by Radley Balko
In 2003 the Supreme Court unanimously ruled that fifteen to twenty seconds is sufficient time for police to wait after knocking before forcing entry, though they conceded that it was a “close call.” The search warrant for Banks was served on a Wednesday afternoon, a time of day when fifteen to twenty seconds might seem like enough time. But a warrant served at night, while everyone is asleep—most likely in a bedroom removed from the front door (where bedrooms usually are)—would be quite a bit different. The opinion, written by Justice David Souter, made no such distinction. Souter also indicated that even shorter wait times might be justified in narcotics cases because of the disposableness of the evidence. Here again, a US Supreme Court opinion had taken a position that makes it easier to use violent dynamic-entry tactics on low-level drug offenders than major ones (because smaller quantities are easier to destroy than larger ones) and for nonviolent offenses like drugs or gambling (where the incriminating evidence is generally disposable) than for crimes like weapons violations or murder (guns and bodies being tougher to destroy quickly).
By Souter’s analysis, “what matters is the opportunity to get rid of cocaine, which a prudent dealer will keep near a commode or kitchen sink. The significant circumstances include the arrival of the police during the day, when anyone inside would probably have been up and around, and the sufficiency of 15 to 20 seconds for getting to the bathroom or the kitchen to start flushing cocaine down the drain. . . . It is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter.”
As discussed earlier, the knock-and-announce rule arose out of the common-law tradition and the Castle Doctrine valued so highly by the American Founders. To protect the sanctity of the home, the police were obligated to give a homeowner the opportunity to grant them entrance in order to prevent a violent confrontation, the destruction of his door and property, and the infliction of terror upon him and his family. Souter’s direction to police to consider disposal time instead of the time it would take an occupant to come to the door not only does away with the notion that the purpose of the knock-and-announce rule is to give citizens the opportunity to avoid a violent confrontation, it also presupposes that all drug suspects are guilty. Souter’s only concern was with making sure the knock-and-announce requirement doesn’t give drug offenders the opportunity to destroy evidence. And every other justice agreed with him.
In Banks, a unanimous Court decided that preserving the evidence needed to convict people suspected of nonviolent, consensual drug crimes was more important than protecting innocent people from the violence of a paramilitary-style police raid. Thirty years after it began, the modern drug war had finally killed the Castle Doctrine.
Next up was the 2006 case Hudson v. Michigan, in which the Supreme Court effectively erased its own recognition of the knock-and-announce requirement ten years earlier.25 By a 6–3 vote, the Court decided that even when police conduct a clearly illegal no-knock raid, any illegal evidence they seize can still be used against the defendant at trial. Writing for the majority, Justice Antonin Scalia took aim at that old conservative nemesis, the Exclusionary Rule. Scalia wrote that the rule is excessive and inappropriate in such cases. He added that there are other ways of holding police officers accountable when they violate the knock-and-announce requirement. Scalia explained that police management and internal affairs departments could, for instance, bring disciplinary action against offending officers, or innocent victims of illegal raids could sue the offending officers in court. He also cited the existence of civilian review boards. If you’ve read this far into this book, it should be clear that those solutions haven’t been particularly effective at preventing these abuses.
In pointing to these other possible remedies for knock-and-announce violations, Scalia cited the work of criminologist Sam Walker, who has done extensive research on the development of police professionalism. In the study Scalia cited, Walker concluded that there has been enormous progress “in the education, training and supervision of police officers.”26 Scalia argued that this progress was gradually making the Exclusionary Rule obsolete. But Walker’s thesis was that this progress has come about in part because of Supreme Court decisions applying the Exclusionary Rule, particularly during the Warren years.
Walker was horrified. Shortly after the Hudson decision came down, in an op-ed in the Los Angeles Times headlined “Thanks for Nothing, Nino” (Nino is Scalia’s nickname), Walker wrote:
Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.27
The Court wasn’t finished. In 2011, another 8–1 vote found that police officers may forcibly enter a home without a warrant if exigent circumstances exist even if police create the exigent circumstance themselves. In the case before the Court, an informant had conducted a cocaine buy while working for police in Lexington, Kentucky. The police then followed their suspect into an apartment complex, at which point they lost him. They claimed, however, that while they were there they smelled marijuana coming from an unrelated apartment. They knocked, and when they heard “rustling” inside, kicked down the door. Inside, they found marijuana and cocaine. The Kentucky Supreme Court threw out the conviction, writing that in this case “police have created their own exigency, and cannot rely on the fear of evidence being destroyed as a justification for a warrantless entry.”28
The US Supreme Court disagreed. Writing for the majority, Justice Samuel Alito found that so long as the police conduct itself is lawful before the exigent circumstances manifest, the subsequent search is legal.29 The Court has a history of assuming good intent on the part of police officers (see the “good-faith exception” to the Exclusionary Rule). But as the lone dissenter, Justice Ruth Bader Ginsburg, explained, decisions like these can become a how-to guide for cops to undermine the Fourth Amendment. “The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”30
THINGS WERE GETTING BAD IN NEW YORK CITY. BY 2002, the New York Police Department (NYPD) was conducting over 450 drug raids per month, the vast majority under no-knock warrants. In October 2002, Norman Siegel, former director of the New York Civil Liberties Union, held a press conference to announce that he was representing the victims of three such raids—all of them involving raids on wrong addresses—in a lawsuit against the city. Siegel pleaded with police to use more caution. “We must do a better job of no-knock search warrants,” he warned. “Otherwise, someone might wind up dead as a result of how we implement this procedure.” Less than a year later, his prediction came to pass.
On May 16, 2003, a dozen New York City police officers stormed an apartment building in Harlem on another no-knock warrant. They were acting on a tip from a confidential informant who told them a convicted felon was dealing drugs and guns from the sixth floor. But there was no felon. The only resident in the building was Alberta Spruill, a fifty-seven-year-old city employee described by friends as a “devout churchgoer.” Before breaking in, the raid team set off a “flash-bang” grenade—a nonlethal weapon that emits a bright flash and deafening thud used to shock and disorient criminal suspects or the enemy in combat situations. The explosion of bright white light and accompanying thunderous boom stunned Spruill. She fell to the ground. Once the police figured out their mistake, an officer attempted to help Spruill to her feet. But she went limp and slipped into cardiac arrest. She died two hours later.
The ensuing investigation found that the NYPD’
s informant had flat-out lied and that the officers who conducted the raid had done no investigation whatsoever to corroborate the tip. A police source later told the New York Daily News that, in fact, the informant’s record was so poor, he was due to be dropped from the city’s informant list.31 Yet somehow an uncorroborated tip from an informant with a prior success rate somewhere around 0 percent was still enough to get the Manhattan district attorney’s office and a state magistrate to sign off on a no-knock warrant. The entire process—from the conversation with the informant until the moment Alberta Spruill’s heart stopped beating—took only a matter of hours. In an article the following June, the New York Times noted another horribly botched raid, on Timothy Brockman, a frail, sixty-eight-year-old former Marine. The raid was so violent that “next-door neighbors, afraid that the building had been bombed by terrorists, fled with their pajama-clad children.” The police had the wrong house. Sources interviewed by the paper said the operation was “muddled by erroneous information” and “the belief in a phantom informant.” The assault on Brockman’s home illustrated “not only the ways that aggressive police work can go wrong, but also the willingness—or hesitance—of the authorities to take responsibility for preventing such errors. At the time, the incident received no publicity and no serious attention from the police leadership.” Brockman was raided two days before Alberta Spruill.32
In its own follow-up piece, the Village Voice found that reports of botched no-knocks had been pouring into the NYPD for years. “Until Spruill’s death, the NYPD had done nothing to stem the number of incidents,” the Voice wrote, “despite receiving a memo from the Civilian Complaint Review Board in January noting the high number of raid complaints. Last March, the NAACP also approached NYPD commissioner Raymond W. Kelly about the raids.” The raids were straining already tense relations between police and minority communities. One of the wrongly raided, Orlando Russell, told the Voice that while he had once been an “upstanding citizen,” he was fed up with the number of no-knock raids on low-income and minority communities. “Any cop walking [into his home] without an invitation better have a body bag.”33
That 1998 New York Times story ran under the headline “As Number of Police Raids Increase, So Do Questions.” The article noted that the number of narcotics search warrants issued in New York City had doubled from 1994 to 1998, from 1,447 to 2,977. And most of these raids, according to the Times, were drug raids done with no-knock warrants.
Despite ongoing media reports of “wrong-door” raids throughout the late 1990s, city officials continued to insist that such incidents were uncommon and nothing to be alarmed about. And yet, in February 1998, the NYPD circulated a memo among the city’s police officers instructing them on how to contact locksmiths and door repair services should they break down in the wrong home. Outwardly, the claim was that these were isolated incidents, rare as a lightning strike. Inwardly, the department knew they were common enough that officials had established procedures for fixing wrongly raided doors.
Though complaints about botched raids came in regularly, the city’s Civilian Complaint Review Board (CCRB) could do little to stop them. The board was hamstrung by bureaucracy, limited jurisdiction, and antagonism from the police union. The review board was only permitted to review cases in which the raiding cops themselves had acted improperly. It couldn’t look at the substance of an individual warrant to determine, for example, if it was proper for a judge to have issued it in the first place. The board also couldn’t give victims the information they needed to seek compensation—or even an official apology and admission of error, which some needed to appease landlords or employers who were unpersuaded by their protestations of innocence. And so, as the number of no-knock raids in New York City soared, NYPD officials would tell victims that their only recourse was the CCRB, knowing full well that there was little the CCRB could actually do. With its jurisdiction limited to the conduct of police in specific raids after the warrant was issued, the review board not only was unable to investigate whether a raid should ever have been conducted in the first place, it also couldn’t look into the use and abuse of informants, whether the same cops were conducting too many raids, or whether the same raid teams were making the same mistakes.
In 2003 Police Chief Raymond Kelly estimated that at least 10 percent of the city’s more than 450 monthly no-knock drug raids were served on the wrong address, were served under bad information, or otherwise didn’t produce enough evidence for an arrest. Incredibly, Kelly made that estimate in defense of the way the NYPD was handling these raids. Some forty-five times per month, innocent New Yorkers were getting raided, terrorized, sometimes injured, and nearly killed. (Police officials would argue that in a significant percentage of cases where a raid came up empty the suspects weren’t actually innocent; they were just successful at moving their stash before police could serve the warrant.) And the city’s police chief found that figure acceptable. It was just more collateral damage. Kelly also admitted that the NYPD didn’t keep track of botched raids, leading one city council member to speculate that the percentage could be even higher.
So what about the city’s judges, the public servants charged with protecting the Fourth Amendment? Newsday found that many courts in the city didn’t even keep no-knock warrants on file after they were issued and executed. That is, not only did the courts not notice or care about what was happening, but they made it impossible for anyone else to investigate possible patterns of abuse. The paper reported that Judge Juanita Bing Newton, who oversaw all the city’s criminal courts at the time, said “she doesn’t necessarily believe the court’s role in record-keeping is as a ‘Big Brother,’ to check the police and district attorney,” a statement that not only showed an astonishing lack of concern for the rights of New Yorkers, but suggests that Newton didn’t actually know the origin of the phrase “Big Brother.”
After Spruill’s death, New York State Supreme Court judge Brenda Soloff refused to unseal the affidavit and search warrant authorizing the raid—there was “no significant need,” she found. Apparently the death of an innocent fifty-seven-year-old woman and the city government’s regular terrorization of its citizens weren’t “significant” concerns. In favor of keeping the documents sealed, Soloff cited concern for the safety of the confidential informant—the same informant who had given nothing but bad information in the past, and whose tip was the reason an innocent woman was dead. (The concern wasn’t valid anyway—the documents could have been released with the informant’s identity redacted.)
A day after the New York City Council held hearings on no-knock raids in response to Spruill’s death, Manhattan borough president Virginia Fields held hearings of her own. According to the Village Voice:
Dozens of black and Latino victims—nurses, secretaries, and former officers—packed her chambers airing tales, one more horrifying than the next. Most were unable to hold back tears as they described police ransacking their homes, handcuffing children and grandparents, putting guns to their heads, and being verbally (and often physically) abusive. In many cases, victims had received no follow-up from the NYPD, even to fix busted doors or other physical damage.
Some complainants reported that they had filed grievances with the [Civilian Complaint Review Board] and were told there was no police misconduct. Unless there is proven abuse, the CCRB disregards complaints about warrants that hold a correct address but are faulty because of bad evidence from a [confidential informant].34
Perhaps no one was more victimized by the battlefield mentality that had set in at the NYPD than Walter and Rose Martin. The Brooklyn couple, both in their eighties, were wrongly raided more than fifty times between 2002 and 2010. The couple filed numerous complaints with the police department. They wrote letters to Mayor Michael Bloomberg and NYPD commissioner Ray Kelly. They were ignored. In 2007 they at least got someone at the NYPD to try to wipe their address out of the department’s computer system. But the raids continued. It wasn’t until the couple went to the media
in 2010 that the city finally looked into the problem. Back in 2002, someone had used the Martins’ address as a dummy address to test the department’s new computer system. When the new system was implemented, no one removed their address. So anytime NYPD cops in certain precincts used the system for a warrant and forgot to remove the dummy address to put in the correct one, the police would end up at the Martins’ door.
At least that was the official explanation. But the New York Daily News tracked down the previous owner of the house, who said he too had been frequently visited by cops, going back to 1994. It seems safe to say that NYPD cops weren’t repeatedly terrorizing an elderly couple deliberately. But the Martins’ inability to stop the raids until they went to the media is more evidence that even after the Spruill incident, the department just wasn’t all that concerned about mistaken raids and the rights of New Yorkers.
“They should have listened to us all those years when we tried to tell them something was happening,” Rose Martin told the Daily News. That was certainly true in her case. It was also true of the dozens, probably hundreds, of complaints from victims going back to the early 1990s.35
Despite public outcry, intense media coverage, and promises for reform by public officials, change after Alberta Spruill’s death was slow and sparse. The key recommendation from the Fields report was that the NYPD produce an annual report detailing “all statistics regarding the execution of warrants.” Fields believed that such a report would provide some transparency and accountability in the issuance and execution of drug warrants, particularly those authorizing no-knock raids. The NYPD issued no such report in 2005.