Unlawful Entry

         Its early morning. The sun has just risen over a small desert town. A cordon of several vehicles surrounds a single home. Six heavily armed men in body armor crouch outside the front door of the residence. They sweat under the many layers of gear and equipment, and their hands nervously fidget on their guns as adrenaline pumps through them. The first man in the stack hits the door with a ram, it bows inward. The next hit knocks it wide open. He moves to the side as the five men behind him assault the building. They progress quickly through the house with well-trained movements as each man covers his corners and sectors of fire. Suddenly a figure appears with a rifle.  The first man to spot the armed individual fires. The others follow with rehearsed precision, striking the threat twenty-two times. The target building is secure; the hostile bleeds out in four minutes.

         This scene is not from one of the wars in Afghanistan or Iraq. It happened in Tucson, Arizona, less than 20 miles from the house I grew up in, one year ago. The men involved were not soldiers but members of the Pima County SWAT team. The hostile was not some terrorist or insurgent but decorated U.S. Marine Jose Guerena, sleeping at home after a twelve-hour shift working in a mine. Jose never fired a single shot at the officers; in fact his AR-15 was found with the safety still on. His wife and son were discovered hiding in a closet from what they thought was a robbery. The warrant for “searching” Guerena’s house was for alleged drug trafficking, yet no drugs were located and no one was ever charged in the investigation that lead to Guerena. The sad fact is that this kind of incident is becoming all too common across the United States as police and judges turn to more “no-knock warrants” to search and arrest.

         The difference between a regular warrant and a no-knock warrant is vital. Vice and civil liberties analyst Radley Balko writes that “a ‘no-knock’ raid occurs when police forcibly enter a private residence without first knocking and announcing that they're the police.” It could easily confuse residents for police to not announce themselves as such. If law enforcement took this approach to traffic stops then we would be pulled over by unmarked cars, with officers in plain clothes pointing guns at us every time we were caught speeding. There is a reason they use designated police cars, sirens, and uniforms. A huge facet of law enforcement is the fact that people knowing who they are so they can comply with what the police want them to do. The declaration of “Police!” is so we know who are legitimate peace officers and who are vigilantes and criminals. People naturally assume someone breaking into their house is a trespasser, not a cop. To extrapolate, “the centuries-old ‘Castle Doctrine’ from English common law,  states that a man has the right to defend his home and his family from intruders […] and [protects] those same homeowners from the burden of determining if the armed intruders in their home are police or criminals” (Balko).  It makes complete sense that the person whose home is being raided should not have to figure out whether the intruders are cops or robbers. The police should have the obligation of identification placed on them, or else the result may be an unfortunate recipe for accidental cop killings and unnecessary civilian deaths.

         The bizarre legality of no-knock warrants comes into question. The Fourth Amendment to the Constitution guards against unreasonable search and seizure; however, strangely enough, the courts are finding these warrants perfectly reasonable. The United States Department of Justice even goes so far as to say that officers can make a no-knock entry even if a judge refuses to grant it:

In holding that the magistrate's refusal to include "no-knock" authorization in the warrant did not itself render the officers' subsequent no-knock entry constitutionally unreasonable, the Richards Court emphasized that, for Fourth Amendment purposes, “the reasonableness of the officers' decision . . . must be evaluated as of the time they entered” the premises to be searched.

         Continuing this thread of absurdity, the Department of Justice finds that if officers discover the information they have on a suspect (for instance, that they are armed or on drugs) is incorrect they still can execute a no-knock assault: “Thus, in United States v. Spry, the Seventh Circuit held that ‘the district court correctly determined that the law does not require officers, after obtaining a no-knock warrant, to make an independent determination of the exigent circumstances at the time of entry.’” These rulings effectively mean that police can not only choose to enter a private residence without declaring their presence but can do so even when judges expressly tell them not to. The reasonable common law rule of “knock-and-announce” that has been a codified part of the Fourth Amendment for centuries is now based on the whims of street cops. Riot squads could choose to smash their way into your home at their discretion even if they know you aren’t armed or dangerous. This paves the way for paramilitary units entering domiciles with impunity, all in the name of “security”.

         Even the federal law enforcement agencies that use such warrants acknowledge their unconstitutionality. The Drug Enforcement Administration includes in their handbook that “Federal law does not contain a provision for a ‘no knock’ warrant. Although some states still issue ‘no knock’ warrants, DEA Agents need to recognize that such warrants are actually no different than a normal warrant with respect to the duty to knock and announce. The duty to knock and announce before entering a residence is a matter of Federal constitutional law.” Although one of the largest law enforcement agencies in the country acknowledges their unconstitutionality, the courts are making it even easier for officers to execute no-knock raids, even when not given permission, or when there is no need for it.

         The responsibility of identifying cop or criminal has transferred from the private citizen to law enforcement and represents a radical shift of power from individual liberty to police authority. This huge new power can unfortunately only lead to abuses by officers. It may sound farfetched to some that the police would us this power to commit crime. The sad truth is that this is already happening. In Los Angeles the news has already run headlines such as “Two former police officers were convicted in federal court Wednesday of participating in a robbery ring that disguised home invasions as drug raids.” If police continue to use “no-knock” warrants to bust into households without identifying themselves and giving warning, then we can expect to see more headlines like that, in more cities. Law enforcement is here to protect the innocent from those who would do them harm, but these new warrants do the opposite of that and harm the innocent more than they protect them.



         

Sources

Balko, Radley. “No SWAT.” Slate 6 Apr. 2006. CATO Institute. Web. 11 Apr. 2012.

“Robbery Ring Disguised as Drug Raids Nets Convictions for Former LA Cops.” Fox News.

FoxNews.com, 30 Jan. 2008. Web.  11 Apr. 2012.

United States. Dept. of Justice. Office of Legal Counsel.  Authority of Federal Judges and

Magistrates to Issue "No-Knock" Warrants. By Patrick Philbin. 12 Jun. 2002. Drug Enforcement Administration. Web. 11 Apr. 2012.