by Radley Balko
But that isn’t the way the decision was interpreted. When lawmakers, academics, and the media discussed and debated the knock-and-announce rule over the next twenty years, Ker would be referenced as accepted law, even by civil liberties advocates.
A year after Ker, in 1964, New York governor Nelson Rockefeller pushed two laws that would give police in the state sweeping new powers: the “no-knock” bill and the “stop-and-frisk” bill. (Nine years later he would push through some of the most draconian antidrug laws in the country, collectively known as the Rockefeller Drug Laws.)
The no-knock bill allowed police to get a special search warrant authorizing them to ignore the knock-and-announce requirement, so long as a state judge agreed that one of the exigent circumstances that Justice Clark laid out in Ker was present. The stop-and-frisk bill allowed police to stop, detain, and pat down anyone in a public space whom they found suspicious. The no-knock bill passed with overwhelming support from the New York Assembly and State Senate. The stop-and-frisk bill passed by narrower margins.5
There was at least some opposition. Civil rights groups like the NAACP and the Congress of Racial Equality (CORE) held rallies in protest of both bills.6 The Association of the Bar of the City of New York protested the stop-and-frisk bill but supported the no-knock searches. The New York State Bar Association opposed both and argued that the no-knock bill “flies in the face of a long-established policy that ‘a man’s home is his castle,’ and for the state to invade it, it must strictly comply with safeguards which have been found to be important over the years.” Rockefeller and other supporters emphasized that officers still had to get a warrant. A judge had to be first “satisfied by proof under oath that notice will endanger the safety of the officer or another person, or that the evidence may be readily destroyed.” The bar association answered that “experience has shown that the supposed safeguard of a special oath to the magistrate issuing the warrant would speedily become a boiler-plate routine.”7 That too was a concern that Brennan had expressed in Ker. As we’ll see, both Brennan and the New York State Bar Association would be proven correct.
In the short term, Rockefeller’s no-knock law had surprisingly little impact. The New York Times later reported, in 1970, that while the law “score[d] points with the law-abiding public,” it had almost no impact on how warrants were served in the state. The paper reported that in a “recent” year since the law had been passed (the precise year wasn’t specified), “the New York State Police used the law only 12 times in 1,847 narcotics cases.”8 There were probably more no-knock raids than that. A cop could still decide at the scene that exigent circumstances had materialized after he had obtained a regular search warrant. (It would then be up to a court to decide if that assessment had been correct.)
Nevertheless, there was little indication that the police even wanted the law, and the fact that they used it so little after it was passed suggests that it was more of a political statement than an essential law enforcement tool. Police departments in New York didn’t even appear to find this tool useful, much less essential. Perhaps they found the tactic unnecessarily invasive and aggressive. Perhaps they feared that barreling into a home unannounced was more likely to invite violent retaliation than prevent it. But the law didn’t come with any accompanying public or political cries for New York cops to get more aggressive and confrontational with suspected drug offenders.
Richard Bartlett, one of the bill’s sponsors in the legislature, was serving on a state penal law commission at the time. The commission was charged with interviewing law enforcement officials, criminologists, and other experts, then recommending laws to improve the state’s criminal justice system. Bartlett says that the no-knock law was not the product of his commission’s research. “It was just something one of these groups—I think it was the district attorneys’ association—came up with that picked up political momentum. But it wasn’t anything we studied on the commission.”9
If the police seldom used the no-knock law after it passed, that may have been because crime wasn’t yet the demagogic issue it would soon be. Rockefeller’s push for the laws didn’t come with the war imagery and apocalyptic rhetoric that would soon emanate from Nixon and the cadre of crime-fighting Republicans elected to Congress several years later.
The most lasting effect of the Rockefeller’s push in 1964 was to legitimize no-knock raids. Prior to the law, police only occasionally raided a residence without an announcement. Sometimes they got away with it, sometimes they didn’t. According to the Oxford English Dictionary, the first public appearance of the phrase “no-knock raid” came in 1964. That’s also the first time the phrase appears in the archive of the New York Times. Rockefeller made the no-knock raid a policy, and he gave it a name. No longer merely a decision that cops sometimes make in the heat of the moment, it was now a tactic and an issue. It was something that everyone was either for or against.
IN THE SUMMER OF 1965, LOS ANGELES ENDURED A SUFFOCATING heat wave. Few in the city had air conditioning, particularly in the poorer neighborhoods, so the heat collected in homes during the day, sending residents outside in the evenings in search of a breeze.
California Highway Patrol officer Lee Minikus was headed north on Avalon Boulevard in the Watts neighborhood on his motorcycle on an August evening that summer when a motorist pulled up beside him to indicate that the 1955 Buick Special ahead had been weaving, and the driver might be intoxicated. Minikus pulled over the driver, twenty-one-year-old Marquette Frye. After discovering that Frye had no driver’s license, Minikus asked him to perform a sobriety test.10 Frye put on a bit of shtick, and the two men exchanged jokes and banter. Amused passersby stopped and began to accumulate.
Minikus called to have Frye’s car impounded, and Frye appeared ready to comply with his imminent arrest. But when Frye’s mother, Rena Frye, arrived at the scene, the tenor of the arrest changed. Frye’s mother excoriated him in front of the growing crowd. Frye grew embarrassed, then angry. When Minikus tried to put him into the car, he resisted. When another officer who had arrived swung to hit Frye in the arm with his baton, Frye ducked, and it struck him in the eye. Ronald Frye, Marquette Frye’s brother, then punched Minikus in the kidney and Rena Frye jumped on his back. More Los Angeles police officers arrived. After more scuffling, all three members of the Frye family were arrested. The crowd turned angry. As the police put the Fryes into the backs of squad cars, a member of the crowd allegedly spit on one of the police officers. She too was arrested. According to the police, she too resisted. That only further angered the crowd. As they drove away, Marquette Frye would later say, a friend of his who had joined the crowd shouted to him, “Don’t worry, we’re going to burn this mother down.”
Watts burned for six days. The riots were different from the unrest that had broken out on the East Coast in the previous year. For one thing, while Watts could be a rough neighborhood and had some poor areas, it wasn’t the sort of cramped, crushingly poor ghettos found on the East Coast. Though Watts itself was quite small (about one square mile at the time), the riots spread well beyond its boundaries, eventually covering forty-six square miles. And where previous riots had tended to erupt and then persist in fairly concentrated areas, the Watts rioters were disbursed, random, and disorganized. Once Watts exploded on the night of August 11, 1965, the next five nights were a series of quick flashes and slow burns. Violence would die down in parts of the city, only to flare back up in others. Snipers took positions in elevated windows, then tried to pick off cops, firemen, and pedestrians. Looting and arson were rampant. Yet unlike many previous racial riots, no US military troops were sent to Watts. Instead, on the third night, the state dispatched 13,500 California National Guard troops, who remained under the command of the Los Angeles Police Department (LAPD) for the duration of the rioting.11
Frye’s arrest was, of course, only the precipitating incident. The riots were the culmination of years of animosity between black Angelenos and the LAPD administration of Chief William
Parker. Black rioters took aim mostly at white cops, motorists, and firemen. Looting was directed mostly at white-owned businesses. Parker didn’t help the situation when he compared the rioters to “monkeys in a zoo.”12 By the time they finally died down, the Watts riots ranked among the most destructive in American history. The rioters caused $40 million in losses, damaged or destroyed one thousand buildings, and left more than one thousand injured and thirty-four dead. At least four thousand people were arrested.
In a couple of ways, the Watts riots were the first major incident to nudge the United States toward more militaristic policing. First, Watts made middle America begin to fear crime as never before. Much of white, middle-class America spent five nights watching their TVs as black people looted and burned their own neighborhoods. To them, Watts and the riots in Baltimore, Newark, Washington, and Detroit in the following years were signs of a rising criminal class that was increasingly out of control. The political clout of what Nixon would a few years later call “the Silent Majority” would influence a generation of crime policy geared toward giving police more power, more authority, and permission to use more force.
But Watts also had a more direct consequence. The LAPD’s point man during the riots was thirty-nine-year-old inspector Daryl Gates, who had been ascending the ranks of the LAPD like a Gemini pilot. The riots left Gates feeling that police training and tactics at the time were inadequate to address the sort of threat posed by the snipers, rioting, and violence he witnessed in Watts. “We had no idea how to deal with this,” Gates writes in his autobiography. “We were constantly ducking bottles, rocks, knives, and Molotov cocktails. . . . Guns were pointed out of second-story windows, random shots fired. . . . It was random chaos, in small disparate patches. We did not know how to handle guerrilla warfare. Rather than a single mob, we had people attacking from all directions.”13
At the time, the US military’s foe in Vietnam was using real guerrilla warfare. So Gates thought to ask the military for guidance. There he found not only the tactics and training he thought could help put down the next wave of rioting, but also the inklings of what would become his most enduring legacy.
Gates would create a phenomenon that over the course of his career would reach virtually every city in America. It would change the face, the mind-set, and the culture of US policing from the late 1960s on, through today, and probably into the foreseeable future.
He started America’s first SWAT team.
IN SEPTEMBER 1953, PRESIDENT DWIGHT EISENHOWER nominated Earl Warren to be chief justice of the Supreme Court. He’d later call it one of his greatest mistakes. Warren was a former district attorney, attorney general, and three-term governor of California. He was also the federal official who oversaw the internment of Japanese Americans in California during World War II. He seemed an unlikely candidate to build a consensus on the Court to protect the rights of the accused—which probably made his critics all the angrier when he did.
The first major criminal justice decision from the Warren Court was Mapp v. Ohio in 1961. Police in Cleveland suspected that Dollree Mapp had some evidence hidden in her house related to a bombing and a gambling ring. When she refused to let them in, they showed a fake warrant, forced their way inside, and searched her home. They didn’t find the evidence they were looking for, but they did find some illegal pornography. She was arrested, charged, and convicted. The police never did produce a search warrant. The Court ruled that the Fourth Amendment’s protection from unreasonable search and seizures applies to the states through the Fourteenth Amendment. And under the 1914 case Weeks v. United States, evidence seized in an illegal search could not be used at trial. Police in every jurisdiction in the country were now obligated to uphold the Fourth Amendment.14
The next year the Court found in Robinson v. California that incarcerating someone merely for being addicted to drugs is a violation of the Eighth Amendment.15 Two big cases followed in 1963. In Gideon v. Wainwright the Court ruled that states are obligated to pay for an attorney for indigent defendants,16 and in Brady v. Maryland it ruled that prosecutors must turn over exculpatory or mitigating evidence to defendants when the evidence is material to guilt or to the defendant’s sentence.17
In 1964 the Warren Court ruled that suspects have the right to an attorney, not just at trial, but during police interrogations as well.18 The famous Miranda decision came in 1966, which held that police must notify suspects of their Fifth Amendment rights against self-incrimination, and to be represented by an attorney.19 The decision was widely derided by conservatives. It wasn’t particularly popular with the general public either. It quickly became a rallying cry for the law-and-order crowd, who were appalled at the notion that the police could be required to tell suspects that they weren’t obligated to answer their questions.
The Warren Court’s final controversial decision, at least from the law-and-order side, was Katz v. United States in 1967.20 In that case, the Court expanded the Fourth Amendment’s protections from “unreasonable search and seizure” to the broader standard of “a reasonable expectation of privacy.” In practical terms, the Fourth Amendment would no longer be limited to physical intrusions. If law enforcement officials wanted to tap a phone, for example, they would need to get a search warrant.
Critics of the Warren Court blamed its decisions at least in part for the rise in crime that began in the mid-1960s. William F. Buckley called Miranda a “venture in abstractionist imperialism” and noted that “already the reports are coming in from the police commissioners who are, not so quietly, despairing.”21 Conservative columnist James Kilpatrick wrote that the Warren Court was “often pleased to turn the Constitution into wax.”22 And it wasn’t just conservative intellectuals. The Philadelphia Inquirer wrote after Miranda that “it would be a pity, at a time of increased lawlessness, if more attention is given to the rights of lawbreakers than the rights of the public to have effective police protection.” The Columbia, South Carolina, newspaper The State opined that the Court “wrapped its flowing robes around all prisoners so as to virtually immunize them” from police interrogations. The Richmond Times-Dispatch was blunter still, calling the Court “an ally of the criminal elements in America.”23
Ironically, the Warren Court’s last controversial criminal justice decision actually expanded police authority. Terry v. Ohio was also arguably the decision that would have the most impact on the criminal justice system. In 1968 the Court ruled that police officers can stop, detain, and frisk someone based on no more than “reasonable suspicion” that the person is engaged in criminal activity or about to commit a crime. The vote was 8–1. In the coming years, more conservative Supreme Court lineups would expand the window that the Warren Court created in Terry. “Stop and frisk” would become a widely used, highly controversial, often abused police tactic.24
The Warren Court’s more controversial decisions are still contentiously debated today. In his book Breaking Rank, former Seattle police chief Norm Stamper calls the rulings “the ones that most often piss off the cops.”25 Current Supreme Court justices Antonin Scalia and Clarence Thomas continue to express doubts about both Miranda and the Exclusionary Rule, which holds that evidence obtained through illegal searches and interrogations can’t be used against a defendant at trial. Current chief justice John Roberts argued against both for much of his career, and legal pundits have speculated that the Court may continue to water down or even overturn one or both during his tenure.26
But ultimately, Eisenhower’s appointment may have served the law-and-order right better than he could have known before his death in 1969. Although the Warren Court’s legacy unquestionably granted new protections to criminal suspects, it also gave conservative politicians a villain to rail against—and run against. The Court’s controversial decisions spurred a generation-long anticrime backlash that countered its decisions with policies that gave police more power, more discretion, and more authority to use more force.
EARLY IN THE MORNING OF AUGUST 11, 1966, CHARL
ES Whitman—an Eagle Scout, an ex-Marine, and a former altar boy—went to his mother’s apartment and shot her in the back of the head. He then returned to his own apartment and stabbed his wife to death. He left a note in which he explained that because he loved the two women, he had no choice but to kill them. He wanted to spare them the embarrassment of what was to come.27
Whitman had been experiencing changes in his behavior for months. He had seen a university psychiatrist, and during a single two-hour session confessed that he was having violent impulses with increasing frequency, and felt less and less able to suppress them. Dr. Maurice Dean Heatly described in his notes a man who was “oozing with hostility.” Whitman relayed a fantasy about “going up on the tower with a deer rifle and start shooting people.”
After killing his wife and mother, Whitman did exactly that. He packed a footlocker with sandwiches, gasoline, three rifles, a sawed-off shotgun, two handguns, water, and enough ammunition for a day at the shooting range. At around 11:00 AM, Whitman rolled the footlocker into an elevator in the clock tower building at the University of Texas at Austin. Posing as a maintenance man, he took the elevator to the twenty-seventh floor, just below the clock. There he met fifty-one-year-old receptionist Edna Townsley—and killed her by repeatedly striking her with the butt of a rifle. Whitman hid Townsley’s body as two visitors came down from the tower, then barricaded the exit. He killed two more tourists he found ascending the stairs.