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Did the Supreme Court Flush the Fourth?

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Two hundred and six years after the adoption of the Bill of Rights, the big issue for the U.S. Supreme Court is toilets. Specifically, has the invention of flush toilets nullified American’s traditional right of privacy in their homes and enabled police to smash down their doors on the slightest pretext?

Truly, these are glorious times in which we live. On March 28, 1995, the Supreme Court heard oral arguments in the case of Wilson v. Arkansas to determine whether the U.S. Constitution mandates a “knock-and-announce” rule before police routinely batter their way into people’s homes to execute a search warrant.

The Fourth Amendment declares: “The right of the people to be secure in their . . . houses . . . against unreasonable searches. . . shall not be violated. . . .” This is the first major no-knock case that the Court has taken in over 30 years. In the previous case, Ker v. California , the Court split sharply, with five justices denying that a no-knock rule is required, and four finding that no-knock rules (except in exigent circumstances) violate the Bill of Rights.

Sharlene Wilson was not exactly a poster girl for constitutional rights. The brief for the state of Arkansas repeatedly characterized her as a “drug dealer.” She had been sentenced to 30 years in prison for two sales of marijuana to a government confidential informant (an old friend of Wilson’s who herself had been recently busted and had turned snitch to avoid doing time). Wilson herself had previously worked as a government drug snitch. After the second drug sale, the police got a warrant to search Wilson’s home and entered without warning on December 31, 1992. They found a tiny amount of marijuana and methamphetamine.

Though Wilson was nailed for drug dealing, her sales were picayune — a half ounce of marijuana for $70 and, a month later, $35 for a quarter-ounce of marijuana. For this, she got 30 years. This raises the question of whether Arkansas got its drug laws from Singapore or whether Singapore got its drug laws from Arkansas. The state of Arkansas will spend hundreds of thousands of dollars prosecuting and incarcerating Wilson for the sale of barely $100 worth of reefer. And this in a state that lacks even the money to decently pave its roads!

John Wesley Hall, an Arkansas attorney and the author of a two-volume treatise on the Fourth Amendment, petitioned the Supreme Court to overturn Wilson’s convictions for marijuana possession and drug paraphernalia, claiming that the no-knock raid was unconstitutional. (Hall did not challenge the convictions for drug dealing.) Hall received no pay for representing Wilson; he said he took the case as a matter of principle.

In his brief, Hall stressed that the knock-and-announce rule for police searches stretches back to at least 1603 in English common law — and perhaps all the way back to a law enacted in 1275. (Hall’s brief also cited this writer’s book, Lost Rights, and this writer’s articles in Playboy magazine.) Hall’s brief also documented numerous recent, abusive, no-knock raids. In one case in Missouri, police stood outside an apartment door listening to a couple inside making love, decided that they were actually destroying drugs, and smashed down the door. (“Didja hear that woman grunt? Sounds like they’re destroying drugs, don’t it, Vern? We better bust in!”)

Hall, a short, distinguished-looking gentleman, opened his presentation to the justices by noting that, after all the concern about toilets versus privacy rights in the government’s briefs in this case, the government’s position boiled down to this: “What they’re saying is — the Solicitor General says, the more drugs you’ve got, the more right you have to an announcement” from police conducting a search before they smash in the door.

Justice Ruth Bader Ginsberg fretted about the danger of the loss of evidence in searches for “marijuana in places with indoor plumbing.” Justice Scalia split the bull’s-eye: “With respect to water, Mr. Hall, is the advent of the indoor toilet relevant to the Fourth Amendment analysis?”

Hall conceded that flush toilets could present the threat of destruction of evidence in some cases, but noted that police could simply turn off the water of a house before they searched it in order to minimize the destruction of evidence. Hall illustrated the dangers of no-knock raids to citizens and police, mentioning one case where a policeman shot and killed a man holding an ashtray and later claimed he thought the ashtray was a gun (perhaps an Uzi? or a Stryker 12 Streetsweeper shotgun?).

Chief Justice Rehnquist, who never saw a drug-case defendant that he didn’t loathe, asked if a “maverick” police officer clubs or beats up an innocent person in the house, might that endanger the evidence against guilty people in the house? If someone talked about a “maverick” spectator at the Court whacking one of the justices with a brick after he asked an especially stupid question, the justices would be outraged. To characterize a policeman who wantonly attacks innocent citizens as a “maverick” illustrates how out of touch some justices are to the realities of police terrorism in some American cities.

Some of the justices were haunted by the thought that recognizing a knock-and-announce rule might result in the suppression of evidence when police violated the rule. But Rehnquist asked whether someone victimized by an abusive, unjustified no-knock raid couldn’t simply sue for damages. Hall explained that such lawsuits almost never go anywhere in court. Rehnquist dismissed Hall’s concerns: “You’re just talking practicalities.” Since some of the justices prefer to dwell in never-never land whenever they consider police behavior, Hall’s real-world points were considered completely irrelevant.

Hall clearly conceded that there would be plenty of cases where exigent circumstances would justify police making no-knock entries but that rules should be clearly established to govern such conduct. Justice Rehnquist sharply disagreed with Hall’s implication “that we should exercise the judgment of whether it’s a wise thing for the policeman to go crashing in or not” to carry out a search. Yet, by not creating any guidelines at all, the Supreme Court essentially gives police unlimited power to smash into any home. (Many state constitutions and state supreme courts have already put restraints on no-knock raids). Several justices seem to implicitly assume that nearly all police are infallible and nearly all citizens are guilty as hell.

After the justices finished fretting over Hall’s arguments, J. Winston Bryant, the attorney general of Arkansas, took the floor. With the typical obsequiousness to government titles, the justices continually referred to Bryant as “General” — adding a goofy tone to the proceedings that would have better befitted a Marx brothers’ movie.

Bryant was a tall, grey-haired, plodding fellow — the sort of guy that makes Al Gore look perky. Justice Anthony Kennedy tried to pin Bryant down on what behavior might possibly violate the Fourth Amendment: How about if the police used battering rams to carry out every search? How about if police just kicked in the door every time?

Bryant responded like the cartoon character Wiley E. Coyote, jumping off one cliff after another at the behest of the roadrunner. Bryant denied that any police tactics, regardless of their violence, should ever be an element in considering the reasonableness of a search — and thus its constitutionality. Looking flustered, Bryant explained: “Arkansas is not asking this Court to prohibit knock-and-announce” police searches. If Bryant had been allowed to go past his 15-minute limit, he might have endorsed preemptive nuclear strikes as a reasonable way to serve a search warrant.

Bryant’s babbling irritated even the Court’s conservative members. Justice Sandra Day O’Connor declared: “I, for one, can’t buy your proposal at all.” Justice Scalia declared: “I’m going to decide this case on the basis of whether I think there was a knock-and-announce rule at common law when the Fourth Amendment was adopted.”

To gain further insight into contemporary Arkansas thinking about the Constitution, the brief for the state of Arkansas contained valuable insights:

“As for those cases in which the officers may go to the wrong house, the mistake is either redressable because the officers will have acted beyond the scope of the warrant or do not violate the Fourth Amendment in any event.

“The only invasion of privacy about which petitioner may complain is the presence of the police in her house during the brief period that they would have been standing outside had they knocked and waited to be admitted.”

(This line of reasoning could lead to the banning of all bathroom doors and doors on toilet stalls — since only a few seconds of privacy are involved in government agents’ barging in on people’s private business.)

Arguing for the abandonment of the knock-and-announce rule adopted in the seventeenth century, the state of Arkansas claimed:

“A common law rule which usually protected unwary citizen process servicers . . . hardly seems constitutionally compelled to protect professional police forces today .”

The brief never got beyond the idea that the sole concern in police searches should be maximizing the safety of the police. And the repeated references to contemporary “professional police forces” is ludicrous considering the number of abusive cases of no-knock raids.

Next up at the oral hearings came Michael Dreeben, a very proper-looking lawyer from the U.S. Justice Department, who urged the Court to uphold the ruling and not recognize that the Bill of Rights mandates a knock-and-announce rule — even though the U.S. Congress mandated such a rule for federal agents in 1917.

Justice Kennedy asked Dreeben if the Clinton administration thought that no-knock entries were always justified. Dreeben granted two important exceptions — first, that “if based on confidential informants the police know that all the drugs in question are stored in relatively indestructible crates,” and second, if a search warrant was being executed for stolen televisions, there “would be no reason to believe that the occupants would have any means of being able to destroy the televisions.”

Some of the justices did backwards somersaults to give any presumption of credibility to law enforcement. Justice Breyer at one point referred to “confidential informants” with a tone of reverence. With this attitude, the justices simply refuse to stop and look at the rotten pretexts behind so many abusive no-knock raids. The National Law Journal reported in February 1995 that between 1980 and 1993, the number of federal search warrants relying exclusively on confidential informants nearly tripled, from 24% to 71%, and that “from Atlanta to Boston, from Houston to Miami to Los Angeles, dozens of criminal cases have been dismissed after judges determined that the informants cited in affidavits were fictional.”

In the hour-long bantering on the Wilson case, the starkest fact was the unrealistic concept that many justices appeared to have about modern law enforcement tactics. The issue was never whether the officers of many police departments are now routinely dressing and acting like terrorists — with their black Ninja outfits, their masks, their submachine guns, and their battering rams — but whether the invention of flush toilets destroyed any remnant of the right to privacy in one’s home.

The Founding Fathers considered the Supreme Court to be a bulwark against government’s violations of citizens’ rights. Now, in a pathetic parody of original intent, some of the justices instead seemed terrified that tolerating even a remnant of respect for people’s privacy and dignity — if not safety — may undermine convictions of small-time drug dealers or users.

Abusive searches by the British helped sparked the American Revolution. Nowadays, the biggest abuse for some justices seems to be the specter of a doobie down the drain. As John Wesley Hall noted: “Isn’t government’s interest in getting drugs off the street satisfied by flushing them down the toilet?”

On May 22, 1995, the Supreme Court unanimously ruled that “in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment.” This is not quite a path-breaking decision — any more so than if the Court announced that “in some circumstances the seizure of a citizen’s property might be unreasonable under the Fifth Amendment.” The opinion, written by Justice Clarence Thomas, noted: “For now, we leave to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable.” The Court essentially punted on the issue — though it did at least avoid swallowing the authoritarian arguments of Arkansas. Unfortunately, the Court did not address the issue of no-knock searches in pursuit of small amounts of drugs.

Obviously, the friends of freedom still have much work to do on the issue of no-knock raids.

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.