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Cory Maye Documentary:
Reason.TV has just posted a documentary about the Cory Maye case: The Mississippi Drug War Blues: The Case of Cory Maye. Thanks to Radley Balko for the link (as well as all the other great work he has done with this case).
GV:
Radley Balko also recently penned this piece about outrageous police abuse in Arkansas concerning breaking into an individual's home.

I wonder how this squares with Justice Scalia's opinion in Hudson v. Michigan, where he relaxed the exclusionary rule when police improperly knock and announce in part because of the "increasing professionalism of [the] police force" and the police's increasing concern about the "constitutional rights of [their fellow] citizens." Of course, Justice Scalia was not able to point to actual evidence of this fact other than to note that police receive better training. (But no worry, it's not "judicial activism" when Scalia makes empirical assumptions about something to craft the contours of a remedy for a constitutional violation. How that squares with his most recent attack on Justice Steven's opinion that the death penalty ought to be considered unconstitutional is not clear to me.)
5.8.2008 5:26pm
R Gould-Saltman (mail):
Sarcasm/snark follows

I recall, vaguely, the following scenario, years ago in a novel (Wambaugh? James Ellroy, maybe?) : police officer #1 goes around back of house; officers #2, 3, and 4 approach front door, bang on door, yell "Police!" As officers 2, 3, and 4 subsequently testify, "voice apparently from within the rear of the house" responds "Yeah?" Officers 2, 3, and 4 then kick in the door.

As I recall, this was described as a "serving a Mississippi warrant".



. . .but I guess that "increased police professionalism" means that the police don't go busting into innocent people's houses, abuse them, and then try and cover it up any more, so we don't really need the exculsionary rule as a deterrent. Just like the way that increased ethics training now means that an AUSA would now never deliberately fail to provide required disclosure in a criminal prosecution, and then deliberately mislead the judge when the issue came up...



r gould-saltman
5.8.2008 6:30pm
Bill Poser (mail) (www):
In addition to the usual problems of no-knock police assaults, as I recall this case involves the added difficulty that the officer who was killed is the son of the police chief or something like that.
5.8.2008 6:51pm
Oren:
Hudson would not have been necessary if Magistrates and Judges that sign warrant hold the agencies responsible for upholding the terms. If I signed a search warrant that did not allow for 'no knock' and the police did not obey it, screw excluding the evidence, I'm going to hold the police in contempt.

It seems to me, at any rate, that officer safety would best be served by establishing a perimeter and ordered the perp to come out with his hands up. A man's home is his castle right? It was long understood to be the prerogative of a Lord in his castle to surrender peacefully to avoid assault on his walls. There would be no confusion, no nonsense and no 'dynamic entry' -- just a demand to surrender peacefully (plus, a shootout is going to go much more poorly for the perps if they are attempting to assault the police presence outside as opposed to getting into a firefight in confined quarters and risking crossfire).

Of course, since we are fighting a war on drugs, we can't possibly let people dispose of their own property as they see fit -- that's evidence!
5.8.2008 7:11pm
OrinKerr:
GV,

As far as I can tell, there is no inconsistency or tension between Hudson and the case Radley wrote about in the link you provide. In Hudson, Justice Scalia concluded that a suppression remedy for knock and announce violations was not necessary to ensure that the police complied with the knock and announce requirements (in part because of the better training of police these days). My understanding is that in the case Radley mentions, the police complied with the knock and announce requirement by specifically asking the judge for permission based on reasonable suspicion not to knock and announce; the judge agreed and signed the warrant with a specific provision stating that the police need not knock and announce. The fact that the police complied with the requirement even though there was no threat of suppression would seem to support Justice Scalia's reasoning, not cut against it.
5.8.2008 7:15pm
Bill Poser (mail) (www):
Since, barring exigent circumstances, the police have no authority to enter a home other than the authority provided by the warrant, if they breach the terms of the warrant, as in making a "no knock" entry when that is not permitted by the warrant, why should they not be charged with the same crimes that anyone else would be charged with, such as breaking and entering and assault?
5.8.2008 7:18pm
OrinKerr:
If I signed a search warrant that did not allow for 'no knock' and the police did not obey it, screw excluding the evidence, I'm going to hold the police in contempt.

Oren, you could do that, but you might be guilty of lawlessness yourself. The Supreme Court's cases recognizing K&A as a Fourth Amendment issue also state that it is no violation for the police not to knock and announce if they have reasonable suspicion it would be dangerous or futile at the time of the search, even if they specifically asked the judge to waive K&A and the judge earlier refused.
5.8.2008 7:20pm
Bill Poser (mail) (www):

The Supreme Court's cases recognizing K&A as a Fourth Amendment issue also state that it is no violation for the police not to knock and announce if they have reasonable suspicion it would be dangerous or futile at the time of the search, even if they specifically asked the judge to waive K&A and the judge earlier refused.


Fair enough, but what about the case in which the police do NOT have reasonable suspicion that it would be dangerous or futile to knock?
5.8.2008 7:33pm
Fub:
OrinKerr wrote at 5.8.2008 6:15pm:
My understanding is that in the case Radley mentions, the police complied with the knock and announce requirement by specifically asking the judge for permission based on reasonable suspicion not to knock and announce; the judge agreed and signed the warrant with a specific provision stating that the police need not knock and announce. The fact that the police complied with the requirement even though there was no threat of suppression would seem to support Justice Scalia's reasoning, not cut against it.
True that the warrant states such permission based upon finding reasonable suspicion that K&A would be dangerous, futile or ineffective. However, that is a conclusory statement. The warrant affidavits which would support that finding of reasonable suspicion are simply not available, and may never be.

From the Reason article:
Forrester says she has called the North Little Rock Police Department more than 20 times in an effort to obtain a copy of the affidavits. She says they at first refused to return her phone calls. When she was finally able to speak with a lieutenant, he became angry when she told him she had contacted the media. She then says he told her to "dream on" when she asked for copies of the affidavits.
5.8.2008 7:54pm
great unknown (mail):
Bill: fair question - but how would you prove it? A policeman's word tends to be accepted in court even in the face of significant evidence to the contrary. When it comes to "suspicion", I cannot conceive of any way of demonstrating it did not exist. There is always the "anonymous informer who warned them that the suspect discussed having a gun in the house" routine.
5.8.2008 7:59pm
Bill Poser (mail) (www):
great unknown:

I grant that there may be evidential problems, but it seems to me that the circumstances in which the police would have a reasonable suspicion of danger form knocking are fairly limited. To take your example, so what if the suspect has a gun in the house? I have a gun in my house, but except in very unusual circumstances would be unlikely to get it out, much less use it, if the police knocked on my door with a search warrant. If the police are raiding a gang of terrorists sworn to die before surrendering, sure, a surprise assault is the best approach, but in most circumstances even if the occupants are armed they are not going to use their arms against the police. A no-knock entry actually increases the danger to the police when the occupants are not crazy or desperate as even innocent, stable people are likely to defend themselves when their house is broken into by unknown people.
5.8.2008 8:25pm
GV:
Orin, the inconsistency I mentioned doesn't concern whether police will properly use the knock and announce rule independent of the exclusionary rule. But between Scalia's conclusion (that no exclusionary rule was necessary because, in part, of our professional police force who are so concerned about the constitutional rights of their fellow citizens) and the facts of many cases, including the linked one, concerning how police departments actually employ, execute, and choose to raid people's homes. In other words, I see little evidence that police departments are full of professionals who are concerned about the constitutional rights of their fellow citizens, especially in the way in which knock and announce raids are conducted. The actions of the police in both the case you link and the case I link were not "professional."
5.8.2008 8:26pm
alias:
The only possible motive for this post is to paper over Judge Cassell's blog silence on the Fifth Circuit's Dean CVRA case.
5.8.2008 8:47pm
whit:
"Since, barring exigent circumstances, the police have no authority to enter a home other than the authority provided by the warrant, if they breach the terms of the warrant, as in making a "no knock" entry when that is not permitted by the warrant, why should they not be charged with the same crimes that anyone else would be charged with, such as breaking and entering and assault?"

there's that pesky little thing called intent. that's why.
5.8.2008 8:47pm
whit:
"In other words, I see little evidence that police departments are full of professionals who are concerned about the constitutional rights of their fellow citizens, especially in the way in which knock and announce raids are conducted."

here we go with selection bias. of course, if you only read blogs such as this, and balko articles (who i respect btw), you are only looking at the BAD examples. warrants that go smoothly, in accordance with law, without controversy, etc. you dont hear about.

do you see how that works?

i have been on scores of warrants, and i have never seen any violation of the knock rule, or going to wrong address, or any of the other messed up stuff that is referenced here.

have you done a ride along? have you actually researched what %age of warrants are problematic? since thousands of warrants are executed every day (that's only 20 per state for a thousand per day), i'm not surprised that there are bad warrants. there's bad anything when you have enough examples of it.

much like arrests. you don't hear about the 99%+ of arrests that go down without a hitch, except as a side note "johnson was arrested w/o incident".

fwiw, i am strongly against the drug war, i think that no-knock warrants ARE overused, and i am also against the overuse of swat in warrants.

i also have firsthand knowledge of scores of warrants, and personally saw 3 of my friends shot during just one warrant, so i am aware of both sides.

i do agree with the above point about no-knocks. they are (in some locales) overused, ditto swat, etc.

on the other hand, another logical fallacy is the whole issue that you can't know what violent criminal actions the no-knock (and other warrants) PREVENT. you can prevent X potential violent acts by criminals a day, but those are to a large extent largely unknowable. it's only when the acts happen (violence by police or bad guys) that you know about it.

example: i've probably done hundreds of felony stops -gun drawn, order the guy out of the car, etc. i have never had to shoot anybody during a felony, and almost all of the stops went wihtout a hitch, and without any injury to anybody.

i have little doubt that out of those hundreds of stops, if we had just walked up with our hands in our pockets and politely asked the armed robber, auto thief, etc. to get out of the car and submit to arrest, etc. that there would have been tons of violence. but again, you can't definitely know about the violence prevented, only that not prevented.
5.8.2008 8:57pm
Oren:
Oren, you could do that, but you might be guilty of lawlessness yourself. The Supreme Court's cases recognizing K&A as a Fourth Amendment issue also state that it is no violation for the police not to knock and announce if they have reasonable suspicion it would be dangerous or futile at the time of the search, even if they specifically asked the judge to waive K&A and the judge earlier refused.
You are correct, of course (shocking for a 4A scholar, I know). What I meant was that I would demand (on pain of contempt) that the police show cause why they didn't K&A. I don't want them to make a big deal of it, just to provide a modicum of rationale. Would that pass Federal muster?

I have absolutely no desire to hold law enforcement at fault for taking any action that they reasonably suspect will mitigate the danger to them. My only desire is to ensure that they don't simply take this as a license to dispense with K&A for arbitrary or no reason.

Whit, reasonable as always. Glad to have you around.
5.8.2008 9:25pm
Mike& (mail):
I see little evidence that police departments are full of professionals who are concerned about the constitutional rights of their fellow citizens, especially in the way in which knock and announce raids are conducted.


Likewise. Many still get a good chuckle out of Scalia's "new professionalism" argument.

If you're a Supreme Court Justice, you get treated with professionalism. If you're a poor person... not so much. Some people, like Scalia, lack empathy. So when they make up stuff, they make up stuff that helps people in their class but harms others.

Given that Scalia likes to make up stuff ("new professionalism," for example) that gives the government more power; why do people scream bloody murder when Obama suggests that he wants people who will make stuff up to give the people greater rights? Both Obama's nominees and Justice Scalia will make stuff up.

So I really don't think someone can have a problem with Obama if he also doesn't have a problem with Scalia. Activism is activism, no matter what "side" ends up winning the case.
5.8.2008 9:32pm
whit:
oren, thanks.

mike, you are right about the activism and making up stuff from scalia. scalia lost me with his decision on the medical mj case. i am sorry but there is no wayt that somebody growing medical mj in their own house is somehow a "commerce clause" issue.

are there conservative "judicial activists?" of course. i realize that may seem oxymoronic, but scalia is clearly conservative, and at least in cases like medical mj, he went pretty activist with his 10th interpretation.
5.8.2008 9:39pm
OrinKerr:
In other words, I see little evidence that police departments are full of professionals who are concerned about the constitutional rights of their fellow citizens, especially in the way in which knock and announce raids are conducted. The actions of the police in both the case you link and the case I link were not "professional."

But Scalia didn't claim to the contrary, did he? He claimed that "the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial—incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified." The reasoning was pretty specific to K&A violations.

I should add that I don't think Scalia picked the best reasoning in Hudson; I thought he was sort of having fun with the 1980s style balancing test that he normally abhors.
5.8.2008 10:35pm
ithaqua (mail):
Whit: well said. The safest rule of thumb for a policeman is 'shock and awe' - go in with overwhelming force and neutralize the perp as fast as possible, without concern for liberal fancies like the 'rights' of criminals. If the target is 'innocent' - almost never the case - he won't resist anyway, and no harm will be done.

As to the rest of you: I'm saddened, but not surprised, that so much liberaltarian time and effort is being employed to put a cop-killer back on the streets. I acknowledge the passion you feel about this issue, though, and I wish you all the success you had with Tookie Williams. :)
5.8.2008 10:52pm
Oren:
Orin: I think that the 'incentive to violations' is linked to the extent to which the force is professional and able to objectively determine the reasonableness test you articulated earlier. It's true that some other remedy could be fashioned (although you shot down my first idea, rightly so) but as it is, Hudson is a large grant of deference with virtually no accountability.

Could you hypothesize a different (non-exclusionary) remedy to improper failure to K&A?

ith: He's a cop killer, no doubt, just not a cop murderer: I'm sure you appreciate the difference (actually, not so sure). Don't worry though, in your theoretical world, shock and awe saved his life by not giving the perp a chance.
5.8.2008 11:10pm
Oren:
"objectively determine the reasonableness test" should be "objectively apply the reasonableness test". Still have finals to grade.
5.8.2008 11:20pm
OrinKerr:
It's true that some other remedy could be fashioned (although you shot down my first idea, rightly so) but as it is, Hudson is a large grant of deference with virtually no accountability.

It depends how you look at it, I think. The K&A rule had not been held to be part of the Constitution for the first 200 years of the Fourth Amendment. Then, in the 1990s, the Court concludes that it's part of the Fourth Amendment, but it doesn't say what the remedy is for violations. Given that, the fact that the Court doesn't impose an exclusionary rule for violations could be seen as (a) cutting back on the Fourth Amendment or (b) just not extending the exclusionary rule beyond what the Fourth Amendment had required.

In any event, I think the better argument should have been to rely on causation: if violation of the K&A rule does not change the evidence recovered, then the evidence recovered is not the fruit of a poisonous tree. Under that approach, there would have been a suppression remedy in theory but it would have rarely applied because of the causation problem.
5.8.2008 11:28pm
Radley Balko (mail) (www):
To take your example, so what if the suspect has a gun in the house? I have a gun in my house, but except in very unusual circumstances would be unlikely to get it out, much less use it, if the police knocked on my door with a search warrant.

I can point you to quite a few cases where the police affidavits cite suspect's registered permit for a gun as reason he may be dangerous, and require a no-knock entry. Which of course is absurd. I don't know many hardened criminals or drug dealers who'd take the time and risk the exposure of obtaining a legal gun permit. If anything, it shows that the police understand that these types of raids can provoke even otherwise lawful people to violence in defense of their homes.

Orin, as for Scalia's "new professionalism," I believe he was doing more than mocking balancing test jurisprudence, wasn't he? If memory serves, he went into great detail to note how careful and professional and disciplined modern police departments are because he thought internal affairs investigations, better training, and 1983 suits were preferable remedies to unlawful no-knock raids than the exclusionary rule. I think the case in Arkansas is at least one data point against Scalia's concurrence in Hudson. I've identified quite a few others since Hudson came out. Yes, they're all merely anecdotal evidence, but since most police departments don't track the number of times they violate knock-and-announce, or get the wrong house, or don't find what they were looking for, anecdotes are about all we have.

Also, I believe one of the academics Scalia quoted in Hudson, Dr. Sam Walker, went so far as to write an op-ed in the L.A. Times to explain how Scalia had misinterpreted his work.

Ithaqua's comment really isn't worth a response.
5.8.2008 11:32pm
jccamp:
Would it be possible for some links to actual decisions, court motions, etc? I can't seem to locate any via search engines. No offense intended, but all we have here is the statement of the man convicted by a jury of killing the officer. Hard to believe he might not tell the truth.

There's no mention of whether the people in the other duplex claimed to have heard the officers announce their presence. That might be material.

There's a brief reference to someone else nearby, described as inconclusive or something like that. Exactly how was that person's testimony inconclusive.

Suppose the testimony would allow a reasonable jury to decide that the officers did announce their presence and authority. So far, the only thing we have to contradict that is the statement of the man who shot the officer.

Maybe Maye wasn't a doper, but then again, maybe there was testimony put in front of the jury that the drugs were moved from one side of the duplex to the other so a police raid would not get all the drugs. This sort of thing is very common, and the neighbor who temporarily holds the dope usually has no other connection. They just get paid to hold a stash from time to time.

I'd also be interested in the pathologist's testimony - not just the selective and abbreviated version. Maybe the doctor was a moron, but he might just have made sense anyway.

The article also mentions that to believe the state's theory, Maye would have acted irrationally. OK, so what? People act irrationally all the time.

Anyway, without some pointer to court documents, this narrative seems pretty one-sided. Perhaps Maye was unjustly convicted, but a little more balance would be nice. Let us decide for ourselves after reading whatever court docs are available on-line.

One more point...if the cops in rural Mississippi seem a little untutored, how about the judge who signed a warrant based solely on an unidentified informant, with no qualifiers about reliability, past information leading to seizures and arrests, no observations which tended to corroborate the informant...things like that. Maybe the guy with the graduate degree should be setting some kind of example for the cops, like by demanding probable cause before signing. Demanding judges will teach cops a lot about warrants and probable cause.
5.8.2008 11:34pm
jccamp:
"I don't know many hardened criminals or drug dealers who'd take the time and risk the exposure of obtaining a legal gun permit."

Nothing personal, but that demonstrates your inexperience in such things. Very often, a convicted felon who cannot posses or own a firearm will have guns in the domicile, registered to another resident or legally purchased by another resident (where there is no firearm registration), so that the felon might evade legal penalty for violating felons-with-gun laws, but still have access to weapons inside the home.

"If anything, it shows that the police understand that these types of raids can provoke even otherwise lawful people to violence in defense of their homes. "

Cops make plenty of mistakes, good faith and bad. But this statement? Ridiculous. Are you suggesting that cops deliberately raid law abiding people's residences? That they deliberately seek no-knock warrants in such cases so they can blast some more innocent, law abiding citizens? You certainly don't need to resort to such hyperbole. Just the facts can be sufficiently horrific.
5.8.2008 11:48pm
OrinKerr:
I think the case in Arkansas is at least one data point against Scalia's concurrence in Hudson.

How, Radley? Did they violate the knock and announce rule?
5.8.2008 11:53pm
alias:
R. Balko writes:

Also, I believe one of the academics Scalia quoted in Hudson, Dr. Sam Walker, went so far as to write an op-ed in the L.A. Times to explain how Scalia had misinterpreted his work


Dr. Walker's op-ed was ridiculous, as I think Prof. Kerr accurately explained a while back (though Prof. Kerr was much more charitable, the word "ridiculous" is mine. Walker was upset that Justice Scalia credited his descriptive claim but used it to reach a different normative conclusion, without mentioning that Walker didn't share that normative conclusion. As I read the opinion, it was pretty clear that Justice Scalia wasn't pinning the normative conclusion on Walker.

I suppose I'd be "horrified" if I were in Walker's shoes, but that's not Justice Scalia's fault.
5.9.2008 12:04am
GV:
Whit:

have you done a ride along?

Yup.

have you actually researched what %age of warrants are problematic?

Nope. But then again, I wasn't the one making an empirical claim and fashioning a remedy for a constitutional violation based on that claim.

Orin, I'm not sure what your last response to me was supposed to mean. Perhaps we're talking passed each other. Do you deny that Scalia based his result in Hudson, in part, on the alleged increase professionalism of the police and their alleged newfound concern for the constitutional rights of their fellow citizens? Do you deny that Scalia has absolutely no meaningful evidence to support that assumption? Do you deny that these two linked incidents are counter-examples to Scalia's assumption about the police? I think this is what Balko was talking about when he said these two data points contradict Scalia; the contradiction lies in Scalia's assumption that the police are being professional in general, whereas these cases demonstrate that perhaps that assumption is not warranted. (Of course, it should go without saying, that these two data points alone don't establish that the police are unprofessional.)
5.9.2008 12:38am
Radley Balko (mail) (www):
How, Radley? Did they violate the knock and announce rule?

I was referring more to Scalia's argument that there are checks in place to keep modern police officers in line. The general behavior of the North Little Rock PD since the raid hasn't been particularly professional, transparent, or accountable. It's probably to early to know if they violated knock-and-announce, but the warrant itself offers no specific evidence of exigent circumstances to justify a no-knock, as required by Wilson and >Richards. Perhaps that evidence is in the affidavit, but the police won't release the affidavits, even though they're public record (I'm filing an open records request next week). Perhaps the police will argue that exigent circumstances presented themselves at the scene, but they're going to have a hard time arguing that, given that Ingle says he was asleep at the time of the raid, and that the raiding officers found him in his bed.

Nothing personal, but that demonstrates your inexperience in such things. Very often, a convicted felon who cannot posses or own a firearm will have guns in the domicile, registered to another resident or legally purchased by another resident (where there is no firearm registration), so that the felon might evade legal penalty for violating felons-with-gun laws, but still have access to weapons inside the home.

Nothing personal, but you know nothing of the cases I'm referring to. Look up Anthony Diotaiuto, for example. He was accused of selling a small amount of marijuana to a police informant. They got a no-knock warrant by noting that Diotaiuto possessed a conceal-carry permit in Florida, which requires a fingerprint, safety class, and paperwork. Diotaiuto lived alone. They raided his home at 6 am. They found him hiding in a closet in his bedroom, holding a gun. They opened fire and killed him. He had a few ounces of pot in the house. The guy was a recreational user, at worst a small-time pot dealer. They got the no-knock because of his legal gun permit. He wasn't a violent guy, and it's hard to believe he'd have been holding a gun had he known the cops were cops. Not sure many people would be ready to die for a few ounces. He had no prior record, save for one sealed pot possession arrest as a minor.

There are other examples (look up Derek Hale), but it's late.
5.9.2008 1:07am
Mike& (mail):
Whit: well said. The safest rule of thumb for a policeman is 'shock and awe' - go in with overwhelming force and neutralize the perp as fast as possible, without concern for liberal fancies like the 'rights' of criminals. If the target is 'innocent' - almost never the case - he won't resist anyway, and no harm will be done.


Because if I wake up to the sound of my door being kicked open, I wouldn't be started and maybe think it's better to error on the side of my own safety?
5.9.2008 1:13am
Oren:
In any event, I think the better argument should have been to rely on causation: if violation of the K&A rule does not change the evidence recovered, then the evidence recovered is not the fruit of a poisonous tree. Under that approach, there would have been a suppression remedy in theory but it would have rarely applied because of the causation problem.

Orin, are you implying that there ought to be no remedy for a violation of K&A that does not change the evidence gathered? If so, we will have to part company on this point. Perhaps exclusion is a poor remedy, but I insist (so long as we are talking ought and not is) that unjustified violations of K&A should have some negative implications for the officers/dept.

As far as armed assaults go, I'm all for letting criminals have some time to arm themselves (if they chose) before the SWAT breaks down the door. The sane ones will surrender peacefully while we get to rid the world of criminals loony enough to get in a gunfight with the SWAT. Probably save a bundle on courts, lawyers and prisons too.
5.9.2008 1:18am
OrinKerr:
I was referring more to Scalia's argument that there are checks in place to keep modern police officers in line. The general behavior of the North Little Rock PD since the raid hasn't been particularly professional, transparent, or accountable. It's probably to early to know if they violated knock-and-announce, but the warrant itself offers no specific evidence of exigent circumstances to justify a no-knock, as required by Wilson and >Richards. Perhaps that evidence is in the affidavit, but the police won't release the affidavits, even though they're public record (I'm filing an open records request next week). Perhaps the police will argue that exigent circumstances presented themselves at the scene, but they're going to have a hard time arguing that, given that Ingle says he was asleep at the time of the raid, and that the raiding officers found him in his bed.

Radley, I thought that the warrant expressly states that the judge found reasonable suspicion that it would be dangerous or futile to knock and announce, and that therefore the cops didn't need to. Is that wrong? Now, you might hypothesize that you wouldn't have found reasonable suspicion if you were the judge, based on what you think you might find if the affidavit were available. But even if this proves to be the case, then it's the judge's fault, not the cops' fault; it's hard to see how this relates to Justice Scalia's reasoning in Hudson.

More broadly Justice Scalia is correct that the police today are much more professional than they were at the time of Mapp. I think the difficulty is that we have forgotten the pre-Mapp era; in that era, the cops couldn't have cared less about the Fourth Amendment, even though it was binding in theory on the police after Wolf v. Colorado. (Just look at the outrageous facts of Mapp to get an idea,( Justice Scalia was asking in Hudson whether there needed to be a suppression remedy to enforce the K&A rule, and I think he was accurate in expecting that the Court's holding would not lead the police to just completely ignore the knock and announce rule if there was no suppression remedy (which historically there had not been in state courts).
5.9.2008 1:19am
Mike& (mail):
I think the case in Arkansas is at least one data point against Scalia's concurrence in Hudson.

How, Radley? Did they violate the knock and announce rule?


I gather that Radley (and others) were attacking the "new professionalism" rationale. There's no question that "new professionalism" was part of Hudson's ratio decidendi. Here is part of what Scalia wrote:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to 'assume' that unlawful police behavior would 'be dealt with appropriately' by the authorities, United States v. Payner, 447 U. S. 727 , n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been 'wide-ranging reforms in the education, training, and supervision of police officers.' Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline.


Many who deal with police find that to have little basis in reality.

There are many good reasons to not allow suppression for knock-and-announce violations. I thought suppression was the wrong remedy.

But most are taking greater issue with the rationale of Hudson rather than the holding.
5.9.2008 1:20am
OrinKerr:
Orin, are you implying that there ought to be no remedy for a violation of K&A that does not change the evidence gathered? If so, we will have to part company on this point. Perhaps exclusion is a poor remedy, but I insist (so long as we are talking ought and not is) that unjustified violations of K&A should have some negative implications for the officers/dept.

No, I am not implying that there should be no remedy.
5.9.2008 1:20am
Oren:
Because if I wake up to the sound of my door being kicked open, I wouldn't be started and maybe think it's better to error on the side of my own safety?
If it happened to me, there would be no thinking involved (there's no time to think). The person kicking down the door will eat buckshot. Of course, I know the local police here and, if they wanted me, they'd just knock and ask politely. Manners will get you a long way.

Also, to clarify my 12:18, my point was that in the case of a short 'seige', the police have all the advantages as well as guaranteeing the safety of perps that want to surrender peacefully. The only downside is the destruction of evidence and some minor disruption to traffic.
5.9.2008 1:23am
Vinnie (mail):
I need some numbers.
How many times was barny fife killed when he just walked up and knocked on the door?
5.9.2008 1:24am
Oren:
Orin, can you propose a scheme that you think would work?
5.9.2008 1:24am
Mike& (mail):
I think the difficulty is that we have forgotten the pre-Mapp era; in that era, the cops couldn't have cared less about the Fourth Amendment, even though it was binding in theory on the police after Wolf v. Colorado.


If you drive a crappy car in a not-nice neighborhood, they still couldn't care care less about the Fourth Amendment.

It just comes down to a social class issue. People in higher classes are used to police professionalism. That's their reality. In fact, I don't think I've had a bad experience with an officer for over a decade. If my entire life had been like this, I'd probably love cops and think that bad experiences are the exception.

But having lived in a not-so-great area growing up, my experience was the exact opposite. Whether walking or driving, you get stopped for nothing. Or you get stopped for stuff no one else gets stopped for.

So the professionalism extends to the higher classes, but not the lower classes.

Of course, I suspect that, even at the time of Mapp, that was the case.
5.9.2008 1:27am
Haberdash:
The Reason piece was interesting but I didn't get a feel for the other side. All the piece contained supporting the prosecution was random people saying "we think he was guilty." That leads me to suspect that the case against him is better than the Reason video suggests, that there is some hiding the ball going on. Still, if the Reason video is accurate, it's a very troubling case.
5.9.2008 2:50am
Haberdash:

Many who deal with police find that to have little basis in reality.


How old are you? Have you studied the history? I think it's nearly impossible to refute that professionalism has increased since Mapp. Now maybe it's not enough, in your opinion, but are you actually disputing that American police departments are not significantly more professional than 40 years ago?
5.9.2008 2:56am
OrinKerr:
If you drive a crappy car in a not-nice neighborhood, they still couldn't care care less about the Fourth Amendment.

Many care less than they should, but that's not the same as not caring at all. Recall the facts of Mapp:
On May 23, 1957, three Cleveland police officers arrived at appellant's residence in that city pursuant to information that "a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home." Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.

The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened 2 and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their defiance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the "warrant" and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been "belligerent" [367 U.S. 643, 645] in resisting their official rescue of the "warrant" from her person. Running roughshod over appellant, a policeman "grabbed" her, "twisted [her] hand," and she "yelled [and] pleaded with him" because "it was hurting." Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.

At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, "There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home."
In my view, *that* is really not caring at all.
5.9.2008 3:01am
Haberdash:

but scalia is clearly conservative, and at least in cases like medical mj, he went pretty activist with his 10th interpretation


Sure he wasn't being the perfect originalist in that instance but niether was he being particularly activist. He was merely following well established commerce clause precedent. The precent happens to not be very originalist, imho, but it's also the precedent on which most federal regulation power rests. I suppose Scalia could have made a gallant originalist defense of federalism. But who are we kidding? The expansive reading of the commerce clause is here to stay.
5.9.2008 3:07am
bla bla:
Orin, stop challenging Kmiec on his criticisms of McCain. He is obviously pandering (consciously or unconsciously) to Obama to get some sort of nomination or appointment. It is painful to watch, but good for us in the long run. If he can convince Obama that he's appointable, then that's one Obama appointee who is libertarian rather than statist.
5.9.2008 10:03am
Anderson (mail):
Balko has identified a genuine problem -- people murdered by gung-ho cops seething for a chance to play SWAT.

Y'all can go on about "anecdotes vs. data" all you want, but people have been killed, and will continued to be killed, by cops with no accountability worth mentioning.

So long as you make it evident that you don't give a flip who the cops kill, I'm not terribly interested in listening to your arguments, because I have no reason to think they're made in good faith.
5.9.2008 10:50am
whit:
"Y'all can go on about "anecdotes vs. data" all you want,"

yes. lord forbid i inject facts, data, and a call for empirical evidence and comparisons into an emotional debate.

excuuuse me

"but people have been killed, and will continued to be killed, by cops with no accountability worth mentioning. "

the issue is people killed WITHOUT justification, not people killed, and yes it happens. we both want it to happen less often. ignoring how often it actually happens as a %age of incidents is your plea for ignorance, not mine.


"So long as you make it evident that you don't give a flip who the cops kill,"

which of course is your tired strawman. of course i care. that's not the issue

" I'm not terribly interested in listening to your arguments, because I have no reason to think they're made in good faith."

i prefer data to emotion. you don't. fair enough
5.9.2008 12:44pm
whit:
"The expansive reading of the commerce clause is here to stay."

sadly. i have to agree
5.9.2008 12:45pm
PC:
Prof. Kerr,

The facts of Mapp sound quite plausible had they occurred in May 23, 2007, minus the lack of a Taser being deployed for assaulting a police officer. At least Miss Mapp didn't have her arm broken by the police. See Siler, Lester Eugene.
5.9.2008 12:50pm
whit:
"How old are you? Have you studied the history? I think it's nearly impossible to refute that professionalism has increased since Mapp. Now maybe it's not enough, in your opinion, but are you actually disputing that American police departments are not significantly more professional than 40 years ago?"

and of course to inject that petty "data" thing in here to support your point.

now there are 1) more cops with college degrees, more cops with advanced degrees (i have worked with and trained several MA's, MS's, lawyers (lord forbid but its true), and even one PhD. 2) more cops with professional experience 3) much higher accountability (the bad get weeded out more quickly)... 4) MUCH more extensive background testing (psychological tests - MMPA, stanford binet), etc.

anecdotally, i have heard numerous stories about the good old (bad ole) days and i have never heard any cop claim that "back in the day" there wasn't WAY more corruption, excessive force, etc. there is WAY more emphasis on training (much longer extensive training) also.

there is simply no doubt that what you say is true.
5.9.2008 12:51pm
whit:
"It just comes down to a social class issue. People in higher classes are used to police professionalism. That's their reality. In fact, I don't think I've had a bad experience with an officer for over a decade. If my entire life had been like this, I'd probably love cops and think that bad experiences are the exception.

But having lived in a not-so-great area growing up, my experience was the exact opposite. Whether walking or driving, you get stopped for nothing. Or you get stopped for stuff no one else gets stopped for. "

to some extent i agree. i agree with macdonald et al that racial profiling is largely a myth. however, when it comes to CLASS, you are correct that there is SOME disparity there. cops ARE more likely to "go fishing" using pretext/minor violations when it comes to "dirtbag cars" etc.

that's simply a reality.

otoh, it is also true that in many areas the exact opposite has happened (depolicing) where cops won't stop anybody for ANYTHING and simply do the absolute minimum and nothing more. i know cops who work for one agency that is in a politically correct liberal city who literally do not make traffic stops AT ALL unless they witness something incredibly blatant, etc. they'd simply rather not get accused of profiling, harassment, etc. so they don't do ANYTHING. this of course is not good, but it's understandable.
5.9.2008 12:56pm
Oren:
i know cops who work for one agency that is in a politically correct liberal city who literally do not make traffic stops AT ALL unless they witness something incredibly blatant, etc
Sounds like libertarian heaven! Of course, I bet Staties like you mess it up for them. Blech.

cops ARE more likely to "go fishing" using pretext/minor violations when it comes to "dirtbag cars" etc.
This is the understatement of the week. The "failure to signal 100 feet" offense seems custom designed (along with SCOTUS coming up with a fantasy-objective standard for the 4A) to allow police to stop any car for any reason they see fit.
5.9.2008 2:10pm
whit:
"Sounds like libertarian heaven! Of course, I bet Staties like you mess it up for them. Blech. "

staties? god forbid. i am NOT a statie. WA doesn't even have a state POLICE. they have state PATROL. iow, concrete commando's. triple-a with a gun. also, an INCREDIBLY PC agency. i could NEVER be a trooper in WA. plus, all they do is tickets, accidents, dui's, and disabled vehicles. i'd rather swallow my glock.


i said: cops ARE more likely to "go fishing" using pretext/minor violations when it comes to "dirtbag cars" etc.

"This is the understatement of the week."

i am MR subtle understatement. it's part of my charm.

" The "failure to signal 100 feet" offense seems custom designed (along with SCOTUS coming up with a fantasy-objective standard for the 4A) to allow police to stop any car for any reason they see fit."

fwiw, WA has a "pretext rule" see state v. ladson

so did HI.

imo, pretext is bad case law. if you want to reduce "fishing stops", just eliminate much of the traffic code. don't require signals. allow 15 over the speed limit, etc. im serious.
5.9.2008 2:39pm
OrinKerr:
The facts of Mapp sound quite plausible had they occurred in May 23, 2007, minus the lack of a Taser being deployed for assaulting a police officer. At least Miss Mapp didn't have her arm broken by the police. See Siler, Lester Eugene.

If so, does that mean that Mapp was wrongly decided? The premise of Mapp was that a suppression remedy would deter wrongdoing; if it didn't deter any wrong doing, then presumably the suppression remedy is useless and not constitutionally required.
5.9.2008 2:41pm
hattio1:
Mike&says

If you drive a crappy car in a not-nice neighborhood, they still couldn't care care less about the Fourth Amendment.

It just comes down to a social class issue. People in higher classes are used to police professionalism. That's their reality. In fact, I don't think I've had a bad experience with an officer for over a decade. If my entire life had been like this, I'd probably love cops and think that bad experiences are the exception.

But having lived in a not-so-great area growing up, my experience was the exact opposite. Whether walking or driving, you get stopped for nothing. Or you get stopped for stuff no one else gets stopped for.

So the professionalism extends to the higher classes, but not the lower classes.

Of course, I suspect that, even at the time of Mapp, that was the case.


I have to agree completely with this. Scalia has no clue what happens in poor neighborhoods, and neither does Professor Kerr.

Professor Kerr responds that it was much worse at the time of Mapp. I pretty much agreed with him....until he posted the facts of Mapp. I was confusing it with another case.

But it's true that I can't see Mapp happening now. The officers in a similar case today would know enough to claim that Ms. Mapp had swung at her, would claim they had seen furtive movements through the window prior to entering, and would try to justify their search because of that. I suppose one could call that a new professionalism...I don't.
5.9.2008 2:48pm
hattio1:
Prof Kerr says;

If so [Mapp could occur today], does that mean that Mapp was wrongly decided? The premise of Mapp was that a suppression remedy would deter wrongdoing; if it didn't deter any wrong doing, then presumably the suppression remedy is useless and not constitutionally required.


No. It means the cops are getting better at realizing what they have to say to satisfy "exigent circumstances" or other excuse for warrantless searches. The answer is to get rid of the exceptions for search warrants.
5.9.2008 2:51pm
hattio1:
Whit,
Just out of curiousity, do you really think pre-text stops are that necessary to police work that you'd rather see most of the traffic code go away than lose the ability to make pre-text stops??? Don't get me wrong, I'm all for most of the traffic code going away, but it's hard for me to see any justification for pre-text stops....especially if someone is not a statist as you claim not to be.
5.9.2008 2:54pm
whit:
"But it's true that I can't see Mapp happening now. The officers in a similar case today would know enough to claim that Ms. Mapp had swung at her, would claim they had seen furtive movements through the window prior to entering, and would try to justify their search because of that. I suppose one could call that a new professionalism...I don't."

translation: cops just lie all the time

anti-cop bigotry noted.

most cops don't lie.
5.9.2008 2:54pm
whit:
"Just out of curiousity, do you really think pre-text stops are that necessary to police work that you'd rather see most of the traffic code go away than lose the ability to make pre-text stops??? Don't get me wrong, I'm all for most of the traffic code going away, but it's hard for me to see any justification for pre-text stops....especially if someone is not a statist as you claim not to be."

no, i'm saying that outlawing pretext stops is a worse solution than the problem

the ISSUE should be was the stop objectively reasonable. the problem with having courts decide if a stop is pretextual is that it turns the courts into quasi-mindreaders.

example: i see a car drive by. it has a burnt out taillight. clearly, that's an infraction and i can stop it. if im not busy, i just may do that

next day i see a car drive by. it has a burnt out taillight. i also happen to notice it has johnny dirtbag driving it, whom i have arrested twice for weapons violations, 3 times for assault, and twice for stolen property.

in the 2nd case, even though i might WANT to stop the latter car more, the OBJECTIVE rational for the stop are exactly the same. but in the second case, i have to worry that a court will decide that my SUBJECTIVE intent in case 2 was to stop johnny dirtbag because he's johnny dirtbag NOT because of the infraction.

do you see the problem? the cop is better off being 100% ignorant (the 1st case) of the vehicle and it's occupants. in the 2nd case, he and the defense attorney and judge are involved in this silly dance over why i WANTED to stop johnny dirtbag's car, despite the fact that it was entirely lawful OBJECTIVELY to do so.

THAT is the problem with pretext stop legislation.

like i said, just get rid of wide swaths of the vehicle code if you don't want cops stopping people for those offenses. but don't start playing thought-police mind games and create a perverse incentive.

the perverse incentive is that i am discouraged from stopping dirtbag because i am worried about the pretext claim, but not from stopping the other person, whom i know nothing about.

that is an absurd result

like much legislation (part of why i am a libertarian in the first place), the law of unintended consequences kicks in, and the cure is worse than the disease
5.9.2008 3:01pm
hattio1:
Whit here's a question.

When you stop Johnny dirtbag, and find drugs on him, and the prosecutor asks WHY you stopped Johnny dirtbag, what do you answer?

If it's that he had a burnt out tail-light, then you've proved two of my points. First, that cops do lie. The burnt-out tail light was the excuse you had to stop Johnny dirtbag...but the reason you stopped him was because he was (in your opinion) Johnny dirtbag.

As to your parade of horribles when the courts are looking into police minds...yeah, and this is a problem???

Courts look into people's heads all the time. You know all about mens rea and determining whether an action was intentional voluntary knowing reckless willful, etc. Why should cop heads be sacrosanct?

Secondly, if a pre-text stop rule would keep you from harrassing some guy just because he has a prior record, that's a feature not a bug.
5.9.2008 3:08pm
David M. Nieporent (www):
"Y'all can go on about "anecdotes vs. data" all you want,"

yes. lord forbid i inject facts, data, and a call for empirical evidence and comparisons into an emotional debate.
You don't inject data, Whit. You inject your see-no-evil-hear-no-evil failure to notice anything going on in your personal experience.
5.9.2008 3:12pm
whit:
"No. It means the cops are getting better at realizing what they have to say to satisfy "exigent circumstances" or other excuse for warrantless searches. The answer is to get rid of the exceptions for search warrants."

you do realize that (at least in my case), we make scores of warrantless entries to homes every month (i do) based on all sorts of exceptions, the VAST majority have NOTHING to do with seeking drug (or other evidence). exigency is not made up

just this past week, i entered a house without a warrant on at least a 1/2 dozen occasions for reports of domestic violence (neighbor or person involved calling). no warrant required. should that be done away with? and i cannot recall the last time i found drug evidence in a domestic violence response. it's not a pretext for finding drugs, as many defense attorney seem to argue when it comes to exigency.

i also entered a house to do a welfare check on a suicidal extrenmely intoxicated female. she ended up having taken high levels of anti-depressants, and had a blood alcohol of over .3 (note the ld50 is .4 iirc, and that's WITHOUT polydrug combos). should i just have said screw it, or waited an hour or two to get a warrant (at a minimum)?

one of my partners yesterday entered a house after a guy shot himself in the head. needless to say he could not give them consent. is that not exigency?

etc. etc.

the problem (as i keep explaining) is selection bias (and anti-cop bias). you ONLY see and concentrate on the borderline, problematic (as you see it) etc. exigent entries, so you think that's all there is. it's a classic (il)logical fallacy i see here.

which of the above exigent circ's would you eliminate?

here's another. a few years ago, i responded to a juvenile drinking party. when the guy came to the door, he refused entry, but i could see a guy passed out (or dead) on the couch behind him, who also appeared to be a minor. i gave the guy a compromise that he could wake the guy up and let me see he was ok, but he refused. i made warrantless exigent entry. the guy ended up being transported to the hospital with SEVERE alcohol poisoning. his parents thanked me Over and over again. should i have needed a warrant?

fwiw, with juvie drinking parties we often DO get warrants. frequently. when there ISN'T exigency

of course, if the morons cooperate and don't refuse entry most people get off with a warning. if they are going to play the "you need a warrant" game, they are going to get cited.

another reality is that if you waste time and resources for what SHOULD be a minor offense, you are not going to get leeway. that's called officer discretion. maybe we should eliminate that, too
5.9.2008 3:15pm
OrinKerr:
No. It means the cops are getting better at realizing what they have to say to satisfy "exigent circumstances" or other excuse for warrantless searches. The answer is to get rid of the exceptions for search warrants.

Hattio, lawyers make these arguments, not cops. So it sounds like the problem is not that the police aren't following existing doctrine, but that you think the doctrine should change. Whether that is true or not seems pretty far removed from Justice Scalia's rationale in Hudson v. Michigan.
5.9.2008 3:15pm
David M. Nieporent (www):
most cops don't lie.
...unless they deem it necessary to protect themselves, or to convict someone they "know" is guilty. And by "guilty," I mean "guilty of something," not necessarily guilty of the offense in question.
5.9.2008 3:17pm
whit:
"When you stop Johnny dirtbag, and find drugs on him, and the prosecutor asks WHY you stopped Johnny dirtbag, what do you answer? "

the reason is the burnt out taillight. but i also mention that i know he is a career criminal,a nd i have arrested him numerous times before.

"If it's that he had a burnt out tail-light, then you've proved two of my points. First, that cops do lie. The burnt-out tail light was the excuse you had to stop Johnny dirtbag...but the reason you stopped him was because he was (in your opinion) Johnny dirtbag."

false. the REASON i stopped him was the same reason i stopped soccer mom. FOR THE BURNT OUT TAILLIGHT. fwiw, ifrequently stop soccer moms for that rubbish. give them a warning. that's a good thing. then they know to GET IT FIXED.

the point is that due to pretext, i am discouraged from stopping johnny dirtbag for an infraction but NOT sally soccer mom.

pretext thus creates a two-tiered standard. those law abiding citizens are ok, and those dirtbags that i don't KNOW are dirtbags are ok to stop. those that are committing infractions that i KNOW are dirtbags are problematic.

it's very big brother (how ironic in anti-pretext law) to be delving itno what the cop wanted to do and why vs. his objective reasons for doing so.

the rule of law should mean the latter is what matters. it's the same fallacy used against medical mj proponents. sure, many medical mj proponents are for same merely because they want mj to be legalized. but that's irrelevant to whether medical mj is a good idea.

"As to your parade of horribles when the courts are looking into police minds...yeah, and this is a problem???
"

it's a huge problem for the reasons mentioned. it rewards ignorance, and it creates perverse incentives - incentive to NOT stop johnny dirtbag for the EXACT SAME thing you routinely stop sallie soccer mom for.

fwiw, one way cops can help thwart this silliness is to show a record that they DO stop sallie soccer mom for the same thing.

iow, if you ONLY stop johnny dirtbag for infractions, you can't argue (or the prosecutor can't) that you routinely do it to ALL TYPES of citizens.

if you stop little old ladies for it too, it makes the specious pretext defense attorney case much more difficult.

"Courts look into people's heads all the time. You know all about mens rea and determining whether an action was intentional voluntary knowing reckless willful, etc. Why should cop heads be sacrosanct? "

the point is the LAW should be sacrosanct. just like self-defense in the case of a citizen. objectively legal stops should be based on the law, not what the officer WANTS. i don't WANT to arrest people for all kinds of stuff i have to, fwiw.

for example, if a citizen is arguing self-defense because he shot the burglar who broke into his house, and it also so happens that the burglar is the homeowners wife's ex-husband whom the homeowner HATES does that make his self-defense any less justified? of course not.

again, perverse incentives are bad. either it's legal to stop for a burnt out taillight or not. bright line. it's that simple.

the GOOD solution is to
1) do away with the law that allows you to stop for such equipment violation
2) limit the scope of the officer conduct during infraciton stops (which my jurisdiction does...). for example, one should not be allowed to ask for consent to search w/o at least reasonable suspicion. that is how my jurisdiction works

etc.

but again, my point is that the solution is worse than the problem. it creates disincentives for police to do their job when confronted with johnny dirtbag VS. soccer mom. ok to stop her, not him.

that IS perverse


Secondly, if a pre-text stop rule would keep you from harrassing some guy just because he has a prior record, that's a feature not a bug.
5.9.2008 3:25pm
whit:
"...unless they deem it necessary to protect themselves, or to convict someone they "know" is guilty. And by "guilty," I mean "guilty of something," not necessarily guilty of the offense in question."

you mean MOST do in your unjustified, bigoted unsubstantiated opinion.
5.9.2008 3:26pm
whit:
"Secondly, if a pre-text stop rule would keep you from harrassing some guy just because he has a prior record, that's a feature not a bug."

it is not "harassment" to stop somebody for an equipment infraction. and if it IS, then that law should be repealed that allows us to stop ANYBODY for it.

but it IS a bug when it keeps a cop from stopping ONE class of citizen for the EXACT same offense he stops another class for.

that is bigoted, it's just bigoted FOR dirtbags, which is just as bad as being bigoted against them

it's the same thing as racial preferences. giving people unfair POSITIVE treatment because of their race is just as bad giving them unfair negative treatment. and when you do give one race a favorable treatment in a zero sum game (like admissions), you necessarily are treating a corresponding person of the other race unfavorably.

it's bigotry pure and simple.

like i said, either do away with the traffic infractions. just stop cops from making ANY traffic stops for infractions (or a subset) and/or limit the scope.

but discouraging cops from stopping criminals for doing X when you ALSO stop sallie soccer mom for it is creating a favored class of individuals.

but if you are for discrimination, i guess you would be for anti-pretext legislation
5.9.2008 3:31pm
hattio1:
Professor Kerr says;

Hattio, lawyers make these arguments, not cops. So it sounds like the problem is not that the police aren't following existing doctrine, but that you think the doctrine should change.


Yes, but the police are now so "professional" that they know what to say so the District Attorney's arguments will be successful.

Whit says;

it's a huge problem for the reasons mentioned. it rewards ignorance, and it creates perverse incentives - incentive to NOT stop johnny dirtbag for the EXACT SAME thing you routinely stop sallie soccer mom for.

fwiw, one way cops can help thwart this silliness is to show a record that they DO stop sallie soccer mom for the same thing.

iow, if you ONLY stop johnny dirtbag for infractions, you can't argue (or the prosecutor can't) that you routinely do it to ALL TYPES of citizens.


Problem and solution outlined in three very short paragraphs...maybe the police ARE becoming more professional.

Less snarky, the problem is that, regardless of what you personally do, most cops are NOT stopping sallie soccermom, and if they stop her not asking for consent to search, and if consent to search is refused not coming up with a bullshit reason to search anyway or impound the car. You say you are stopping sallie soccermom, and that you can defeat the pre-text motion by showing that you are stopping sallie soccermom for the same thing. So where's the problem??? Ticket books are typically in triplicate so that the cop has something to take into court. You bring your ticket book (or your notebook if you warned her and didn't ticket) and show that you are stopping sally soccermom. No pre-textual stop and no problem. Oh, there will be problems showing this in most cases for most cops??? Hmmm. Could that be because they are NOT stopping sallie soccermom??

Whit also says;

2) limit the scope of the officer conduct during infraciton stops (which my jurisdiction does...). for example, one should not be allowed to ask for consent to search w/o at least reasonable suspicion. that is how my jurisdiction works


That's something I can agree with, but I don't think that protection is sufficient. But, as already established, I believe that cops will fairly consistently lie to meet the legal standard if they know what it is. Reasonable suspicion is not that hard to meet. And speaking of reasonable suspicion and lies to meet it, can ANYONE explain what "shifty eyes" really are?
5.9.2008 3:40pm
hattio1:
Whit,
You yourself said you can defeat these pre-text motions by showing you also stop sallie soccermom for the same thing. If you are stopping johnny dirtbag (in your opinion) for something you are not stopping sallie soccermom for, that's harrassment regardless of the legal excuse you use to stop him.

Oh, and have you ever noticed that everytime we get in these discussions, the bad guy is always male and the good citizen is always female?? And you wonder how I can question your fairness and lack of bias.
5.9.2008 3:45pm
whit:
"Yes, but the police are now so "professional" that they know what to say so the District Attorney's arguments will be successful. "

cops don't work for the district attorney. our jobs are not to gather evidence that helps convict people. we gather evidence REGARDLESS of whether it is inculpatory or exculpatory. i don't do things to make a case "easier to prove". i do things to make an investigation MORE complete. i don't field test drugs to PROVE they are drugs. i field test drugs to help determine IF they are drugs, so people who are innocent are released, etc.

again, you see a selection bias. you only see the cases that the prosecutor BRINGS to court because it IS (presumably strong) and the cop IS a decent witness for the prosecution.

in the innumerable cases where the person exonerates himself (either pre- or post-miranda) etc. the case doesn't go to court, so the cop as defense witness is largely unnecessary.

but you come at this from the wrong (but typical) angle in assuming that we work for the prosecutor or are trying to make a case "easier to prove". we aren't. it's a like a DUI. a breathalyzer doesn't make a case easier to prove IF THE GUY IS IN FACT INNOCENT. but those cases don't go to court, so all you see is where the breathalyzer helped convict the guy. does it therefore follow that if you are sober, you shouldn't blow?

you much more frequently see cases where the suspect statement incriminates vs. exonerates the defendant? why, because in those cases where his statemetn exonerated (or helped to ), it NEVER GOT TO COURT, or even arrest, - usually. again, selection bias. this is why defense attorneys think it's best NOT to give a statement to police when mirandized/etc. false. it's arguably best not to give a statement in that case when you are guilty as hell. scores of times, things people say get them out of cuffs, and if arrested, out of being charged, etc.

this is one of my pet peeves, so excuse the rant


"Less snarky, the problem is that, regardless of what you personally do, most cops are NOT stopping sallie soccermom, "

in your (in my opinion) unsubstantiated opinion.

you know this how? again, selection bias. you don't see sallie soccer mom in the suppression hearing cause sallie soccer mom doesn't HAVE DRUGS TO SUPPRESS (usually)

do you see how this creates the logical fallacy you fall into

i can stop 30 sallie soccer moms in a row without finding a warrant or suspended license. so, no search incident, even if they had drugs.

otoh, johnnie dirtbags FREQUENTLY have a warrant or suspended license so MUCH more frequently are searched and MUCH more frequently have drugs, illegal weapons, stolen property, etc. when they are

it's selection bias. because you don't see these cases in court (the former), you assume cops aren't stopping sallie soccer mom. it's illogical. and you keep doing it based on no position of knowledge

"and if they stop her not asking for consent to search, and if consent to search is refused not coming up with a bullshit reason to search anyway or impound the car."

that's not an example in evidence.

like i said, in my jurisdiction we can't even ask for consent to search without RS. and if you want to do away with consent to search then probe the LEGISLATURE to outlaw it. they can do it.

" You say you are stopping sallie soccermom, and that you can defeat the pre-text motion by showing that you are stopping sallie soccermom for the same thing. So where's the problem??? "

it STILL creates a perverse incentive. i am saying that stopping sallie soccer mom helps show the argument is bullsh*te. it doesn't follow that the deterrent to stop johnnie dirtbag isn't there, or that the legislature has created a perverse incentive.

"Ticket books are typically in triplicate so that the cop has something to take into court. You bring your ticket book (or your notebook if you warned her and didn't ticket) and show that you are stopping sally soccermom. No pre-textual stop and no problem. Oh, there will be problems showing this in most cases for most cops??? Hmmm. Could that be because they are NOT stopping sallie soccermom?? "

no, it could be because the decision as to pretext is ultimately SUBJECTIVE by the judge.

you keep missing the point. #1 it deters police from making those stops #2 it creates a situation where ignorance is rewarded and there is a two-class tier structure


"Whit also says;


2) limit the scope of the officer conduct during infraciton stops (which my jurisdiction does...). for example, one should not be allowed to ask for consent to search w/o at least reasonable suspicion. that is how my jurisdiction works


That's something I can agree with, but I don't think that protection is sufficient. But, as already established, I believe that cops will fairly consistently lie to meet the legal standard if they know what it is. Reasonable suspicion is not that hard to meet. And speaking of reasonable suspicion and lies to meet it, can ANYONE explain what "shifty eyes" really are?"

if you are just going to insert your anti-cop bigotry, then there's nothing to argue

we might as well not allow cops to do anything if cops will "fairly consistently lie" .

that's not my experience, but it's your (and many others' ) answers to anything in regards to cops.

i mean why have a miranda requirement. all cops have to do is lie and say they read miranda when they didn't. right?

etc. etc.
5.9.2008 3:57pm
whit:
"You yourself said you can defeat these pre-text motions by showing you also stop sallie soccermom for the same thing. If you are stopping johnny dirtbag (in your opinion) for something you are not stopping sallie soccermom for, that's harrassment regardless of the legal excuse you use to stop him.

Oh, and have you ever noticed that everytime we get in these discussions, the bad guy is always male and the good citizen is always female?? And you wonder how I can question your fairness and lack of bias.
"

maybe in discussion with you, but i have been among the harshest critic of DV laws, and other laws that favor false accusers and have repeatedly pointed out that a disturbingly high %age of DV allegations, which are usually made by women are outright false.

i was referencing sallie soccer mom because that is the default "non-criminal" example used in LEO circles.

fwiw, it's no myth that men are the perps in the VAST majority of part I crimes. and over 8X more likely to commit those types of offenses.

i arrest plenty of women, even for domestic violence.

i actually think a big part of the problem in criminal jurisprudence , as often mentioned , is the erosion of rights (such as right to confront your accuser, or the right of free association) that have sprung from the violence against women act, and other legislation done "to save women".

and have repeatedly stated that these erosion of rights are far more extensive and disproportionately affect the innocnet FAR more than the default bogeyman of this site (and others) which is the case law surrounding drug offense)
5.9.2008 4:02pm
hattio1:
Whit,
You keep saying that I dont' have your experience...fair enough, but you also don't have mine. Here the cops DO work for the DA, at least ipso facto. I've seen cops go and pick up people to bring them to a court date when they were NOT subpoenaed. And go pick them up when a witness doesn't show for a meeting with a DA.
As to cops consistently lying, well again, I see it. As to Miranda though, in my jurisdiction you are required to record the miranda reading and response. Also, you say;

no, it could be because the decision as to pretext is ultimately SUBJECTIVE by the judge.


As is reasonable suspicion, shifty eyes, nervous behavior, not being honest, etc. Things WILL be subjective. Without a pre-text rule, cops are the only ones who get to make subjective determinations of what people are thinking/how they are acting. Given my experience, I think that's a bad idea.

But, I've said this before. If you're being honest about how you practice your profession...Please, please, please apply in my jurisdiction.
5.9.2008 4:12pm
hattio1:
Whit,
I agree with you that the DV laws are bad and have created an erosion of your rights. But, in my opinion you reflect a serious misunderstanding that is common among LEO and prosecutors (and though I'm often snarky I say this in all seriousness and not to offend). That is that exoneration at trial of the innocent is NOT a travesty of justice. It's obviously better than them being convicted. But a person's life, family relationships, finances, employment etc can often be ruined by the time someone gets to trial. Even if they have been out on bail awaiting trial, and almost certainly if they haven't. That may be why defense attorneys focus so often on those rights and laws that surround the search, arrest, and early investigation procedures.
5.9.2008 4:18pm
jccamp:
Radley,

"...suspect's registered permit for a gun as reason he may be dangerous, and require a no-knock entry. Which of course is absurd. I don't know many hardened criminals or drug dealers who'd take the time and risk the exposure of obtaining a legal gun permit. If anything, it shows that the police understand that these types of raids can provoke even otherwise lawful people to violence in defense of their homes. "


You're the person making a blanket statement that criminals do not register firearms. You cite two cases, that frankly, do not prove your point. I'm pointing out that lots of hoodlums will have access to legally purchased and/or registered firearms in their domiciles. Further, if the police discover the presence of a firearm in the house where they plan to serve a warrant, what's your option for the officers? Call ahead and ask the non-criminal who is the resident at a place subject to a court-authorized search for evidence or contraband to put his firearm outside? Ring the doorbell and give the resident time to decide whether he's going to shoot or not? Maybe the mind-police can read the suspect's thoughts and decide if he has a firearm in his hand because he's going to shoot, or just because he's confused and frightened. Or better yet, maybe the cops should just avoid any search warrant where a suspect may offer violence.

One more thing - when the police get a no-knock warrant, it doesn't mean they do not announce who they are. it means they don't have to wait the reasonable time. While they're smashing the door in, do you really think they aren't screaming "Police! Search Warrant!" Do you really think they not yelling "Police. Don't move." or similar as they go through the door and hit the inside of the house? I guess you haven't seen too many search warrants served. Usually, you can't hear yourself think for all the screaming and yelling by the officers.

In the one case you cited, why is it the officers' fault that a person who sold drugs, then hides in a closet with a gun in his hand, gets shot. You said...

"it's hard to believe he'd have been holding a gun had he known the cops were cops."


Well, no, it's not, unless you know what the suspect was thinking. it certainly wasn't hard for the cops to believe, since that's what they saw. Maybe the suspect had committed other (undiscovered) crimes, maybe he just panicked, I guess we'll never know. But your statement simply has no foundation. It might be hard for you to believe, but then, your bias is showing.
5.9.2008 4:24pm
whit:
"I agree with you that the DV laws are bad and have created an erosion of your rights. But, in my opinion you reflect a serious misunderstanding that is common among LEO and prosecutors (and though I'm often snarky I say this in all seriousness and not to offend). That is that exoneration at trial of the innocent is NOT a travesty of justice. It's obviously better than them being convicted. But a person's life, family relationships, finances, employment etc can often be ruined by the time someone gets to trial. Even if they have been out on bail awaiting trial, and almost certainly if they haven't. That may be why defense attorneys focus so often on those rights and laws that surround the search, arrest, and early investigation procedures."

i agree. but as usual, you miss my point

my point is that giving a statement pre or post miranda, can result in 1) un-arrest 2) decision not to charge, etc.

those cases never even GET to court. that's my point

happens all the time. but you don't SEE those cases in court. again, selection bias. offering an innocent explanation, alibi, etc. is a good thing. and innocent people almost always benefit from talking to police and explaining - pre or post miranda.
5.9.2008 4:42pm
whit:
"As is reasonable suspicion, shifty eyes, nervous behavior, not being honest, etc. Things WILL be subjective. Without a pre-text rule, cops are the only ones who get to make subjective determinations of what people are thinking/how they are acting. Given my experience, I think that's a bad idea. "

except that's now what pretext is about. you are (shades of michelle obama'ism) movinf the goalpost.

what pretext says is that even IF you have a valid legal reason to stop X, that that can be ruled invalid, and stop suppressed if the judge thinks you *really* wanted to stop X for something else. that's absurd because what should matter is the objective validity of the stop based on the law.

reasonable suspicion is necessarily subjective, to some extent, as is probable cause. but that's different. that's an evidence standard, not an issue of violation of the law. it HAS to be subjective.

note also that even though the standard is (somewhat ) subjective, it is still irrelevant as to what the officer wants to do.

for example, let's say there is metric a**loads of evidence that i REALLY want to arrest sallie dirtbag :)

the fact that i want to do that (subjective intent) is irrelevant to the probable cause to arrest her when i find she has 6 warrants.

that's my point about subjectivity. pretext delves into what the officer (presumably) wanted to do and why vs. whether it is objectively reasonable based on the law to do what he did.

johnny soccer dad drives by with a burnt out taillight. kewl. sallie dirtbag drives by with a burnt out taillight, not kewl.
5.9.2008 4:50pm
jccamp:
Radley,

BTW, a known effect of extreme stress and/or a burst of adrenaline is a narrowing of vision, i.e. tunnel vision, and a temporary loss of auditory function. Some people may lose their cognitive ability for a very short time - they freeze mentally. For instance, police officers may discharge their firearms and later have no memory of the noise of the shot(s). Perhaps the people who inexplicably take a firearm in their hand when confronted by a police raid are experiencing one or another of the symptoms of adrenal response, and really do not hear the officers' shouting. But the cops may have announced their presence and authority.

Would this perhaps explain some of the cases you write about? Is it worth looking into? Or does this not fit your preconceived notions that the cops are mindless storm-troopers, with nothing better to do than shoot and kill innocent civilians?
5.9.2008 4:53pm
whit:
"You're the person making a blanket statement that criminals do not register firearms. You cite two cases, that frankly, do not prove your point. I'm pointing out that lots of hoodlums will have access to legally purchased and/or registered firearms in their domiciles. Further, if the police discover the presence of a firearm in the house where they plan to serve a warrant, what's your option for the officers? Call ahead and ask the non-criminal who is the resident at a place subject to a court-authorized search for evidence or contraband to put his firearm outside? Ring the doorbell and give the resident time to decide whether he's going to shoot or not?"

just because i have a PC to get a warrant for the suspect, AND i know he has access to and or owns a firearm CERTAINLY does not in and of itself justify a no-knock.

i've done many many warrants on people who i knew to have gun(s) in the home and the warrants were not no-knock. it depends also on the person's history of violence, past criminal acts, what the warrant is for, etc. etc.

in some areas it seems practically everybody has a gun in the home. so what?

if the warrant is for check fraud, for example, the guy has a gun, and he has no history of violent crime, there is no way i would say a no-knock is justified.
5.9.2008 4:58pm
jccamp:
I wasn't suggesting that the mere presence of a firearm in a place to be searched legitimizes a no-knock warrant. I've a thousand warrants or more, and only one was a no-knock. I was suggesting the source of the quote was guilty of exaggeration and hyperbole.
5.9.2008 5:08pm
hattio1:
Whit,
I agree that reasonable suspicion and pre-text are two different issues. But the fact is that LEO's subjective beliefs enter into the equation all the time. Anything that brings in another perspective is a good thing. Oh, and they are not always completely separate issues. If cops who arrest "Johnny Dirtbag" are always going to use their subjective impression of "shifty eyes and nervous behavior" to justify a search, then preventing them from pulling him over on a pre-text prevents LEO from using his subjective impression to conduct a search.

But, that brings me to another point. In a different post, you said;


offering an innocent explanation, alibi, etc. is a good thing. and innocent people almost always benefit from talking to police and explaining - pre or post miranda.


Only if you SUBJECTIVELY believe what the person is saying. The innocent explanation or alibi won't help if the police officer doesn't believe them. Which they won't if they pulled the person over OBJECTIVELY for a burnt out tail light, but SUBJECTIVELY because the LEO "knows" they are Johnny Dirtbag. And I have seen police officers twist themselves into knots trying to convince themselves that the evidence supports guilt...because they already "know." Which is why I am for pre-text stops, and damn near anything else that would make an effective counter to a police officer's subjective beliefs.
5.9.2008 5:09pm
jccamp:
Sorry, here's the quote I was referring to

"...suspect's registered permit for a gun as reason he may be dangerous, and require a no-knock entry. Which of course is absurd. I don't know many hardened criminals or drug dealers who'd take the time and risk the exposure of obtaining a legal gun permit. If anything, it shows that the police understand that these types of raids can provoke even otherwise lawful people to violence in defense of their homes. "
5.9.2008 5:09pm
hattio1:
jccamp,
You're "known" effect would seem to mitigate AGAINST using no-knock warrants. If the effect of adrenaline is to make folks not hear the calls that it is police, why not lessen the effect of adrenaline...by requiring them to announce themselves as police while knocking calmly on the door as a citizen would...unless of course the person has a serious history of violence. Then the people would hear them, not pick up a gun in reasonable self defense, not fire on folks they don't know are police in reasonable self defense, and have more police and more citizens alive...seems like a win-win.
5.9.2008 5:12pm
jccamp:
Why the apostrophes? Look it up. It's a genuine physical response.

Next, what you're saying is that the police should grant every person in every warrant the benefit of the doubt that adrenal response may occur, and instead of protecting evidence that might be destroyed, we should wait calmly until someone gets over their panic attack and comes to the door? Please remember the purpose of any search warrant is to discover evidence of criminal conduct, the discovery and prosecution of which is supposed to benefit everyone. Every warrant service is a balance between preventing evidence destruction and trying to keep everyone, including the cops and the occupants, safe. If the evidence is an 800 pound anvil, I agree - the cops can wait. If the evidence is say, trace elements on garments that could be destroyed in seconds, then timeliness of entry is critical, wouldn't you agree?

I agree that the potential effect of adrenal response can create a situation where mistaken perceptions result in a tragedy. I'm not sure what the answer is, but a blanket indictment of police search warrant service certainly is not a reasonable response.
5.9.2008 5:24pm
whit:
"I agree that reasonable suspicion and pre-text are two different issues. But the fact is that LEO's subjective beliefs enter into the equation all the time. Anything that brings in another perspective is a good thing. Oh, and they are not always completely separate issues. If cops who arrest "Johnny Dirtbag" are always going to use their subjective impression of "shifty eyes and nervous behavior" to justify a search, then preventing them from pulling him over on a pre-text prevents LEO from using his subjective impression to conduct a search. "

you can't ever use that stuff for a SEARCH.

given sufficient reasonable suspicion can justify a FRISK.

searches require probable cause. just for clarification. i frequently see people use these terms interchangeably.

terry: frisk
PC : search
5.9.2008 5:40pm
whit:
"I wasn't suggesting that the mere presence of a firearm in a place to be searched legitimizes a no-knock warrant. I've a thousand warrants or more, and only one was a no-knock. I was suggesting the source of the quote was guilty of exaggeration and hyperbole."

jccamp, my bad
5.9.2008 5:41pm
jccamp:
I probably wasn't making a lot of sense. Lost my temper at the tone of some of the posts. My fingers perhaps exceeded my brain speed.
5.9.2008 5:44pm
whit:
i said: "offering an innocent explanation, alibi, etc. is a good thing. and innocent people almost always benefit from talking to police and explaining - pre or post miranda. "



you say: "Only if you SUBJECTIVELY believe what the person is saying."

no. more importantly if the explanation FITS the other objectively obtainable facts. this happens ALL the time. many many times in a week people's innocent explanations save them a ticket, and/or arrest, and/or trial. you just don't SEE those cases because they never get to trial.

seriously. try doing some ride alongs. this is way more frequent than you think.

" The innocent explanation or alibi won't help if the police officer doesn't believe them. "

false. even if the cop doesn't believe it. a TRUE alibi or explanation will help because it's far more credible than one presented AFTER a defendant is arrested ,and consults with an attorney because that allows time for fabrication, collusion, etc.

for example, if two suspects are seperated at the scene, mirandized and give the same account of an action, that is INFINITELY better exculpatory evidence, than if they present same alibi/explanation at trial. for obvious reasons.

i can give a million of examples of post-miranda stuff. i took a guy into custody for brandishing. guy gave a full statement that was pretty good self-defense. needless to say he went home, and the prosecutors declined to charge. if he hadn't said anything - it would have at least gone to trial, and he would have been booked vs. released.

went to a dv where one brother stabbed the other. because the stabber gave a statement, post miranda, it turned out the stabbee ended being the one charged because the stabbing was clearly self defense.

again, you don't see these things cause they never GET to court. but this is how many, if not most , interviews/interrogations go. especially terry stuff where reasonable suspicion often, if not usually dissolves upon further investigation, to include an innocent person giving their side.

another example, im interviewing somebody and i see blood on his shoes and cuffs. turns out he was slaughtering a deer earlier in his backyard, gave the explanation, we walk back there - bingo a deer, etc.

"Which they won't if they pulled the person over OBJECTIVELY for a burnt out tail light, but SUBJECTIVELY because the LEO "knows" they are Johnny Dirtbag. And I have seen police officers twist themselves into knots trying to convince themselves that the evidence supports guilt...because they already "know."

it's called cognitive dissonance. everybody is prone to it, to a lesser or greater extent, including juries, cops, defense attorneys, prosecutors, etc.

doesn't negate my point - which is that it is almost always in the best interest of the innocent to speak to the police, and frequently in the best interest of th eguilty.

" Which is why I am for pre-text stops, and damn near anything else that would make an effective counter to a police officer's subjective beliefs."

except pretext stops are not based on subjective beliefs. they still, even if they are arguably "pretextual" , rely on a legally valid objective reason for a stop.

pretext is an invented defense to unlawful conduct. that's what it comes down to.

and as such, it should not be a constitutional issue. it's an issue for the legislature. the legislature can put lots of restrictions on police that are not constitutionally mandated.

that's where the case need be argued.
5.9.2008 5:50pm
Radley Balko (mail) (www):
jcamp --

No one is saying that police enjoy "blasting innocent, law-abiding citizens." I'm saying that these tactics are too often used against people for nonviolent drug crimes, and against people who have no history of violent behavior. In that case, you're not ameliorating an already violent situation. You're creating violence and confrontation where there was none before. And you're putting the people on the receiving end of these raids--innocent and guilty--in a terrible position having to determine if they're being raided by cops or criminals.

It's entirely foreseeable that a number of such confrontations will end tragically. The Cory Maye case is one example. There have been a half dozen other in just the last few months, including four police officers shot by people who had no prior criminal record, and who had a misdemeanor amount of drugs on them, if they had any at all.

I'll concede that only a very small percentage of these raids go wrong. But even a small percentage of 40-50,000 per year is still a large number. We could start using SWAT teams to apprehend parking ticket scofflaws, and I'll bet the percentage of raids gone wrong would be just as low. That doesn't mean it's an appropriate use for SWAT teams. I just object in general to the idea that 100-150 times per day in this country, police dressed in paramilitary garb beat down the doors of American citizens to enforce laws against consensual crimes. That's just not an image I associate with a free society.

If you're investigating a murder, it makes sense to enter quickly before the suspect can destroy the evidence. If you're investigating a small-time pot dealer, I'd argue that if the guy's supply is small enough that he can flush it in 45 seconds, this isn't the kind of guy paramilitary tactics are appropriate for in the first place. Prof. Peter Kraska estimates that the number of SWAT deployments has risen 1,500 percent in the last 25 years. The vast majority of those deployments are for drug warrants. And the majority of those are for marijuana.

If you ask me, that's taking the "War on Drugs" metaphor entirely too seriously.
5.9.2008 6:15pm
whit:
radley, that is something i agree with entirely- as somebody who has written numerous search warrants, and been on many raids.

swat, just like any other govt. body - seeks to enlarge its span of control, its power, etc. thus, they have a natural tendency to overestimate when they should be used. heck, we saw this happen (for a while) in our own dept., when a few influential swat members managed to convince the powers that be that they needed to be used in ALL drug warrants. needless to say we detectives (i was at the time) protested, but to no avail. eventually, the policy was overturned.

a meth compound with armed violent bikers justifies swat. some dork selling ecstacy from his apartment does not.
5.9.2008 6:25pm
hattio1:
jccamp says;

Next, what you're saying is that the police should grant every person in every warrant the benefit of the doubt that adrenal response may occur, and instead of protecting evidence that might be destroyed, we should wait calmly until someone gets over their panic attack and comes to the door?


No, that's your straw man. First, there is no reason for someone to have a panic attack to a calm knock at the door and announcement of law enforcement. A little nervousness, sure, panic attack, no. Secondly, we were talking about no-knock warrants in the case of where a person had a gun. I thought it took something more (evidence of likelihood of violence) to justify a no-knock warrant. You are bringing up an entirely separate reason that might justify no-knock warrants, destruction of evidence (that can be easily destroyed) but that wasn't the previous discussion. As an aside, fabric is not that easy to get rid of in general, and even with knock warrants I think they only have to wait a short time.

Whit,
You can give examples where an innocent explanation got someone out, and I can give a ton of examples where an innocent explanation which fit the objective evidence was ignored by the police officer.

As I mentioned in another thread, if I asked you of examples where you arrested an innocent person, you would probably come up with few if any. That's because you don't believe the people you arrest are innocent. But I think you are honest enough to realize that in your career (didn't you say it's almost 20 years) you must have arrested the innocent...and almost certainly have done it after they gave a reasonable explanation that didn't fit with what you "knew" based on your subjective impression that the person was Johnny Dirtbag.

As to pre-text stops being an issue for the legislature, I haven't given it a lot of thought, but my gut impression is you are right. I was talking about what a smart policy would be, not what was constitutionally required (though I haven't really studied the issue and there may be arguments that it is or should be const. required).

BTW, I wouldn't assume I don't see the cases where someone offers an explanation and is let go. In my jurisdiction the DA is required to hand over ALL evidence gathered in the case, so if they question someone and later don't charge it, I get the audio. So, I see this a lot. I also see innocent people charged because of very superficial differences in stories (one estimates it was 7:30 and one estimates it was close to 9). If you get two people to describe the same incident, there WILL be differences in their story, regardless of their honesty.
5.9.2008 6:26pm
hattio1:
Whit,
Just to clarify my previous comment. If the cops question someone, decide they are not a suspect, then later arrest my client, I will get that audio.
5.9.2008 6:33pm
whit:
"As I mentioned in another thread, if I asked you of examples where you arrested an innocent person, you would probably come up with few if any"

wrong. please ask next time before making assumptions like this

as mentioned - DV law. DV law MANDATES arrest in situations where i most definitely would not arrest (make a physical booking) for several reasons - one of which is that the evidence is thin. heck, most he said/she said cases are thin.

but we don't have a choice. again, like so many other things people blame cops for - blame the legislature and/or blame those who make false complaints.

if i am mandated by law to arrest for a crime when i have probable cause, if i assume metric a**loads of civil liability if i don't, and if the law IN THIS CRIME ONLY (in my state) offers good faith immunity from false arrest - guess what . a lot of innocents get arrested.

combine this with the fact that recent scotus case law means DV defendants often have no right to confront their accuser in court, and you get plenty of innocents arrested.

i have had cases where "victims" outright admitted to me that they lied in a previous incident. but prosecutors won't even file false-complaint charges because DV "victims" are politically correct, even when they aren't victims.

our arrest standard is probable cause. that leaves a LOT of doubt as to innocence. in crimes where there is no pressing need to make a summary arrest, citation is preferred. and certainly in those cases where more investigation is needed, and/or the suspect has provided a decent exculpatory statement, etc. but DV law ties our hands. blame VAWA and the legislature, not me.

the reality is the vast majority of our arrests are for people who are clearly guilty - caught red handed, etc. but anybody who thinks that innocents don't get sometimes arrested is fricking nuts

and like i said again, WHEN innocents HELP THEMSELVES by providing statements they are less likely to be booked, less likely to be charged, and less likely to be convicted.
5.9.2008 7:00pm
whit:
"As to pre-text stops being an issue for the legislature, I haven't given it a lot of thought, but my gut impression is you are right. I was talking about what a smart policy would be, not what was constitutionally required (though I haven't really studied the issue and there may be arguments that it is or should be const. required)."

it's only constitutionally required if you are judicially activist :)

legislatures can put whatever handcuffs on cops they want.


"BTW, I wouldn't assume I don't see the cases where someone offers an explanation and is let go. In my jurisdiction the DA is required to hand over ALL evidence gathered in the case, so if they question someone and later don't charge it, I get the audio. So, I see this a lot."

you won't see them if the cops let the guy go instead of charging.

again, selection bias.

as for those cases that are sent off for prosecutor review, where the prosecutor declines at least in aprt because of the defendant's statement, i don't know if in your jurisdiction, you would ever see it. how would you even be aware of it if a guy is never even charged? why would he hire you if he was never charged?

" I also see innocent people charged because of very superficial differences in stories (one estimates it was 7:30 and one estimates it was close to 9). If you get two people to describe the same incident, there WILL be differences in their story, regardless of their honesty."

of course. anybody with 10 minutes of street experience knows that. if people's stories are TOO close it's a near certainty they have colluded at a minimum, if not they are outright lying.

that's crap you learn in the first year for pete's sake. also, anybody who watches law and order :)
5.9.2008 7:06pm
hattio1:
Whit,
As to why I would have learned of this, that's what I was trying (apparently unsuccessfully) to clarify with the follow-up post. Let me be more clear. Cops talk to person A who gives them a story they believe and decide not to arrest him. Cops talk to person B and arrest him. I am appointed to person B. I get the audio of cops talking to person A...and maybe C, D, F, and Y, depending on the number of interviews they did.
5.9.2008 7:13pm
hattio1:
Whit says,

and like i said again, WHEN innocents HELP THEMSELVES by providing statements they are less likely to be booked, less likely to be charged, and less likely to be convicted.


Agreed, but, Joe Citizen can never know whether providing a statement is going to help him or hurt him. It all depends on what the cop wants to believe and how open the cop is to the evidence. Frankly, even when people are telling the cops the truth, some stories just sound like bullshit when compared to the intially gathered evidence. That's not really the cops fault, but there is an institutional inertia not to let the person out without SOME type of plea once they have been charged.
5.9.2008 7:17pm
hattio1:
Whit,
As to arresting innocents. Okay, aside from DV. My point is that you don't believe you have arrested innocents with reasonable stories, because if you believed they had a reasonable story, you wouldn't arrest them. But, I'm convinced that you are human, and like the rest of us, are unreasonable at times. And Innocent Joe Citizen can never know when those times are.
5.9.2008 7:28pm
whit:
"Agreed, but, Joe Citizen can never know whether providing a statement is going to help him or hurt him."

you can never know anything for sure. most joe citizens know that if they are innocent, that talking to the cops is in their best interest. most joe innocents DO so. i see this happen multiple times a DAY.

are there some circumstances where an innocent can hurt his case by doing this? yes.

" It all depends on what the cop wants to believe and how open the cop is to the evidence."

no, it doesn't. it primarily matters whether the suspect's statements can be corroborated, match physical evidence, sound reasonable (to a cop and/or prosecutor and/or jury if it gets that far).

" Frankly, even when people are telling the cops the truth, some stories just sound like bullshit when compared to the intially gathered evidence."

of course.

" That's not really the cops fault, but there is an institutional inertia not to let the person out without SOME type of plea once they have been charged."

if the prosecutor is doing his job, there is no inertia to seek a plea when the person does not appear guilty beyond a reasonable doubt.

and again, MOST cases where a suspect talks to the police and clears himself never GET to a prosecutor
5.9.2008 7:35pm
whit:
A"s to arresting innocents. Okay, aside from DV. My point is that you don't believe you have arrested innocents with reasonable stories, because if you believed they had a reasonable story, you wouldn't arrest them."

not necessarily.

frankly, it depends.

i think it's a near CERTAINTY that i have arrested innocents, even apart from DV's. given sufficient "n", it's a near certainty. simply put, witnesses/victims can lie, often convincingly, and circumstances can simply result that makes an innocent appear guilty to the extent that there is probable cause. that's undeniable.

you have to accept that innocent people are going to be arrested. you could lessen that statistical frequency by requiring a higher standard of evidence, but you would do less to protect the public.

heck, you could require that cops can't arrest for an offense unless they witness it, or have TWO witnesses.

unfortunately that would mean many crimes, from robbery to DV, to rape, etc. you would not be able to arrest people for in many circ's.

the point is a good cop is skeptical of EVERYBODY - suspects, victims, witnesses, etc. he looks for inconsistencies (hobgoblin of little minds and all), consistencies, physical evidence, the "smell test", and he vigorously questions everybody. if there is one thing you learn it's that ANYBODY can be lying to you.

" But, I'm convinced that you are human, and like the rest of us, are unreasonable at times. And Innocent Joe Citizen can never know when those times are"

you keep missing the point. if he is truly innocent, then even if the COP is unreasonable in accepting what suspect has to say, his at scene/precinct statements are still available for hte prosecutor and/or judge/jury to review.
5.9.2008 7:44pm
whit:
"As to arresting innocents. Okay, aside from DV. My point is that you don't believe you have arrested innocents with reasonable stories, because if you believed they had a reasonable story, you wouldn't arrest them"

to put this briefly, an innocent is not always (heck, frequently) is not going to be able to talk his way out of arrest. because, among other reasons, it is often difficult to "prove a negative".

that's a given.
5.9.2008 7:46pm
jccamp:
Radley,

Maybe we can agree on some of this. I can't think of very many valid no-knock situations. Neither of the 2 cases (Maye or Diotaiuto) strikes me as particularly compelling in the need for a no-knock warrant. But I still think that even in a no-knock service, the cops will be loudly and persistently announcing who they are. Not to identify yourself is counterproductive. The principle difference in a no-knock service is that the police do not wait whatever a "reasonable" time is before forcing entry. Unless either an officer or resident is shot right in the front doorway, I'm unclear on the impact of the lack of waiting time, if the cops identify themselves. At least in Maye, the issue is whether the cops announced their official presence and purpose. Maye had time to retreat to another room, arm himself and even load the firearm. (Do I remember that correctly?) So it wasn't the no-knock nature of the warrant that lead to the officer's death, it was the confusion about who was intruding - if you accept the defendant's version.

The other case doesn't provide sufficient detail to illuminate the critical failure that lead to the suspect's death.

Maybe the real issue is people who break the law, even if minor laws, and then take a gun in their hand when they panic on confrontation with cops. Maybe we should be studying why such persons do things that are not in their own self-interest.

I also see a slight disconnect in the implicit criticism of the Maye search team's lack of experience and training, and the (contradictory) continued rather harsh treatment of presumably trained and experienced "paramilitary" SWAT. But, see below...

I'm also mildly interested in a police jurisdiction that has so little victim-based crime that they have time to obtain and serve search warrants on small quantity marijuana sales. I suspect there's a better applications for their time.

Last, I might comment on the entire SWAT persona thing. If the search warrant teams were similarly trained and disciplined, but weren't dressed like a guy from HALO, would there be as much criticism? I have a personal aversion to the helmet-ski mask-knee and elbow armor-look, at least in most circumstances. Appearances do matter. I think sometimes SWAT teams (I know, a redundancy) are the refuge of the cop with a self-image problem. All that paramilitary stuff may appeal to the wrong personality.

But, having said all this, your tone is overly broad in condemning police search warrant service. Back to the Maye case, why was a warrant issued in the first place? it never would have passed a CO's desk, let alone would it have been signed by a sitting judge in a different jurisdiction. We're talking about rural cops, many with nothing better than a HS diploma or GED, with no formal training on what the state of search warrants is in this decade, who are doing the best they can. Where was the prosecutor who should have prior approval of any warrant? Where was oversight for the affiant's investigation? Instead of all this vituperative criticism, maybe some of the experts posting here can volunteer to teach some basic search-and-seizure applications at their local PD.

One last thing - I hate the War on Drugs and the controlled substance statutes generally. I thought that Prohibition proved the folly of this stuff. But the laws are on the books, the nexus of illegal narcotics and other crime is unquestioned, and cops have a responsibility to enforce the laws, regardless of personal opinion. Want to avoid all this? Convince someone at the Federal level to de-criminalize drugs. We can't possibly have things much worse.
5.9.2008 7:55pm
jccamp:
"As an aside, fabric is not that easy to get rid of in general, and even with knock warrants I think they only have to wait a short time."

Hattio -

Sorry, i should have been more clear. Trace evidence, especially organic trace evidence, can be rendered completely unusable by, for instance, throwing a clothing item with bloodstains in a bowl of bleach. I wasn't suggesting time sufficient to destroy an entire piece of clothing.

Common sense would dictate the need for timely entry. A firearm (or the anvil) is not going to dissipate in bleach and water. The murder victim's driver's license could get flushed in a hurry. it's all relative.

Yes, entry can be forced fairly quickly, which is the reason that no-knock warrants should be extraordinary, not commonplace. We do agree on that.

What I was trying to suggest with the tunnel-vision thing as one possible explanation was that placing the blame squarely on cops 100% of the time is hardly reasonable or helpful. Some people may not hear the police identifying themselves. Some people may panic and act irrationally. That does not absolve them from responsibility if they break the law, and then take a gun in their hand when the cops show up. It also does not matter if the original offense was relatively minor. When you arm yourself in the face of civil government, you have moved into a new level of offense.
5.9.2008 8:16pm
David Schwartz (mail):
In any event, I think the better argument should have been to rely on causation: if violation of the K&A rule does not change the evidence recovered, then the evidence recovered is not the fruit of a poisonous tree. Under that approach, there would have been a suppression remedy in theory but it would have rarely applied because of the causation problem.
Not getting a warrant doesn't change the evidence recovered if you could have gotten a warrant. But we exclude the evidence in that case. We do that because we want police to follow procedures. Violating K&A is just like searching without a warrant -- a risky rights-violating process that's supposed to be subject first to judicial scrutiny gets none.

I find the argument that there's less incentive to violate K&A more plausible. But if there are no penalties in practice, then low incentive isn't enough.
5.10.2008 8:03am
Radley Balko (mail) (www):
But, having said all this, your tone is overly broad in condemning police search warrant service. Back to the Maye case, why was a warrant issued in the first place? it never would have passed a CO's desk, let alone would it have been signed by a sitting judge in a different jurisdiction. We're talking about rural cops, many with nothing better than a HS diploma or GED, with no formal training on what the state of search warrants is in this decade, who are doing the best they can. Where was the prosecutor who should have prior approval of any warrant?

I'm not sure I understand your criticism, here. All of those things factored into the raid that night. And I've been critical of all of them. This is a complicated problem. It isn't just the raids. It's the fact that forced-entry warrants (and that's the problem — even K&A raids are really no different from no-knocks when you're conducting them at 2am) are executed with too little oversight, transparency, and accountability. I've looked at all of this pretty extensively in Overkill the paper I wrote on all of this for Cato a couple of years ago.

Look at Atlanta. We now know that police there routinely lied on affidavits and search warrants going back a decade or more. There must have been thousands of raids done in that city over the last 10 years under false pretenses—all rubber-stamped by judges and prosecutors with little or no oversight.

I'm not convinced with your argument that the police routinely announce as they're coming in, therefore everyone inside should know not to resist. An announcement as the battering ram hits the door, at 2am, just after you've deployed a flashbang, isn't really notice, and you can't expect the people inside the home, under those circumstances, to immediately know what's going on. These raids are designed to take suspects by surprise. Flashbangs are designed to confuse and bewilder. Why are we then reluctant to believe the people on the other end of these raids when they way they were, in fact, taken by surprise, bewildered, or confused?

Maybe the real issue is people who break the law, even if minor laws, and then take a gun in their hand when they panic on confrontation with cops.

The problem is that the people don't know that the confrontation is with the police. Unless your point is that if you've broken a minor law, you should just assume the police may break into your home. I hope that isn't your point. That sounds a lot like a police state to me. Cory barely had enough marijuana in his home to make a misdemeanor. The point here is that if you aren't committing any felonies, you should be able to be reasonably sure that the police aren't going to be breaking your door down in the middle of the night. And since we do have the right to defend our homes, if someone is breaking into your home in the middle of the night, you should be able to arm and defend yourself.

One other thing—even an announcement isn't fool-proof anymore. There have been dozens of cases over the last few years now of criminals pretending to be raiding police to get easy entrance into a home. This dramatic increase in paramilitary tactics has had consequences.

I think we do agree on much. I'm not at all opposed to SWAT teams or forced entry. I just think they should be used in situations where there is already a violent situation, or a clear and imminent threat of violence. Unfortunately, in the vast majority of cases, these tactics are being used to serve drug warrants. Which means you're unnecessarily creating violent, volatile confrontations, not ameliorating them.

Oh, and the warrant in the Maye case was not a no-knock warrant. But there are all sorts of issues with how it was obtained. The main issue is if Maye knew or should have known the men breaking into his home were the police. I think given his background, what he had (or didn't have) in his house, and that the officer on the other side of the duplex didn't hear an announcement (that's not necessarily to say one wasn't given—only that an officer one room over in the same house didn't hear it), there's more than reasonable doubt, here.
5.10.2008 10:27am
PC:
Here's another case to follow if you're interested in the new professionalism:

Andrew Glover, 60, of New Britain filed a notice with the city Thursday that he intends to pursue a federal civil rights lawsuit. He accused the officers of inflicting severe injuries as he was recovering from intestinal surgery in February.

Glover's lawyer, Paul Spinella, said police entered Glover's apartment Jan. 30 and Feb. 28. Glover wasn't involved in child pornography, has not been charged and has no criminal record, Spinella said.

"The poor guy," Spinella said. "They ripped the catheter off his person. They assaulted the guy. He's got major problems as a result of this. He's a mess now."
...
The police didn't have search warrants, Spinella said.


It should be interesting considering Mapp.
5.10.2008 11:31am
jccamp:
Even though this thread is pretty much DOA, I felt I should add this. I exchanged emails with Radley Balko, and we perhaps have more in common that in opposition. Since I bashed him pretty well, I should now admit that I was too harsh in my estimation of what he was saying. I am not sorry I'm quick to defend cops' actions - that's what I do. But Radley made some very valid points and I overreacted.

I don't post many mea culpa's. Good thing this thread is yesterday's news.

JC
5.10.2008 7:33pm