No SWAT.

The law, lawyers, and the court.
April 6 2006 3:30 PM

No SWAT

The most important Supreme Court case you've never heard about.

Sometime this spring, the Supreme Court will hand down its decision in the case of Hudson v. Michigan. At issue is whether or not police who used an illegal "no-knock" raid to enter a defendant's home can use the drugs they seized inside against the defendant at trial. To understand the importance of this case, some background is in order. 

As the name indicates, a "no-knock" raid occurs when police forcibly enter a private residence without first knocking and announcing that they're the police. The tactic is appropriate in a few limited situations, such as when hostages or fugitives are involved, or where the suspect poses an immediate threat to community safety. But increasingly, this highly confrontational tactic is being used in less volatile situations, most commonly to serve routine search warrants for illegal drugs. 

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These raids are often launched on tips from notoriously unreliable confidential informants. Rubber-stamp judges, dicey informants, and aggressive policing have thus given rise to the countless examples of "wrong door" raids we read about in the news. In fact, there's a disturbingly long list of completely innocent people who've been killed in "wrong door" raids, including New York City worker Alberta Spruill, Boston minister Accelyne Williams, and a Mexican immigrant in Denver named Ismael Mena

It's impossible to estimate just how many wrong-door raids occur. Police and prosecutors are notoriously inept at keeping track of their own mistakes, and victims of botched raids are often too terrified or fearful of retribution to come forward. But over the course of researching a paper for the Cato Institute on the subject, I've found close to 200 such cases over the last 15 years. And those are just the cases that have been reported.

It's bad enough when the police serve a no-knock warrant at the wrong place. But this is not regular service of a warrant. No-knock raids are typically carried out by masked, heavily armed SWAT teams using paramilitary tactics more appropriate for the battlefield than the living room. In fact, the rise in no-knock warrants over the last 25 years neatly corresponds with the rise in the number and frequency of use of SWAT teams. Eastern Kentucky University criminologist Peter Kraska, a widely cited expert on the "militarization" of domestic police departments, estimates that the number of SWAT team deployments has jumped from 3,000 a year in the early 1980s to more than 40,000 a year by the early 2000s.

In the 1995 case Wilson v. Arkansas, the Supreme Court for the first time ruled that at least in principle, the Fourth Amendment requires police to knock and announce themselves before entering a private home. In doing so, the court acknowledged the centuries-old "Castle Doctrine" from English common law, which states that a man has the right to defend his home and his family from intruders. The announcement requirement gives an innocent suspect the opportunity to persuade the police that they've targeted the wrong residence before having his home invaded. It also protects police from being targeted by innocent homeowners who have mistaken them for criminal intruders and those same homeowners from the burden of determining if the armed intruders in their home are police or criminals.

But Wilson didn't eliminate no-knocks. In the same decision, the court recognized three broad exceptions, called "exigent circumstances," to the announcement requirement. The most pertinent of these state that if police believe announcing themselves before entering would present a threat to officer safety, or if they believe a suspect is particularly likely to destroy evidence, they may enter a home without first announcing their presence.

A legal no-knock raid, then, can happen in one of two ways. Police can make the case for exigent circumstances to a judge, who then issues a no-knock warrant; or police can determine at the scene that the exigent circumstances exist and make the call for a no-knock raid on the spot. In the latter case, courts will determine after the fact if the raid was legal.

In the real world, the exigent-circumstances exceptions have been so broadly interpreted since Wilson, they've overwhelmed the rule. No-knock raids have been justified on the flimsiest of reasons, including that the suspect was a licensed, registered gun owner (NRA, take note!), or that the mere presence of indoor plumbing could be enough to trigger the "destruction of evidence" exception.

In fact, in many places the announcement requirement is now treated more like an antiquated ritual than compliance with a suspect's constitutional rights. In 1999, for example, the assistant police chief of El Monte, Calif., explained his department's preferred procedure to the Los Angeles Times: "We do bang on the door and make an announcement—'It's the police'—but it kind of runs together. If you're sitting on the couch, it would be difficult to get to the door before they knock it down."