“You know something about a shooting,” Brennan went on, “we get the guy, you might make twenty-five thousand dollars. There are twenty-five-thousand-dollar rewards.” He wasn’t getting anywhere with Franklin. “Look, I gotta ask,” he said.
A luxury Acela train from New York eased along the tracks toward Union Station, carrying people down from a day of business or in for high-powered work in the nation’s capital, passengers oblivious to what they were seeing as they looked out their windows at the tiny figures in the shadows.
Now Franklin was slumping like a frightened dog. He hadn’t spoken a word since the offer was made. “You’re not gonna turn yourself around unless you do something about it,” Brennan said. Hearing no answer, Brennan told him that the branch was just down the street, on Third, and that he could stop by anytime. We got into the car and picked our way slowly out of the alley.
Sometimes, Brennan told me, such a man turns up a couple of weeks afterward at the unmarked, light gray one-story building that houses the Narcotics Branch. “After they do a couple of cases with us, they like it,” he said, adding that he protects them when they make buys, with as many backup cops as an undercover officer receives. A C.I. got beaten up recently in the Fifth District, Brennan said, but one of his had never been killed.
In practice, then, “the right of the people to be secure in their persons, houses, papers, and effects” can be overcome by the anonymous assertions of a questionable character who is motivated by cash from the police or leniency from the prosecutor. On the basis of a furtive phone call about a gun someone has supposedly seen or a bag of crack he’s bought, a home can be invaded. The officer signs a sworn affidavit reporting the tip, which is often hearsay, thereby establishing probable cause, and a judge issues the search warrant. As far as is known, judges seldom refuse, although statistics on rejections are not collected.
Ironically, this thin justification for turning someone’s house inside out is actually the gold standard of constitutional protection under the Fourth Amendment. The search warrant is the strictest procedure that we possess to preserve that right, and so it is hailed by outspoken defenders of civil liberties as a bastion against the groping hands of the state. As flawed as it has become, it remains the model, the benchmark for measuring deviations. Searches that are done without it—of pedestrians and vehicles openly, of computer files and library records secretly, of e-mail and phone and bedroom conversations among suspected terrorists—are dangerous departures from the paradigm, the imperfect paradigm.
The warrant requirement has a noble history as a rebuff to the British writs of assistance, which allowed whole villages to be searched for contraband in Colonial times. “A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle,” argued James Otis on behalf of Boston merchants in 1761. “This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.”4
The answer, in the Fourth Amendment, provides for the checks and balances that limit governmental power: The warrant is requested by the executive and issued by the judicial branch. It requires a threshold of evidence that is designed to prevent fishing expeditions and harassment. And unlike the British writs of assistance, it is limited by specificity as to time, place, and items of evidence sought.
These characteristics create obstacles to outright police fabrication, although it sometimes happens. A single officer cannot easily invent probable cause, as he can during a traffic stop. At least a measure of proof is required, not beyond the reasonable doubt that must be exceeded for a jury to convict, but enough to ensure that the search occurs after, not before, some investigation has begun. A logical progression is thereby prescribed: Only as the facts grow more certain may the inquiry grow more intrusive—and more regulated.
Furthermore, the accused ultimately has the right to challenge the basis of the warrant in court, which cannot happen when information is obtained secretly through methods expanded since September 11, 2001. These methods include the administrative subpoena known as a National Security Letter and the clandestine warrant issued by the Foreign Intelligence Surveillance Court. Both devices were broadened by the Patriot Act.
Finally, the warrant alerts police to the potential of a challenge, which makes them careful, as Brennan’s squad demonstrated.
Before going out on another search, the unit’s dozen officers, all dressed down in casual civilian clothes, gathered in the conference room at the Narcotics Branch. The policeman with the long ponytail described the location: 1914 I Street NE, Apartment 3—marked by a white door bearing the number 3—where a black male had reputedly sold a C.I. ten zips, as the small ziplock bags used to package drugs are called. “He is heavily watching out the window. Once the back-door containment is in place, we’ll go in the front. The back door is the fourth from the alley, but unmarked. A huge tree covers the steps with overgrowth.” The squad was shown pictures of the area.
The front door was “a lockout,” he said, meaning that a key or a code was needed to get into the building. This was a complication, because the cops didn’t want to bust down the outside door and give the occupant enough warning to flush the drugs or grab a gun. “Could we go in the back?” one asked, and a few others picked up on the idea, because the back door led directly to the apartment. But Ponytail was hesitant because the door had no number, and bursting into the wrong place would ruin everyone’s day.
Brennan drew a diagram and gave the assignments, and we set off in three cars, one unmarked, with everyone except me wearing dark blue bulletproof vests emblazoned with white letters spelling POLICE. Brennan wore a blue shirt with a Narcotics Division logo; his badge hung on a string around his neck.
We drove into a parking lot a few blocks away and waited out a fierce thunderstorm. Quigley was not with us. She was undercover in the neighborhood, hoping to get into the building’s vestibule so that the cops could avoid using the battering ram. She waited on the stoop until somebody came out, then slipped through the open door and radioed to Brennan that she was inside.
The squad drove up, the cops jumped out and rushed the building, jamming into the narrow hallway and up the stairs to the apartment on the left, on the second floor.
There they stopped cold. The numeral nailed to the apartment door was 2, not 3. Even though a uniformed officer had confirmed the number as 3 a few days earlier, drug dealers sometimes switch digits to foil cops. And here it worked, because the warrant said number 3, and Brennan and the others knew this was just the kind of detail that a good defense attorney could use to have the search declared illegal and its fruits excluded.
A television police show would surely picture this as an absurd technicality, but it was a protection, and the cops seemed to accept it as part of the game; they weren’t grumbling. Either they would ask the judge to change the warrant to read “upper left apartment,” Brennan explained, or they would have the C.I. do another buy and get a whole new warrant. Hopefully the dealer hadn’t been frightened off by the commotion.
Through the crowd of cops came a boy down the stairs. “Where do you live?” one asked him. He was so scared he was practically speechless. He pointed and said something about living down the street. The cops demanded the address of his house. Paralyzed, he didn’t answer. They got gruff. “What’s the number? You don’t know the number? How old are you?” Fifteen, he said, and finally gave them a location a couple of houses away.
“You have any guns?” asked Brennan. He patted the teenager down perfunctorily, violating his rights under a Constitution whose defining authority a moment earlier now suddenly receded. Terry required reasonable suspicion to believe that someone was armed.
Then the narcotics squad performed a bit of street theater for the b
enefit of the boy in case he spread word around about the police invasion.
“We had a call that there was someone with guns in the hallway here,” Brennan lied.
“I ain’t seen no guns,” answered the youngster.
Detective Quigley, in her red shirt and white shorts (and no police vest), joined the production. “Can I go?” she asked Brennan as if they had never met before.
“Yeah,” said Brennan. “What are you doin’ in the hallway anyway?”
“It was rainin’,” said the consummate detective-actress, and she was out the door in a flash.
DETERRING THE POLICE
If we drew a rough trajectory of the Fourth Amendment’s power to protect individual privacy, the line would begin low in the left-hand corner of the chart during the country’s early decades and then rise during the first two-thirds of the twentieth century (jumping upward in 1914, with the exclusion of illegally obtained evidence from federal trials, and soaring again in 1961 as the Supreme Court applied the Fourth Amendment to the states). The line would describe something of a plateau, and then begin a downward course through the end of the twentieth century and into the beginning of the twenty-first.
We find ourselves now on the declining slope, heading toward the lower ground last occupied more than half a century ago. Even the search warrant, designed by the framers as the bedrock guarantee of the Fourth Amendment, has been eroded by the trickle of pro-police rulings from the courts. These have worn away the definition of probable cause, making it easier for cops to get a warrant on the basis of flimsy hearsay.
A 2003 case in Washington illustrated the point. A federal agent’s affidavit requesting a warrant contained only one substantive sentence justifying probable cause, a reference to a confidential informant designated as CI-1, who had worked with the police for only two months, on just four other warrants. “Within the last 72 hours,” the affidavit stated, “your affiant was contacted by CI-1 regarding a handgun that it observed within 5320 2nd Street NW, Washington, D.C., the residence of an individual CI-1 knows as ‘Jimmy.’ ”5
That was all. There was nothing more. “The affidavit was insufficient to support a probable cause finding,” argued the appeals lawyer, Neil Jaffee. There was no date on which the gun had supposedly been seen (only when the informant had reported), raising the possibility that the information was stale enough to violate guidelines established in a 1932 Supreme Court case.6 There was nothing about the gun’s make or description or location in the house, no allegation of drugs or violent activity at the address, no explanation of the informant’s presence or relationship with Jimmy, nothing on who else resided there, and no statement that law enforcement officials had observed criminal behavior at the building. The affidavit also exaggerated Jimmy’s criminal record by stating that he had three convictions for carrying a pistol without a license; in fact, Jaffee learned, he had only one, nearly twenty years earlier.
It shouldn’t have mattered, but it surely did, that the search turned up heroin, two guns, and nearly $10,000 in cash. The trouble with challenging search warrants, as with warrantless searches, is that only those producing incriminating evidence make their way to court. However defective the means, the end is almost always graphic proof of the party’s guilt, and judges don’t like to let such people walk. So a judge does not throw out a search warrant—issued by a colleague on the bench, after all—without finding an egregious constitutional affront.
If there was a violation here, it was not dramatic. The case was in a gray area, where reasonable lawyers and judges could disagree on whether this affidavit supported this warrant. Without a hearing, federal District Judge Ellen S. Huvelle denied the motion to reject the search warrant and suppress the evidence. The defendant, James Gaston, got five years, and the circuit court refused to consider his appeal.
The case was ordinary, and that marked its significance. Sometimes legal lessons are learned by examining the outrageous, the sensational, the landmarks, yet often they are taught more accurately by the run-of-the-mill. Here was a decision that would never be analyzed in law journals, but which spoke to how insubstantial an unnamed informant’s tip could be to justify a legal invasion of a person’s home.
The judges were bound by a twenty-year-old precedent in Illinois v. Gates,7 a six-to-three ruling by the Burger Court that relaxed the standard for establishing probable cause. Previously, under a pair of earlier decisions by the Warren Court,8 a two-pronged test had been required: first, that a warrant application demonstrate the informant’s “basis of knowledge” (showing that he could know what he was talking about) and second, that either the informant’s “veracity” or the information’s “reliability” be shown by sufficient facts.
Gates swept aside that test and substituted a less demanding and more flexible criterion known as “the totality of the circumstances.” The two prongs were no longer to be satisfied independently but were reduced to “relevant considerations” in “a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip,” as William Rehnquist wrote for the majority before he became Chief Justice.
The strength of one characteristic could overcome weakness in another, Rehnquist held. For example, he said, if an informant has proved reliable in the past, his failure this time “to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip.… Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.”
Oddly, the basis of the warrant in Gates was weaker than either of Rehnquist’s criteria. The case began not with a reliable informant, or even with an identifiable source whose motives inspired “some doubt,” but with nothing more than an anonymous letter. The police department of Bloomingdale, Illinois, had no clue about its author, who claimed that a married couple, Lance and Susan Gates, were storing more than $100,000 worth of drugs in their basement, and were planning to transport more from Florida. Susan was to drive down on May 3, 1978, leave the car, and fly back, the letter predicted. Then Lance would fly down, pick up the car loaded with drugs, and return.
The police confirmed that Lance had a reservation to fly to Florida on May 5. The Drug Enforcement Administration (DEA) saw him take the flight and followed him to a motel in West Palm Beach, where he stayed with his wife overnight, contrary to the letter’s forecast. They left together the next morning for the twenty-two-hour drive home to Illinois. So there was partial police corroboration of the tipster’s projections of their movements, but not of their alleged drug possession. An Illinois judge issued a search warrant for the house and car, and marijuana was found.
Rehnquist wrote in a spirit of pragmatism. He did not want to discourage anonymous tips. He also sought to avoid such close scrutiny of police affidavits that “police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause.” He declared: “Probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”
Yet the anonymous letter alone would not have justified the warrant, Rehnquist noted; some substantiation was required to support probable cause. He thought the police surveillance had provided as much.
Justice John Paul Stevens disagreed, noting in dissent the tipster’s important mistake: that Susan would fly home before Lance left for Florida. With both of them absent, he said, their supposed $100,000 stash of drugs was left unguarded, undermining the letter’s thesis and leaving only lawful behavior as the basis for the warrant. “The mere facts that Sue was in West Palm Beach with the car, that she was joined by her husband at the Holiday Inn on Friday, and that the couple drove north together the next morning,”
Stevens wrote, “are neither unusual nor probative of criminal activity.”
As in many warrant applications, all the seemingly innocent actions were colored by the anonymous tip; without the letter, the police had nothing but a sequence of insignificant events. Reasoning backwards, then, the Court’s opinion seemed like common sense: Marijuana was found after the couple had made an oddly arranged journey to Florida, which the tipster had known about in almost precise detail, portraying it as a drug run.
But another scenario could have been constructed from the same set of facts, before the ultimate discovery of marijuana: A disgruntled neighbor, relative, or employee knew enough details of a quick, innocent trip to twist them into a criminal conspiracy, subjecting the couple to a police assault on their privacy. When seen through a malevolent lens, the most ordinary features of life can take on sinister shapes, as they have in some erroneous terrorism prosecutions.
This is the danger of relaxing the standards for searches, wiretapping, and various forms of surveillance: Unchallenged assertions, innuendo, rumor, and fragments of fact can be used to pry open people’s private worlds. It is wise to remember that in the days after 9/11, unnamed callers with unsavory motives sent FBI agents scurrying in frenetic searches for hundreds of “suspicious” Arab-looking men who were rounded up, searched, jailed in brutal conditions mostly for immigration violations, and never found to have any links to terrorism. The results were both inhumane for the victims and dangerously distracting for a law enforcement agency with a serious, urgent job to do.
That was panicked policing, lasting for a moment of history. A more durable defect in the constitutional structure has been created by courts that imagine the anonymous tip to be a pillar of probable cause. The notion undermines the integrity of the search warrant.
The Rights of the People Page 19