frisked.
It would seem that if we are going to further erode privacy concepts by allowing the police to storm our homes in combat gear, armed with assault weapons, we should reserve that for the most extreme situations: a history of violence by the resident of the home, or evidence of a large-scale drug operation. Permitting such raids on the sole basis of a single small drug purchase can only multiply the opportunities for the type of tragedy that played out in Atlanta.
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