The cop went to the back door and pounded on it. No answer. Finally, the door was opened by—another cop! They entered with no warrant, no hot pursuit of anyone with drugs or a gun, and found a vacant flat empty of furniture, under renovation—and no drug dealer. “How do you lose a two-hundred-pound guy?” one officer asked in frustration.
They gave up. They couldn’t search further without warrants, and which apartment would they cite to a judge? They hadn’t seen the dealer enter a particular one, so they couldn’t proceed, despite a tendency by the Supreme Court to give law enforcement more and more latitude for warrantless entry. The Court ruled in 1976 that Philadelphia cops were justified in following a woman into her house after she’d just been paid for heroin by a U.C.34 In 2006 it exempted police from the warrant requirement if they saw violence inside a private home—in that case, a juvenile punching an adult during a loud party with underage drinking.35
But here, the narcotics squad was legally stuck, and they weren’t about to search the whole block unconstitutionally, at least not with me along for the ride.
“Cops take shortcuts,” said one of Brennan’s men, a lean veteran with a shock of gray hair. He didn’t do it himself, he said, because he had seen the consequences, like a kid who gets caught cheating in first grade and never does it again. A case many years ago, when he was fairly new to the force, was thrown out because the officer in charge failed to get a warrant. A chambermaid had seen drugs in the room of a prominent basketball player in a Washington hotel. The cop just went into the room, instead of securing it and getting a warrant, and seized the drugs. The judge excluded the evidence.
Since then, the lanky officer told me, he’d been scrupulous about warrants, even to the displeasure of his colleagues on the force, many of whom prefer to just do the search. He remembered once when officers wanted to open two suitcases and he insisted on waiting for a warrant. They were mad at him. But he was right, and they made the case, because inside one they found six kilos of cocaine, and fourteen in the other. “Cops take shortcuts.”
CHAPTER FOUR
With Warrants and Without
The Poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.
—William Pitt
HOME INVASION
POLICE! SEARCH WARRANT!”
The policewoman knocked loudly. She waited about two seconds. She yelled again, “Police! Search warrant!”
In three or four more seconds, too little time for anyone to answer the door, she stepped aside to make way for a brawny officer in civilian clothes. He cradled a cylindrical steel battering ram fitted with handles.
He swung it back and slammed it against the double doors. From inside came a woman’s yelp of alarm. Again he swung the ram, the doors burst open, and a dozen armed cops rushed in, big men suddenly filling the house, swarming through the broken entryway and all through the ground floor, up the stairs, fanning out rapidly into every bedroom without a word of explanation to the owner, a black woman of middle age standing with her mouth open, her eyes fixed wide.
She had been in her kitchen talking on the phone. She picked it up again. “They just raided my home,” her voice trembled to someone at the other end of the line. Then she hung up. Her personal sanctuary had just been invaded in accordance with the Constitution.
The last bastion of the Fourth Amendment is the home. Honored by history and protected by law, it remains the zone of privacy least vulnerable to the cold pragmatism of judges and legislators who diminish the people’s rights in the name of security and efficiency. Unlike automobiles, boats, bank statements, travel records, and even the pockets of a person on the street, the house is mostly—not always, but mostly—impenetrable to police intrusion without a judge’s order.
Yet even a legal search feels like a violation. Judicial oversight cannot dilute its brutality. Courteous officers cannot sweeten the insulting upheaval that turns every possession out of the private darkness of drawers and closets into the cruel light of chaos. It is a form of plunder sanctioned by the state, which in the name of order creates disorderly wreckage even when the police observe the strictest requirements of the Constitution.
This was a row house, once elegant, in Northeast Washington, D.C. A confidential informant had told a narcotics officer of buying drugs here, and on the basis of the officer’s sworn affidavit as to the C.I.’s reliability, a judge had signed a search warrant.
The squad did not have the dealer’s name, but the officers had a briefing in a nearby parking lot by the lead detective, a lanky woman named Lavinia Quigley, an African-American dressed casually in a red shirt and white shorts to blend into the neighborhood. They were a motley bunch of cops, some with long hair and jeans, a few in uniform. “It’s a big house,” she told them. “He keeps drugs upstairs. The good thing is his toilet don’t work. The reservoir don’t fill up fast. I ain’t seen no dogs, no kids.”
The officers were tense and hurried when they entered. As in executing every such warrant, they worried that someone might pull a gun, or at least might flush away the evidence. They left their own guns holstered, but they were as edgy as soldiers going into combat, their hands ready, their eyes watchful. They scattered rapidly through the old house and found nobody else.
They kept the owner, “Wendy,” seated in a straight-backed chair in the living room. You have no right to watch a search even in your own home, and it’s standard practice to prevent you from wandering around so you can’t hassle the cops or hide evidence or grab a gun. This is fine with the Supreme Court, which ruled in 1981 that officers may detain occupants while executing warrants.1
The house was already in some disarray when they arrived. Odd pieces of shabby furniture were scattered about; clothing lay on beds, floors, and tables; here and there stood boxes that, when searched, disgorged bits and parts of stereo equipment, CDs, and other random pieces of people’s lives. There were no books.
The officers added to the mess many times over. When they confronted a locked bedroom door upstairs, they didn’t ask for a key but just busted in the door, afraid somebody armed might be lurking inside. They pulled clothes out of closets, felt quickly along the seams, carefully examined pockets, and threw everything on the floor. They upturned mattresses, emptied drawers onto beds and floors, ransacked storage boxes, and spent a good deal of time admiring the architecture of the house: “I’d love to have this.” “This is a gold mine.” “This is real construction. This is the way they used to build houses.” The hardwood floors of the attic were authentic two-by-sixes, one officer observed, laid at a time when they were actually a full two inches thick and six inches wide, “instead of what you get now at Home Depot.” The attic reminded another cop of the one in his childhood home, so big that he used to roller-skate up there.
The unit commander, Sergeant J. J. Brennan, listened to the rhapsodic talk for a minute and said, “I’m glad you guys are finding all this good construction. How ’bout finding some drugs?”
They did not find drugs, however, just some razor blades for cutting and ziplock bags for packaging. In the back bedroom, which was full of men’s clothing, they found ammunition—a box of nine-millimeter shells on a shelf in the closet, and a few rounds atop the stereo—illegal at the time in D.C. In the middle bedroom, among the many purses in the closet, an officer opened a black pocketbook, felt something hard inside a pair of black tights, unwrapped it, and shouted, “I got a gun.” It was a .38.
In the locked front bedroom, a big cop unpacked a white plastic storage box sitting on the floor, and nestled among the clothes he discovered a small Beretta pistol, fully loaded. He hollered for help, saying he had never seen such a gun and was scared that it might go off if he touched it. Somehow the drill seemed senseless, because once he had gathered others around, he
then warned them to step away as he picked it out gently, and safely. Buried further down in the same box, he discovered a sealed letter-size envelope stuffed with cash—the top bill a hundred, the rest singles—which the cops then confiscated as possible drug money.
Downstairs, an officer found a closet locked, asked Wendy for the key, and drew his gun while he opened it. Pawing through the boxes inside, he came across a forgotten Confederate ten-dollar bill carefully preserved in a plastic envelope. He handed it to Wendy, told her it might be valuable, and got a wan smile in return.
“Who do you live here with?” Brennan asked her. He was dressed casually in civvies, his longish hair was slightly disheveled, his voice calm, his low key a relaxed counterpoint to the crisp tempo of the men searching around him.
“My son,” Wendy answered, and his girlfriend, she added. He was thirty. Wendy worked at the Department of Homeland Security in a position that had become permanent just a year earlier. “I might as well kiss my job goodbye,” she remarked sadly.
Although they had found no drugs and had only an informant’s word, Brennan and Quigley had absolutely no doubt that the house was being used to sell narcotics. They figured the son was dealing, and maybe his girlfriend as well, and since he wasn’t home they weren’t surprised not to have found a stash, which dealers didn’t always keep in their houses, especially their mothers’ houses.
One after another, as a tag team of cops questioned Wendy, lectured her, warned her, and threatened her, snippets of information came out like the disjointed belongings being strewn about her home.
She played the innocent convincingly. She got up early every morning and went to work and returned at night without knowing what was going on under her roof during the day, she insisted. Quigley asked whether her son had ever been arrested for drugs. Yes, she answered. “Using or selling?” Quigley asked.
Wendy answered in a small voice, “Selling.”
“While you out bustin’ your butt, you son doin’ this stuff,” Quigley said disgustedly.
Wendy was sitting, and Detective Quigley stood, bending her tall frame over her and scolding her like a stern mother with a naughty child. “Tell your son he got to get out, do his business elsewhere,” she commanded.
The cops were trying to like her. She was not confrontational, she seemed genuinely in shock, and she was cooperating. “Can I have a hug?” Wendy asked at last, and Quigley leaned over and gave her one.
After the Beretta was found in the front bedroom, an officer came down and asked Wendy a few questions without telling her about the gun. Which room was hers? The front bedroom, she said.
The cop had hoped for a different answer. He turned away and made a face of disappointment and regret. Then she was peppered with queries by Quigley and another black officer. They asked about the cash that had been found. She had money hidden all over the house, she said. Where? She was vague, which annoyed them, because they wanted to learn whether she had known of the cash in the white box.
They asked about the girlfriend but couldn’t get the last name from her. They asked who had access to the locked front bedroom. She alone, Wendy said. Then, when they told her that they’d found money and a gun in there, she speculated that maybe somebody else could have entered by undoing the chain. But the room had been locked with a key, not a chain. Where did the girlfriend sleep? In the front bedroom with her, Wendy said, not with her son.
The cops were incredulous. A thirty-year-old son who doesn’t sleep with his girlfriend? “I don’t allow that kind of thing in my house,” Wendy said indignantly. The cops didn’t laugh.
“You think your son is man enough to step up and own the guns so his mama don’t get locked up?” asked Quigley.
“Don’t know. Kids nowadays,” she answered.
“I’m trying not to lock you up.”
“You’re treating me like I’m a terrible person,” Wendy said. “I get up early in the morning, go to work, come home.”
“The government could take your house,” Quigley warned, and gave an example of one nearby that had been forfeited as a drug-dealing site.2 “If I lock you up you could lose your job.”
“I haven’t seen anything illegal,” Wendy declared. “You all did the investigation, you should know I haven’t done anything. You should know who the players are.… Somebody should come tell the parent that something’s going on.”
Technically, while Wendy wasn’t free to walk around inside her house, she may have been free to walk out of it entirely, so she may not have been in detention, meaning that she may not have been entitled to the Miranda warning about her Fifth Amendment right not to answer questions. But it was a close call, as Brennan conceded later, and one a defense attorney would have made an issue had she incriminated herself by admitting to owning one of the guns. But she did not, and Brennan felt the ownership was too ambiguous to make a case.
“I might as well kiss my job goodbye,” Wendy said again.
“I just hope these guns are your son’s,” Quigley remarked.
This would have been a different conversation had it occurred three years later, after the Supreme Court decided in 2008 that the Second Amendment protected a right to keep a gun at home for self-defense. Wendy’s possession would have been legal, provided she had registered the firearms and received a license. But even if she hadn’t, the U.S. Attorney’s office wouldn’t have prosecuted, since the guns were inside her house. Although the D.C. Attorney General’s office might still bring criminal charges in such an instance, the Justice Department stopped doing so after District of Columbia v. Heller. The department also stopped countersigning search warrants for guns in homes unless connected with drugs or owned by classes of people still barred by federal law from possessing firearms, who included convicted felons, illegal immigrants, and the mentally ill.3 Outside the home, though, guns were still prohibited, and police gun squads still operated vigorously.
Inside residences, drugs remained a key target of police searches, and this one was finished. Quigley was bending over Wendy and explaining the inventory of items seized (the guns, the ammunition, the money, and photographs to be used to identify her son). A copy was left with her.
At 7:20 p.m., one hour and ten minutes after their arrival, the horde of cops trooped out, leaving mattresses upturned, closet contents heaped on floors, stuff from boxes scattered about, and perhaps a hard lesson imprinted on a mother’s life.
As Brennan walked through the doors, left unlockable in a dangerous neighborhood, he teased Quigley about another search, when she had forgotten to look behind the front door and nearly missed a kilo of cocaine. She laughed and checked a bag behind this door. Nothing incriminating.
Without an arrest, the search had yielded only guns and ammunition, no criminals, illustrating the discretion that officers see themselves applying every day to the uncertainties of these neighborhoods. Back in the car, Brennan turned around to me. “People don’t realize that the benefit of the doubt is given out here on the street.”
The reason, sneered an officer in the passenger seat, was that if a case is to be filed, “the U.S. Attorneys want it on a pillow on a nice little china plate.”
Such perfection is not always demanded by judges, however, when they examine applications for search warrants they authorize. The forms often contain sleazy sources of dubious tips that police cite in asserting probable cause to believe that criminal evidence can be found in one house or another. The netherworld of snitches, though not a pretty place, is essential to police work, and it provides constitutional legitimacy.
After the search at Wendy’s, on the way back to the Narcotics Branch, Brennan went trolling for informants. He swung into an alley behind deserted buildings that stood like broken derelicts near the railroad yards. He squeezed the patrol car around a sharp bend and pointed to a vacant space, cupped between buildings, where he had seen addicts hang out. Now it contained only shadows, but down at the end of the alley, a young black man in a white T-shirt was walkin
g away.
Brennan and his partner got out and shouted at him, “Come here!” He didn’t have to stop, of course, and he didn’t have to do what he did—turn around and come ambling back toward the cops. They couldn’t seize him, because no probable cause existed to believe that he had committed a crime. In the deepening dusk of a back alley near the railroad tracks, however, the Constitution seemed like a faded idea.
The young man muttered that he was just taking a piss. They asked for his ID. “I ain’t got no ID. Somebody took my wallet.” They asked his name, he gave one, and they asked if that was his real name. Let’s call him Vincent Franklin. Brennan’s partner went back to the car’s computer and ran it through WALES. No criminal record.
While they had him leaning his hands on the hood of the patrol car, Brennan asked him, “Do you use drugs?”
“Yeah, man. Crack. I’m trying to get off it.”
“Where do you get the money for it?”
“Panhandling—one hundred to two hundred dollars a day.”
“Did you ever work with the police?” Franklin shook his head. “We need people to go make a buy,” Brennan explained. “Then we get a search warrant, and you get paid. A lot of people don’t like to do that. They think it’s being a snitch. But a lot like it. You get two hundred dollars for a gun, one hundred dollars per person arrested.”
Franklin froze in stony silence and looked down at the hood of the car. He did not seem to be thinking, Wow! This is the opportunity of a lifetime!
“In the warrant your name isn’t used,” Brennan continued in the most reassuring voice he could muster. “You’re referred to as ‘it.’ ‘ “It” went into the house. “It” bought the drugs.’ You don’t go to court, you don’t testify.” The man’s face had become a mask without a flicker of interest.
Brennan tried to push another button. “You get these motherfuckers who are selling this crap off the street.” I wondered to myself whether Franklin was thinking, But these motherfuckers are my lifeline to pleasure and escape!
The Rights of the People Page 18