Law enforcement agencies adjust to a judicial subculture. They tend to learn by trial and error what they need in a warrant application, which may vary from one state to another, from one county to another, from one magistrate to another. We don’t know how often they get it wrong. Unless a victim dies or chooses to sue the police—rare events—fruitless search warrants remain as invisible as the frisks and car searches that turn up nothing. How often do police break down a door, rush into every room, dump the contents of drawers and closets onto beds and floors, and find no evidence of a crime?
“It happens every day in this business,” said Captain Art Binder of the Cumberland County Sheriff’s Department in North Carolina.9 But the public doesn’t learn about the everyday errors, only those tragic enough to break through the wall of police silence.
Here are a few examples:
Armed with a “no-knock” warrant, thirteen members of a narcotics SWAT team burst unannounced into the Boston apartment of a retired seventy-five-year-old minister, Accelynne Williams. He ran to the bedroom, officers broke in the bedroom door, he struggled, they handcuffed him, and minutes later he died of a heart attack. No drugs were found, because the cops had made a slight mistake. Their informant had not given them an apartment number, only a diagram; the apartment he had meant for them to search was one floor above.10
On the other side of the country, in the affluent Southern California town of Poway, federal agents were staking out the house of a forty-one-year-old computer executive named Donald Carlson when he drove into his garage about 10:30 p.m. A tipster had told them that the house was unoccupied, the garage full of cocaine, and the premises protected by four armed Mexicans. So they also obtained a “no-knock” warrant, an instrument issued with growing frequency by judges who are persuaded that police need the element of surprise to forestall violence against them or the destruction of evidence.
The light went on whenever the garage door opened, Carlson later told congressional investigators, so “anybody observing the garage can easily see inside. The garage was mostly empty.”11 Nevertheless, around midnight, after Carlson had gone to bed, the agents broke into the house. The commotion woke him with the terrifying thought that he was being assaulted by burglars, so he did what any red-blooded Westerner would have done: He pulled out his gun. He fired twice at the front door, he said later, and was shot three times by police; it took him four months to recover enough from his wounds to get back to work full-time. No narcotics were found in his house.
Donald Scott, a wealthy recluse, grabbed a gun as well. Again, the events began with hearsay. His wife was supposedly flashing hundred-dollar bills and tipping generously. Thousands of marijuana plants were supposedly growing on Scott’s two-hundred-acre ranch in Malibu. The DEA couldn’t spot them from the ground, or during two flyovers, but on a third pass at 1,000 feet, an agent without binoculars imagined that he could recognize marijuana’s shade of green. He took no photographs.
Despite the weakness of these indicators, a judge found probable cause and issued a search warrant, setting in motion a disastrous chain reaction. A force of thirty was mobilized from the DEA, the Los Angeles Sheriff’s Department, the California Bureau of Narcotic Enforcement, the U.S. Forest Service, the National Park Service, the Los Angeles Police Department K-9 Unit, and the National Guard.
Their interest in the valuable ranch went beyond the alleged marijuana cultivation. An investigation later by the Ventura County district attorney concluded that the sheriff’s department in particular “was motivated, at least in part, by a desire to seize and forfeit the ranch for the government.” The officers were evidently betting on a bountiful result, for they were briefed before the raid on the possibility of forfeiture and were given documents containing an appraisal of the place. Law enforcement agencies usually receive the proceeds of confiscated property used in a crime.
Scott had been drinking and taking Valium until about 2 a.m., according to press reports, and was still intoxicated and asleep with his wife when the agents moved onto the ranch in the early morning, some surrounding the garage and barn, others taking positions behind their vehicles, and five more stationed at the house. A sheriff’s deputy knocked and announced that they had a search warrant.
His wife got up first, but before she could get to the door, the police broke it in with a battering ram and rushed inside, guns drawn. Scott, sixty-one, groggy from sleep and drink, must have thought that thugs and thieves were overrunning his house and attacking his wife. He grabbed a revolver and ran into the living room. When the police identified themselves, he held the gun over his head; a deputy ordered him to drop it, and as he lowered it slowly, officers thought that the barrel pointed in their direction, so they fired, hitting him twice in the chest and killing him. No marijuana plants were found growing on the ranch, and no other drugs were discovered.12
In late 2006, Atlanta police arrested a low-level marijuana dealer on the street. As the story was pieced together by a team of reporters at the Atlanta Journal-Constitution, the dealer tried to wriggle into the cops’ favor by pointing out a small brick house nearby as a center of drug sales. The narcotics squad, under pressure to make busts, immediately applied for a search warrant by swearing falsely in an affidavit that they had sent in an informant who bought fifty dollars’ worth of crack cocaine from somebody named Sam. On that basis, a magistrate issued a “no-knock” warrant the same day, and that evening, the police pried open a set of burglar bars, smashed through the door, and were met by gunfire from Kathryn Johnston, who was ninety-two.
She lived alone and was armed with a rusty revolver that had been given to her by a relative just in case a gang tried to break in. She managed to fire one shot, grazing one of the officers, but the cops, wearing bulletproof vests, answered with thirty-nine rounds, hit her five or six times, and killed her. No cocaine was found in the house, so they planted some marijuana in the basement.
Since Johnston was black and the cops were white, the shooting inflamed racial tensions in Atlanta and prompted criminal investigations by the FBI and the district attorney. Three white officers pleaded guilty in federal court, and two of them in state court, drawing prison terms ranging from five to ten years. A sergeant in the narcotics squad was sentenced to eighteen months for entering another apartment without a warrant.
The incident threw a spotlight on patterns of falsehood in search-warrant applications. A long-time informant told investigators that the narcotics officers, to make their affidavit look true after the fact, had pressed him to state untruthfully that he had bought crack in the house. To meet monthly quotas, one of the officers testified, detectives routinely lied under oath to judges by swearing that they had performed a procedure critical to the validity of evidence: that before sending informants in on buys, they had searched them to make sure they weren’t carrying drugs—a way of proving that any narcotics the informants had when they emerged were actually obtained inside. In fact, they had not taken this precaution. The U.S. Attorney in Atlanta denounced these “routine violations of the Fourth Amendment.”13
Many other cases of mistaken search warrants surface in the press, usually as local stories in scattered towns and cities around the country, but we do not know the overall error rate. The libertarian Cato Institute catalogued hundreds in a 2006 report.14 Bill Torpy of the Journal-Constitution reported that four hundred warrants for drug searches were executed in 2006 by Atlanta police, but he couldn’t determine how many had actually yielded narcotics. “A lot of the affidavits and warrants have no return sheets of what evidence was seized,” he noted. “A lot of them list minuscule amounts of drugs. Also, we’ve seen returns where nothing much was mentioned, but a police report of that same incident shows drugs or other evidence that was not listed on the warrant return.”15
Similarly, we cannot be sure how readily judges are satisfied that probable cause has been demonstrated. We cannot tell how often, or why, judges find policemen’s warrant affidavits lacking. Rejections are
not announced, reapplications are not disclosed, and no overall records are kept. Even the most experienced defense attorneys concede that they have no good feel for the situation. And this is where law enforcement is most accountable, as contrasted with the secret, uncontestable warrants issued clandestinely against suspected terrorists and spies by the Foreign Intelligence Surveillance Court.
Now and then, courts have overturned ordinary criminal warrants based on Rehnquist’s admonition in Gates about the inadequacy of anonymous tips alone without something more to corroborate the unsourced allegations. How much more is a question that different judges answer differently, as a divided panel of the Ninth Circuit demonstrated in ruling on a 2006 appeal from Thai Tung Luong in Los Angeles.
Luong came to the DEA’s attention during surveillance of a Taiwanese citizen, Chun-Ying Jao, who had been identified to the DEA’s Hong Kong office as a “chemist” traveling to the United States to set up a laboratory to make methamphetamine. Federal agents and local police followed Jao from the Los Angeles airport to a hotel, where Luong picked him up the next day and drove him to lunch and then to his house.
According to a Monterey Park police officer’s affidavit in the warrant application, the two men walked back and forth between the front door and the backyard several times. They were seen taking a red high-pressure hose to Home Depot, where they asked a clerk to help them find an adapter, bought the fitting, and then returned to the house. Such hoses, the officer said, were used with vacuum pumps in meth labs, which are sometimes located in garages behind houses.
On that basis, a search warrant was issued, and laboratory equipment was discovered along with documents for a rented storage unit. A second warrant, obtained for the storage locker, turned up sixty-eight pounds of methamphetamine. A federal district judge ruled, and the appeals court agreed by two to one, that the warrant lacked sufficient indicators of probable cause. The evidence was suppressed.16
To decide for the defendant in such a case, judges have to rewind the tape, ignore the ultimate discovery of drugs, and imagine the observed behavior without any taint from the anonymous allegation. This takes a certain discipline of mind. When you strip away the DEA’s unsourced Hong Kong report, the events witnessed by the police look pretty innocuous: A man picks another man up at his hotel, takes him to lunch, takes him home, walks around his yard, drives with him to Home Depot, and buys a fitting for a hose. Or, without the anonymous letter in Gates, a woman drives to Florida, her husband flies to meet her and stays overnight with her in a motel, and they then drive home.
It’s hard to see much difference between the cases, yet they were decided differently. That the Supreme Court’s opinion upholding the Gates warrant did not prevent a lower court from overturning the search in United States v. Luong illustrates how amorphous the concept of probable cause has become, how dependent it is on which judges are randomly assigned to trials and appeals. If one additional judge on Luong’s appeals panel had gone against him, the majority would have shifted and Luong would have faced a trial, probable conviction, and a long term in prison.
Any investigation of drug-dealing, terrorism, and other crime has to start somewhere, and that place is often beyond the reach of the Bill of Rights. A tip, a hunch, or a guess can legally trigger a tail and a stakeout; it can send FBI agents onto Web sites and into open meetings of mosques and peace groups. It can induce local police to sit outside gatherings and write down the license plate numbers of those who attend. But it cannot—or should not—justify a search. There is no constitutional right to invisibility in a public place, but when the state seeks to reach into your privacy, especially behind the walls of your home, the Fourth Amendment is supposed to kick in.
So it was for Martedis McPhearson, the subject of an arrest warrant for simple assault.17 When two policemen knocked on his door in Jackson, Tennessee, on December 12, 2003, McPhearson answered, confirmed his identity, and was arrested on his front porch. Since everyone taken into custody can be legally frisked, an officer patted McPhearson down and discovered nearly seven grams of crack in his pocket.
It was too little for McPhearson to be considered a dealer. Nevertheless, on the basis of that small amount, the police swore out an affidavit surmising that evidence of drug trafficking would be discovered in his house. They got a judge to sign a search warrant, and, indeed, found “distribution quantities of crack cocaine and firearms” inside.
The federal trial judge, and two of the three judges on a Sixth Circuit appeals panel, overturned the warrant, ruling that the “totality of circumstances” test formulated by Rehnquist in Gates had not been met. “The affidavit did not allege that McPhearson was involved in drug dealing,” the majority wrote, “that hallmarks of drug dealing had been witnessed at his home, such as heavy traffic to and from the residence, or that the investigating officers’ experience in narcotics investigation suggested to them that 6.9 grams of crack cocaine was a quantity for resale. Nor did the affidavit allege anything else tying McPhearson or his home to any criminal activity other than personal possession of crack cocaine (and the simple assault for which he was arrested).”
A dissenting judge argued that McPhearson’s possession of crack as he emerged from his house provided probable cause, since “it is a reasonable inference that at least some people who carry crack cocaine around with them in their homes would leave some of the contraband, which they could divide into smaller amounts, elsewhere in their homes.” Besides, he added, even if probable cause had not been established, the police thought it had, and that was enough to admit the evidence under the loophole devised by the Supreme Court called the “good-faith exception.”
That came from a pernicious ruling in 1984, United States v. Leon,18 holding that a judge’s error in approving a search should not result in the exclusion of evidence when the police, in good faith, have relied on the warrant. The case was a complex narcotics investigation involving multiple defendants, residences, and automobiles.
All three levels of the federal judiciary—a district court judge, a Ninth Circuit appeals panel, and the Supreme Court—agreed that a warrant to search for drugs in Alberto Leon’s house in Burbank, California, was flawed because it was based on an unreliable informant with stale information, five months old, which the police had failed to corroborate. Following precedent, the two lower courts suppressed the pound of cocaine that was discovered.
But a six-to-three majority of the Burger Court used the opportunity to carve out an exception to the exclusionary rule, noting that “the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands.” The opinion, by Justice Byron White, concluded that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.”
So, if officers honestly believe they have probable cause, if the issuing judge agrees, and even if a court later finds probable cause lacking, the evidence is still admissible. The reasoning has a whiff of Lewis Carroll: A police officer executes a sworn affidavit that forms the sole basis for a judge’s issuance of a warrant, but then it’s all the judge’s fault, not the officer’s, when the affidavit is found to fall short of probable cause. And since the judge is in error, it is pointless to deter the police with the exclusionary rule, and so the defendant is punished. One can almost hear the Queen declaring to the accused: “The judge was wrong, so off with your head!”
White inserted caveats into his opinion. Evidence can still be excluded if the police mistake is “substantial and deliberate,” such as the “knowing or reckless falsity of the affidavit,” or if the affidavit fails to provide “substantial basis for determining the existence of probable cause.” To get evidence suppressed, then, the police error must be egregious. Anything short of that extreme, some attorneys have noticed, now induces courts to skip past their essential role of judging probable cause, concentrating instead on whether the police acted in good faith.
“If subjective
good faith alone were the test,” the retired justice Potter Stewart remarked a year before Leon, “the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.”19
UNDOING THE EXCLUSIONARY RULE
What prevents the police from violating the Fourth Amendment, and what is the remedy if they do?
America’s unique answer has been the exclusionary rule, but it was assembled haphazardly and is now being similarly dismantled. “Looking back,” said Stewart in 1983, “the exclusionary rule seems a bit jerry-built—like a roller coaster track constructed while the roller coaster sped along. Each new piece of track was attached hastily and imperfectly to the one before it, just in time to prevent the roller coaster from crashing, but without the opportunity to measure the curves and dips preceding it or to contemplate the twists and turns that inevitably lay ahead.”20
It has never sat as comfortably in the criminal justice system when applied to the Fourth Amendment, as when it enforces the Fifth. There is a practical reason. A confession coerced in violation of the Fifth Amendment can easily be false, given only to stop the abuse; so even a defendant who confesses can be innocent. Excluding the confession forces the police to prove the case.
But physical evidence is tangible and real, confirmation of guilt in most prosecutions. Its suppression often sets criminals free. Consequently, no country but the United States has such a mandatory exclusionary rule, and many have none at all, including China, England, Germany, Israel, and Italy. Russia has one on paper only, and in keeping with Russia’s long history of legal-looking charades, it is rarely observed in practice.21
The exclusionary rule did not exist in English common law, the uncodified tradition that forms the basis of law in almost all American states.22 It is not mentioned in the Constitution (but neither is any remedy for any violation of fundamental rights), and it was not required as a corrective mechanism in federal courts for the first 123 years after the Bill of Rights was ratified, and not in state courts for another 47 years after that. An illegal search “is no good reason for excluding the papers seized in evidence,” ruled a Massachusetts court in 1841. “When papers are offered in evidence, the court can take no notice how they were obtained, whether lawfully or unlawfully.”23
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