The Rights of the People (25 page)

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 benefit 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.

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.’ ”
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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.
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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
,
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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,
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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.

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.
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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.
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• 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.”
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  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.
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• 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.”
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