Friday, June 16, 2006

What's the point of the Fourth Amendment?

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."

- Johnson vs. United States, 1948
Seems like the John Roberts-era Supreme Court has missed the point. Police could already get a no-knock warrant, it just had to be approved by a judge. Pero no mas, after Hudson v. Michigan. As Justice Breyer wrote in his dissent, Hudson "represents a significant departure from the Court's precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection."

Radley Balko suggests Justice Scalia and his cohorts should have studied up on law enforcement's "professionalism" in Tulia, Hearne, and the Dallas fake drug scandals before relinquishing more judicial authority to cops in the field.

UPDATE: Howard Bashman has the links of the day, and points to an NPR story this morning by Nina Totenberg.

17 comments:

Anonymous said...

Not knocking is the best idea I have ever heard of.
Two facts need to be considered:
1) The police have a search warrant to search the house, thus satisfing the right to due process under the law
2) The purpose of not knocking is to give law enforcement discretion when it comes to their own safety.

Proponents of this must-knock policy are forcing police officers to needlessly endanger their lives if they execute search warrants.

The criminal in this case ILLEGALY HAD A LOADED GUN in his possession. The police used their discretion and were right to do so.

Knock and announce only gives criminals the opprotunity to destroy evidence or to gain the upperhand in a confrontation. Stupid..Stupid..Stupid

Anonymous said...

Somebody who burst into my house without knocking is likely to get shot with my LEGALLY loaded gun. If that's what you want to happen more often when cops exercise search warrants, terrific idea. Otherwise, this Supreme Court decision is what's stupid, stupid, stupid. Not to mention disrespectful of the Constitution.

Anonymous said...

Honest question. What does knocking and announcing, then waiting 15 seconds before breaking down a front door, actually have to do with the constitution?

I'm asking for an answer from an ACLU standpoint. I just don't get how knocking and announcing does anything to protect individual rights.

Biohazard said...

The first comment is right. Officers already have the legal right to enter the residence since there is a signed search warrant. This knock and announce rule is nowhere in the Constitution. It was just imposed through a court ruling.

Let me tell you from experience, after multiple narcotics search warrants, only ONE person opened the door after we knocked. The rest were too busy trying to hide the dope and find their guns.

This decision will help protect officers. The ACLU will have you believe that every door will be knocked down. Not true. If it a warrant with a very low risk factor (mostly non-narcotics) officers will still knock.

Good job Supreme Court

Gritsforbreakfast said...

There are a string of cases going back six decades requiring officers to "knock and announce" as part of the "reasonableness" of executing the search warrant. Prior court precedent also had exceptions for exigent circumstances, officer safety, etc., but otherwise generally required judicial approval for a "no knock" warrant. So this new rule doesn't provide any new protection for officers at all - they could always get a no knock warrant. Hudson just cuts judges out of the picture, diminishing the checks and balances founding fathers sought to place on the exercise of police power. Best,

Biohazard said...

To get a no-knock, officers usually had to show some history of violence AND the known presence of a weapon in the residence. Sometimes, this information just isn't available. However, it is common for drug dealers and/or gang members to keep weapons in their homes.

When dealing with these types of warrants, it is always dangerous to make entry and it is inviting trouble to give them 15 - 20 seconds to arm themselves. It is easy to critcize this new ruling from a safe computer. It is quite a differnt thing when you are the one having to go through that door.

I know you are against the drug laws but you have to admit that the drug culture has quite a bit of violence in it.

Gritsforbreakfast said...

@biohazard: It's common for AMERICANS to keep guns in their homes, not just drug dealers. (It's because of that whole Second Amendment to the US Constitution thing - perhaps you've heard of it?) If police have no information someone is violent or armed, the no knock entry is overkill and risks one of those armed Americans justifiably shooting a cop, as the second anonymous commenter mentioned.

Sorry, I'm not ready to say that bashing down someone's door is an acceptable way to serve every warrant, which is the implication of your comments. If there's a reason not to knock, tell the judge. This isn't about the drug laws - the drug laws are just the excuse du jour for gutting the Fourth Amendment.

Crawford's Take said...

Little by little they take more power and justify it by doing it to people for whom the least resistance will be raised.

It's how dictatorships have always been formed and it's how they always will be formed. Piece by piece, right by right until you look around and they're standing in your home without a knock and you have no rights left to stand back on...

I am always amazed by people so willing to hand over power to those so willing to take it...

Anonymous said...

Any jurisdiction with real drug problems is going to have plenty of judges who would take the word of an officer that a no-knock entry is necessary for officer safety, and is therefore reasonable. Asking the judge is a structurally important backstop, but I'd wager there are fewer refused requests to waive knock and announce than there were rejected FISA warrant applications. In other words, judges represent a rubber stamp.

My worry about this ruling is that aggressive warrantless searches and arrests are bolstered by the court's apparent willingness to let cops in the field make crucial determinations without judicial overview of constitutional protecctions. Not that knock and announce is the heart of the fourth amendment, but that deferring to officers in the field cedes the heart of the fourth amendment, judicial review of reasonableness, slippery slope style.

It's hard for cops to remember that the constitution is in place to prevent people like them from usurping authority from the public. They see themselves as being in a battle with criminals, with all the attendant Us and Them point of view, and with the added problem of being "the good guys," who are only doing what they're doing for helpless citizens who really don't understand crime.

The problem for the non-cops in the country is that any cop can cast any one of us in the role of criminal whenever he likes. Maybe he's right, maybe he's wrong. But if this field cop gets to decide the extent of your rights in the face of his suspicion, then we are reliant on his reasonableness, even if he just had a fight with his woman, or got spat on by a punk, or didn't get his fair share of donuts before patrol. Fortunately most of them are good guys who would lay down their lives to protect the weak. But there is nothing more despicable than a corrupt cop. They exist, and the fourth amendment is there precisely to prevent corrupt officials usurping the rights of the citizenry. It is there so we don't have to trust every single cop to do the right thing every single time.

I'm afraid most officers I know think of the constitution like they think of the flag, as a symbol of our country, but not as a framework for avoiding tyranny. Some of them think about it like they think about the ACLU, or Copwatch. The cop can't imagine citizens casting him as a tyrant, despite being free to cast citizens as criminals.

I think that the more no-knock searches we see, the more people will be killed in the process. For every cop's life protected, there will be citizens' lives endangered. This is not a nation of cops. Cops are officers of the civilian authority, often straining to exceed that authority in the often competitive business of law enforcement. Citizen safety is more important than officer safety, and more important than the risk of evidence being destroyed.

The Supremes shouldn't have to be reminded that the rules aren't there to protect the guilty, but to protect the innocent.

Anonymous said...

Apparently the only answer to my question regarding the constitutionality of the "no-knock" doctrine is that it is based on British common law and supported by years and years of case law.

Is it possible that the definition of "reasonable" in the 4th Amend. has changed as it applies to the "no-knock"?

Perhaps there is nothing viable to be gained by knocking and then waiting for 20 seconds before entering?

I would like to see statistics from warrant executions that listed officer/suspect injuries at "knock" warrants vs. "no-knock". My guess would be the police and everyone else are much safer with no warning.

Anonymous said...

"Citizen safety is more important than officer safety,"

This is not true...at all. An officer has to rely on a system that keeps him safe if he is to be allowed to attempt to protect the citizenry. Otherwise employing law enforcement personnel is a waste of time.

biohazard said...

"Is it possible that the definition of "reasonable" in the 4th Amend. has changed as it applies to the "no-knock"?"

Good point. Let's say that the Framers had this specifically in mind when they drafted the Constitution (I doubt it but...). Things have changed quite a bit. There is now contraband that can be destroyed quickly thanks to indoor plumbing. There are now weapons that can penetrate the doors and walls of residences with multiple rounds.

I seriously doubt the Framers wanted poilce officers to seriously risk their lives over a 15 to 20 second wait.

"But if this field cop gets to decide the extent of your rights in the face of his suspicion, then we are reliant on his reasonableness, even if he just had a fight with his woman, or got spat on by a punk, or didn't get his fair share of donuts before patrol."

Well, I guess this is what the court system is for, right? As far as I know, everyone still has the right to a trial.

"Citizen safety is more important than officer safety[...]"

This quote frustrates me to no end. Officers have to be concerned with protecting themselves first. If they are not allowed to take reasonable precautions for safety, you are asking them to just be punching bags. It's not like they are afraid to take risks. After all, they are the ones to run to the sounds of gunfire while you run away. They just don't want to get shot.

Gritsforbreakfast said...

@biohazard, you wrote: "I guess this is what the court system is for, right?"

You're missing the point, just like Justice Jackson predicted you would in the quote at the top of this item - this ruling REMOVES judicial oversight. After this, courts won't enforce no-knock provisions, so whatever the court system is for it's not going to pick up slack for abusive cops like the poster who you reacted to described.

Whether no knock is the right standard is actually a separate question from whether judicial oversight should occur over reasonableness questions at all in interpreting the Fourth Amendment - I think it should, but obviously I'd be in the minority on the US Supreme Court.

Also, ironically, normally it's Scalia, Thomas, and the this majority who argue for an "originalism" that says the Constitution isn't "living" and shouldn't change with the times. They just seem to make an exception to gut the Fourth Amendment, but to me it's awfully hypocritical to do so.

Finally, it's a red herring to say someone is arguing officers shouldn't take "reasonable precautions," and kind of silly. No serious person would say that - you're arguing against a straw man on that one. If it's so reasonable, officers can explain their precautions about not knocking to a judge first. Best,

Anonymous said...

Anonymous said...
"This is not true...at all. An officer has to rely on a system that keeps him safe if he is to be allowed to attempt to protect the citizenry."

---No where is it written that police officers are obligated to protect anyone.

One must should never think that "law enforcement" are the protectors of society. Too many have died assuming that.

Anonymous said...

"One must should never think that "law enforcement" are the protectors of society. Too many have died assuming that."

Really? Interesting comment. So I guess that police arrest cyberpredators, they are not protecting society? How about when they track down and arrest a rapist? No? Maybe they are protecting society when they arrest abusive husbands or drunk drivers? You don't think so?

That was perhaps one of the most ignorant postings I have seen on this site. Without the police, modern society would collapse into anarchy. Wake up...

Anonymous said...

Really? Interesting comment. So I guess that police arrest cyberpredators, they are not protecting society? How about when they track down and arrest a rapist? No? Maybe they are protecting society when they arrest abusive husbands or drunk drivers? You don't think so?

That was perhaps one of the most ignorant postings I have seen on this site. Without the police, modern society would collapse into anarchy. Wake up...


Really? Why is it the Supreme Court has ruled that police are under no obligation to protect the citizens of the U.S.?

There is not even laws that says that the police must respond to a crime.

Where was the police when someone broke into my home? They didn't protect me. Where was the police when the person ran a red light and hit a car? They didn't protect that person.

The police are not protectors of society! The job of the police 90% of the time, is the "aftermath" of crimes.

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