The US Supreme Court's 5-4 decision last week weakening longstanding protections against unannounced police raids has given law enforcement agencies a green light to resort to aggressive, "no-knock"-style raids to execute search warrants, criminologists, former police executives, and police-watchers told DRCNet this week. The result will be an increase in incidents where innocent homeowners or police -- not to mention people targeted for drug use or sales -- are killed or seriously injured, they warned.
In last week's case, Hudson v. Michigan, police with a "knock and announce" warrant burst through Booker Hudson's door within three to five seconds after announcing their presence. After police found cocaine and a weapon, Hudson was convicted on drug charges. On appeal, he argued successfully that the evidence against him should have been suppressed because it was the fruit of an unlawful search -- the traditional remedy for law enforcement violations of the Fourth Amendment right to be free of unreasonable searches and seizures.
But in an opinion authored by Justice Antonin Scalia, the high court majority held that even though police had violated the "knock and announce" rule, the traditional remedy -- throwing out the evidence -- is no longer required. Instead, Scalia wrote, people whose rights had been violated by "knock and announce" searches turned "no-knock" searches, could seek justice by filing civil suit or find solace in what he called a rising level of "police professionalism."
Springfield, Arkansas residents Patricia Durr-Pojar and her son, Curtis Pojar, might have a few words to say about police professionalism. Durr-Pojar spent last Thursday and Friday nights at a local hospital emergency room being treated for injuries suffered when the local dope squad, the Combined Ozarks Multi-Jurisdictional Enforcement Team (COMET), raided their home on a warrant for methamphetamine and a meth lab. Curtis Pojar received bruises and a laceration under his left eye. No meth or meth labs were found, but the cops did find a small amount of marijuana and a pot pipe in Curtis Pojar's trailer -- and according to the pair's uncontested account, trashed both properties.
Black-clad police set off a flash-bang grenade, then burst in without identifying themselves, said Durr-Pujar, who fled into the bathroom. "I thought they were going to kill me. All this fire seemed to come through the windows," she told local columnist Sarah Overstreet Monday. "I didn't know if they were gun shots or what, and I thought Curtis had been shot or that the propane tank had blown up. I ran to the bathroom when I saw Curtis' head go down when the officers knocked him down. I closed the door, and they knocked it in and hit me in the head with it, then knocked me to the floor," she said. Her head wound came from her face bouncing off the bathroom floor, she added. "They hit in here with such violence, it was in a militant, terrorist style," said Durr-Pojar, who is on disability.
Anthony Diotaiuto might have a few words to say about police professionalism, too, but he can't because he didn't survive the raid on his home. The 23-year-old bartender was killed last August by a Sunset, Florida, SWAT team executing a dawn no-knock raid over alleged small-time marijuana sales. Police shot him dead when he allegedly reached for his pistol as masked, yelling intruders kicked down his door. They found two ounces of pot.
Without police having to pay with the loss of evidence for violating "knock and announce" rules, they will have little effective incentive to refrain from turning them into "no-knock" searches at will. Despite Scalia's assertion that people can seek civil relief, the state of Michigan and the Justice Department admitted in briefs filed in the case that no case where someone had won such a civil suit could be found.
"This is a pretty ugly decision," said Radley Balko, an analyst for the Cato Institute, which filed a brief in the case urging the court to uphold the appeals court decision. "I don't see how the court can say there is still a right to 'knock and announce,' but take away all realistic ways of enforcing it. This is pretty much a guaranteed ticket to more no-knock searches, more illegal no-knock searches, and inevitably, more innocent people on the end of them," he told DRCNet.
"This means forget it -- they're not going to knock and announce. Why would they do that if there are no teeth in the law anymore?" said Jack Cole, a former New Jersey narcotics commander who now leads Law Enforcement Against Prohibition (LEAP), a group whose mission is evident from its name. "It was already hard enough to get police to knock and announce, because if they just went through the door without the announcement, the person charged had to convince the judge, while all the cop had to do was say 'I announced,'" Cole told DRCNet.
"This is going to lead to more injured and dead people," Cole predicted bluntly, "and they're not all going to be the people we're targeting because we so often hit the wrong house. There are a lot of innocent people who are going to be hurt as a result of this, as well as police. If somebody broke down my door in the middle of the night, I wouldn't assume these are good people. I'd be reaching to protect myself and my family."
A lot of innocent people are already being hurt and killed in errant police raids, according to a report Balko will release for the Cato Institute early next month. The report, "Overkill: The Rise of Paramilitary Police Raids in America," contains an appendix containing at least 220 cases of botched, wrong-address raids in recent years, Balko said. The report will document about 40 cases where completely innocent people were killed, 15 to 20 cases where police officers were killed, and another 30 cases where small-time violators -- like Diotaiuto -- were killed.
"The police are now clearly authorized to engage in this kind of behavior," said University of Omaha-Nebraska criminologist Samuel Walker, an authority on police accountability and author of a text on police professionalism cited by Scalia. "But it will be a very mixed response. Bursting in on people can get you shot; it's a very risky tactic. There is a tremendous variation in police professionalism, and some departments may have heard a news story and say 'Yes, now we can do that.' In the better departments, they will study the decision and have some discussion of whether it is proper and what the dangers are," he told DRCNet. "But some police captains are smarter than Scalia."
[Walker has a bone to pick with Scalia, he told DRCNet. On page 12 of the opinion, Scalia refers to Walker's "Taming the System," which discusses wide-ranging reforms in the training and supervision of police officers, to support his claim that increased police professionalism diminishes the need for the court to resort to sanctions such as excluding the evidence. "My point in the book was that it had always been the intervention of the Supreme Court that stimulated these reforms, but he is essentially turning that on its head," Walker complained. "He is saying we have had these reforms, so the Supreme Court doesn't have to play that watchdog role, but he is removing the main force that led to those reforms in the first place."]
Not everyone was displeased with the decision. The Criminal Justice Legal Foundation, a group advocating reduced rights for accused and convicted criminals, filed a brief urging the court to adopt the decision it did. "The decision not to expand the exclusionary rule is very important to law enforcement," said Foundation legal director Kent Scheidegger. "Justice is best served when juries are allowed to consider all relevant evidence."
But Scheidegger downplayed the real world impact of the ruling. The most important outcome was not a probable increase in no-knock raids, he told DRCNet, but that "there is no one less grounds to exclude evidence from criminal cases."
"The no-knocks are a problem, but they aren't the fundamental problem," said LEAP's Cole. "The problem is that we've trained our police officers to go to war. When you go to war, you have an enemy, and the enemy in this war is the citizens of this country. In a war, anything goes, and that's what cops are taught. A war on drugs is a terrible way to talk when you are talking about policing a democratic society."
But police do not have to let bad practice drive out good ones, said Walker. "State courts could set higher standards," he suggested. "State attorneys general could and should issue advisory opinions on this. It is still possible for police departments to say they don't think this is a good idea, it's not safe, not practical, not good for community relations. They can get the job done and adhere to a higher standard," he said.