by Radley Balko
The Court’s conservative wing initially saw the case as an opportunity to carve out a “good-faith exception” to the Exclusionary Rule. The facts of Gates didn’t allow for that, but the Court did dismiss the two-pronged test for an easier-to-meet “totality of the circumstances” test. The next year, in US v. Leon, the conservatives got their good-faith exception.11 After Leon, if a police officer inadvertently violated a suspect’s Fourth Amendment rights during a search, but was acting in good faith, the Exclusionary Rule no longer applied. Moreover, the Court wouldn’t second-guess the officer’s intentions. A defendant would have to prove bad faith, generally an impossible task. The ruling was essentially an instruction manual for police to use to get around the Fourth Amendment.
Subsequent rulings further narrowed the Fourth Amendment. In Massachusetts v. Sheppard, the majority again declined to apply the Exclusionary Rule, this time after police knowingly provided a defective warrant to a magistrate.12 When the magistrate returned the warrant, the police didn’t bother to read it before conducting the search to see if the mistake making the warrant defective had been removed. The Court said that was fine. In Segura v. United States, the Court ruled that police who broke into a residence without a warrant, then hung out inside for nineteen hours until they were able to get one, didn’t violate the defendant’s Fourth Amendment rights because they didn’t actually begin searching the place until they had obtained the warrant.13 The Court also declined to sanction the officers, because the majority didn’t believe the ruling would make illegal breaking and entering by police a regular problem. In Nix v. William, the Court introduced the doctrine of “inevitable discovery,” which states that if the police find evidence during an illegal search that they would likely have found if they had conducted the search legally, the Exclusionary Rule doesn’t apply.14
Prior to these rulings, as previously noted, there were still plenty of forced-entry raids into private residences in the name of the drug war. There had already been a number of wrong-door raids and a handful of resulting fatalities. But there were still some checks in place to prevent violent raids from becoming an everyday occurrence and to induce drug cops to work carefully and avoid shortcuts. The Exclusionary Rule was the biggest and most important of these checks. If police didn’t follow the proper procedures before breaking into a house, they risked losing any evidence they might find and wasting the time and effort they’d spent conducting the investigation. It was a significant disincentive—and the Court’s 1983 and 1984 decisions cleaved much of it away.
BECAUSE 1984 WAS AN ELECTION YEAR, IT WOULD NEED TO have an omnibus crime bill of its own. Polls showed that crime was the most pressing domestic issue with the public, so everyone running for reelection needed something to tout on the campaign trail. At this point, there wasn’t any real debate about crime policy. It was really only about which party could come up with the most creative ways to empower cops and prosecutors, strip suspects of their rights, and show they were more committed to the battle than their opponents were. The most significant provision in the newest crime bill again dealt with asset forfeiture. The new proposal was to let law enforcement agencies involved with federal drug investigations share in any asset forfeiture proceeds that the case might produce. Previously, forfeiture revenues went toward general operations. Under the new law, the Justice Department would set up a fund with the cash and auction proceeds from its investigations. After the lead federal agency took its cut, any state or local police agencies that had helped out would also get a share.
The measure was considered uncontroversial at the time, but it is difficult to overstate the effect it would have on drug policing over the next thirty years. With drug investigations now a potential source of revenue for police departments, everything would change.
The law’s impact was immediate. After it passed, for example, the CAMP raids and those like them in other parts of the country were no longer just about putting on a good show and terrorizing the counterculture. Now the raids could generate revenue for all of the police agencies involved. The DEA’s Ruzzamenti was rather frank about it in an interview with Ray Raphael for his 1985 book on the CAMP program, Cash Crop. “The biggest focus of what we’re doing is going to be on land seizures,” Ruzzamenti said. “Anybody who is growing marijuana on their land, we’re going to take their land. It’s as simple as that. It’s done civilly through the federal system. Basically, people have to prove that they weren’t involved and didn’t know about it. Just the act of having marijuana grown on your land is enough to tie it up; then you have to turn around and prove you’re innocent. It reverses the burden of proof.”15
Some people in northern California owned thousands of acres of land, much of it densely forested. Growers were also known to set up operations on someone else’s land, without the owner’s permission. If the feds started a forfeiture process, the owner was then in the difficult position of having to prove his innocence. Even then, federal prosecutors could argue that he should have been more vigilant about policing his property for pot plants. Some landowners faced the loss of hundreds of acres of property over a few dozen marijuana plants grown in an area the size of a backyard garden. Because it was much easier to win land through civil forfeiture than to win a conviction in criminal court, federal prosecutors often offered to drop the criminal charges if the landowners agreed to hand their property over to the federal government.
Those sorts of offers exposed just how fraudulent the government’s justification for its terror tactics really were. Allegedly, these pot growers were the dregs of humanity, greedily poisoning America’s children with their sinister harvest. They were dangerous enough that the government had to send virtual armies to occupy entire towns, buzz homes and chase children with helicopters, set up roadblocks to search cars at gunpoint, and strip suspects and innocents alike of their Fourth Amendment rights. These growers were that dangerous. However, if they were willing to hand over their land, the government was more than happy to let them go free.
Because of the new forfeiture law, police agencies now had a strong incentive to “find” a connection between valuable property and drug activity, even if there was none. They now had an incentive to conduct drug busts inside homes when the suspects could just as easily—and more safely—have been apprehended outside the house. They now had a strong financial incentive to make drug policing a higher priority and to devote more personnel to drug investigations than to investigating other crimes. Closing a rape or murder case didn’t come with a potential kickback to the police department. Knocking off a mid- or low-level drug dealer did. Most perversely of all, the promise of a financial reward actually provided drug cops with an incentive to wait until drugs had already been sold to move in with searches and arrests. A suspect flush with pot or cocaine didn’t offer much forfeiture potential. If they waited to bust him until he’d sold most or all of his supply, the police department got to keep the cash. Subsequent media and academic investigations would bear this out, finding examples of police waiting to bust stash houses until most of their supply had been sold, or of being far more likely to pull over suspected drug-running vehicles in the lanes leading out from large metropolitan areas (when they were likely to be full of cash) than the lanes leading in (when they were more likely to be filled with drugs).
Over the next twenty years, many states would attempt to correct these incentive problems by requiring that any money earned from drug forfeitures be given to a general fund or to a schools fund instead of going back to the police. But under a provision in the federal law called equitable sharing (also known as adoption), all that a state or local police agency looking at a potentially lucrative forfeiture case needed to do was call up the DEA to assist in their investigation. Even cursory involvement from a federal agency made the investigation federal, and subject to federal law. Whatever laws the state legislature tried to pass to curb abuses no longer applied. The federal government then took its cut and gave the rest of the proceeds (sometimes
as much as 80 percent) back to the local police agency.
These forfeiture policies would soon help fund the explosion of SWAT teams across the country—forging yet another tie between the escalating drug war and hypermilitarized policing.
IT WAS AN UNUSUALLY COLD FEBRUARY NIGHT IN LOS ANGELES, and Daryl Gates was riding shotgun in his newest toy, a modified armored personnel carrier. Gates had been asking the city for armored vehicles for years, and he had always been denied. Though Los Angeles officials had fully embraced the city’s SWAT teams by the mid-1980s, they were still squeamish about letting city police use military equipment. But in preparing security for the 1984 Olympics, Gates was able to obtain a couple of old APCs from the Department of Energy. In a former life, they had been used to guard nuclear power plants. After the Olympics, Gates had the vehicles painted blue, emblazoned with a city seal, and—cleverly—identified on the outside with the words RESCUE VEHICLE. It worked. The police commission let him keep them.
Of course, Gates had no intention of using APCs for rescue. He was growing frustrated with the problems his SWAT teams encountered when breaking into fortified crack houses. They had tried ripping doors off their hinges by attaching them to tow trucks. That took too long, giving suspects too much time to destroy evidence. They had tried blasting locks open with specialized explosives called shape chargers. But those could throw off shrapnel and debris, making them dangerous for the raiding cops. Then one of Gates’s subordinates came to him with a new idea: they could attach a battering ram to the front of one of the armored personnel carriers. So Gates had one of the vehicles outfitted with a battering ram and found some abandoned houses slated for demolition that the SWAT team could use for practice.
On this particular night in February 1985, Gates planned to unveil the new weapon on a suspected crack house in a relatively nice Pacoima neighborhood. Gates even invited along a couple of photographers to document his latest innovation for the archives.
After stopping a few blocks away to attach the ram, the APC and the SWAT team approached the targeted house, this time with no less than the city’s police chief riding along. The SWAT team took position. The APC revved up some momentum, hopped the driveway, and punched a hole in the side of the house. It then moved in and out of the hole several times to widen it. (Yes, the symbolism is inescapable.) Once the hole was large enough, the vehicle pulled out, and the SWAT team pounced. Inside, they found two women and three children eating ice cream. No drugs, though police later claimed to have found “traces” of cocaine and items they said were drug paraphernalia. Meanwhile, as the APC withdrew from the house, it hit a patch of ice. The driver lost control, which sent the driver, Gates, and the chief’s new toy careening into the side of a Cadillac parked in the driveway. “It was not our shining hour,” Gates would later write.16
Gates insisted that they had the correct house—he writes in his autobiography that the drug dealer had merely run out of crack and had gone to get more. But it sure didn’t seem like a crack house. Crack houses were usually filthy, heavily fortified, and furnished with the sorts of things necessary to make and sell crack. (Nancy Reagan once famously visited an alleged crack house and remarked, “Where is the furniture?”) Gates had raided a home. It had furniture, a fireplace, a den. More problematic for Gates, it also contained two women and three children. Eating ice cream.
The media and civil liberties advocates piled on. That only made Gates more defiant. He vowed to take his new battering ram to “every single fortified rock house in this town!” In his autobiography, Gates argues that the ram had a deterrent effect, that “it frightened even the hard-core pushers to imagine that at any moment a device was going to put a big hole in their place of business, and in would march SWAT, scattering flash-bangs and scaring the hell out of everyone.”17
The ACLU took Gates to court over the ram. While LAPD officials insisted at the time that they weren’t backing down, the department discontinued its use during litigation. By the time the California Supreme Court resolved the case in 1987, the ram had basically been retired—at least for the time being. The court found the ram to be so excessive as to violate the Fourth Amendment requirement that searches be reasonable, and it ruled that prior to each raid the LAPD would need to get special permission from a judge before using a battering ram. (In the same case, the court also ruled that city police did not need a judge’s permission to use flash-bang grenades.)
Gates’s antics aside, the battering ram at least showed that as of 1985 we were still capable of finding that some drug war tactics went too far. It wasn’t just the California Supreme Court. Public opinion polls also showed strong opposition to the ram. The ram was only used four times before community outrage compelled the department to stop. Gates had been forced to “demilitarize” his APCs by painting them blue and calling them “rescue vehicles” in order to get the city’s police commission to approve them. City officials were still wary about using battle gear on the streets of Los Angeles. A state supreme court was still capable of finding at least some militaristic police tactics unreasonable under the Fourth Amendment. We still had some limits.
UNFORTUNATELY, THAT WOULDN’T LAST. AT THE NATIONAL level, the once-separate trends of militarization and the war on drugs continued to converge. On April 8, 1986, President Reagan signed National Security Decision Directive 221, which designated illicit drugs a threat to US national security. In addition to adding to the drug interdiction responsibilities of agencies like the CIA and the State Department, the directive also instructed the US military “to support counter-narcotics efforts more actively,” including providing assistance to law enforcement agencies “in the planning and execution of large counter-narcotics operations,” “participat[ing] in coordinated interdiction programs,” engaging in combined exercises with civilian law enforcement agencies, and training and helping foreign militaries conduct antidrug operations. The declaration put pot, cocaine, and heroin at nearly the same class of enemy as any nation against whom the United States had fought a conventional war.
There were a few other policies enacted toward the end of the Reagan years that were little noticed at the time but further cleared the way for mass militarization of civilian police agencies. One of the most destructive was a massive influx of federal money to local police departments solely for the purpose of drug policing. The money could be used to start, fund, and maintain SWAT teams, to expand narcotics units, or to pay cops overtime for doing extra drug investigations. Taken with the potential bounty available in asset forfeiture, police departments across the country were now heavily incentivized to devote more time, personnel, and aggression to drug policing and less to investigating murders, rapes, and robberies. There was no money in investigating crimes with actual victims. Drug investigations could pay for themselves—and often brought in additional revenue.
Another new policy was buried in the National Defense Appropriation Act for Fiscal Year 1987. It instructed the National Guard to provide full cooperation with local and federal law enforcement agencies in drug investigations. The law gave the Guard its first budget for counterdrug operations. In 1989 Congress expanded the budget to $60 million. In some places, Guard troops were now even conducting searches and making arrests. But in the short term, the main effect of the new law was to give local law enforcement agencies access to National Guard aircraft.
The other major new policy came in 1987, when Congress ordered the secretary of Defense and the US attorney general to notify local law enforcement agencies each year about the availability of surplus military equipment they could obtain for their departments. The pre-election GOP crime bill of 1968 had already authorized the military to share equipment with local police agencies. But the 1987 law was more proactive. It established an office in the Pentagon specifically to facilitate transfers of war gear to civilian law enforcement. Congress even set up an 800 number that sheriffs and police chiefs could call to see what was available, and it ordered the General Services Administration t
o work with the Pentagon to produce a catalog from which police agencies could make their wish lists.
It had not been that long since Darryl Gates had been compelled to hide from his own police commission the fact that he had obtained a military-issue armored personnel carrier, or since he had had to have his mayor call the US secretary of Defense to get permission to use a grenade launcher. Congress had now authorized—encouraged, really—the transfer of vehicles, armor, and weapons (along with more mundane items like office furniture) that had been designed for use on a battlefield against enemy combatants to be used on American streets, in American neighborhoods, against American citizens.
NOT ALL POLICE OFFICIALS SHARED DARYL GATES’S APPROACH to the use of force. Norm Stamper still remembers the case that changed his mind about police militarization. Stamper joined the San Diego Police Department in 1966 as a beat cop. By March 12, 1987, he had worked his way through the ranks to the position of field operations chief. That was the evening Tommie DuBose died.18
“We were serving a series of high-risk warrants all over the city that day,” Stamper says. “They were going on all day. My guys who were serving the warrants weren’t a SWAT team, but undercover field operations cops who had been working with narcotics. At around six or seven in the evening, they hit a house in east San Diego.”
It was the home of DuBose, a fifty-six-year-old civil servant who had worked for over twenty years for the US Navy. Their warrant was for Tommie’s son, Charles, who was wanted for drug distribution. Tommie DuBose knew his son had a drug problem. Consequently, he was an outspoken opponent of drug use and abuse. “But he had nothing to do with that himself,” Stamper says. “Perhaps somewhat naively, I don’t think he had any suspicion that his son was doing anything more than using.”